2001 REGULAR SESSION (71st) A AB133 R2 1044
Amendment Box: Replaces Amendments Nos. 871 and 944. Resolves conflict with A.B. No. 621. Makes substantive changes.
ASSEMBLY ACTION Initial and Date |SENATE ACTION Initial and Date
Adopted Lost | Adopted Lost
Concurred In Not |Concurred In Not
Receded Not | Receded Not
Amend sec. 5, page 2, by deleting lines 7 through 11 and inserting:
“each residence or appurtenance to the extent known.”.
Amend sec. 5, page 2, between lines 34 and 35, by inserting:
“5. An alleged constructional defect which is discovered after an action pursuant to NRS 40.600 to 40.695, inclusive, and sections 2 to 11, inclusive, of this act, has been commenced may not be alleged in an amended pleading until the contractor, subcontractor, supplier or design professional who performed the original construction which is alleged to be a constructional defect has been given:
(a) Written notice in the manner required by this section; and
(b) A reasonable opportunity to repair the alleged constructional defect in the manner provided in section 6 of this act.
6. A court shall dismiss an action commenced against a contractor, subcontractor, supplier or design professional by a claimant who has failed to comply with the requirements of this section.”.
Amend sec. 6, page 3, by deleting line 25 and inserting:
“pursuant to subsection 1. A court shall dismiss an action commenced against a contractor, subcontractor, supplier or design professional by a claimant who has failed to comply with the requirements of this subsection.”.
Amend sec. 6, page 3, line 34, by deleting:
“repairs is not” and inserting “repairs is”.
Amend sec. 7, page 4, line 4, after “act” by inserting:
“or who received notice pursuant to subsection 4”.
Amend sec. 7, page 4, line 13, by deleting “The” and inserting:
“Except as otherwise provided in subsection 4, the”.
Amend sec. 7, page 4, between lines 18 and 19, by inserting:
“4. If, after the expiration of the time set forth for a contractor to provide a notice to a subcontractor, supplier or design professional pursuant to section 5 of this act, a contractor identifies a subcontractor, supplier or design professional who the contractor was not, after a good faith effort, previously able to identify and who may be responsible for a constructional defect alleged by the claimant, the contractor shall, before commencing an action against such a subcontractor, supplier or design professional:
(a) Provide notice to the subcontractor, supplier or design professional in the manner provided in subsection 2 of section 5 of this act; and
(b) Allow a reasonable opportunity for the subcontractor, supplier or design professional to make repairs to the alleged constructional defect.
5. Subject to the provisions of subsection 2, the claimant shall allow a subcontractor, supplier or design professional notified pursuant to subsection 4 a reasonable opportunity to make repairs.
6. A court shall dismiss an action commenced against a subcontractor, supplier or design professional by a contractor who has failed to comply with the requirements of subsection 4.”.
Amend sec. 8, page 4, line 21, after “5” by inserting “or 7”.
Amend sec. 9, page 4, by deleting lines 45 through 47.
Amend sec. 9, page 4, line 48, by deleting “3.” and inserting “2.”.
Amend sec. 10, page 6, by deleting lines 11 through 15 and inserting:
“6. As used in this section, “expert” means a person who is licensed in a state to engage in the practice of professional engineering, land surveying, architecture or landscape architecture.”.
Amend sec. 18, page 11, by deleting lines 37 and 38 and inserting:
“40.692 [If,] Except as otherwise provided in sections 5 and 7 of this act, if after complying with the procedural requirements of sections 5 and 7 of this act and NRS 40.645 and 40.680, or NRS 40.682, a claimant”.
Amend sec. 18, page 11, line 42, by deleting “section 5” and inserting:
“sections 5 and 7”.
Amend sec. 21, page 12, lines 36 and 37, by deleting:
“a new section to read as follows:” and inserting:
“the provisions set forth as sections 22 to 25, inclusive, of this act.”.
Amend sec. 21, page 12, line 38, before “1.” by inserting:
“Sec. 22.”.
Amend the bill as a whole by renumbering sections 22 through 25 as sections 26 through 29 and adding new sections designated sections 23 through 25, following sec. 21, to read as follows:
“Sec. 23. 1. An association may bring an action to recover damages resulting from constructional defects in any of the units, common elements or limited common elements of the common-interest community, or submit such a claim to mediation pursuant to NRS 40.680, only:
(a) If the association first obtains the written approval of each unit’s owner whose unit or interest in the common elements or limited common elements will be the subject of the action or claim;
(b) Upon a vote of the units’ owners to which at least a majority of the votes of the members of the association are allocated; and
(c) Upon a vote of the executive board of the association.
2. If an action is brought by an association to recover damages resulting from constructional defects in any of the units, common elements or limited common elements of the common-interest community, or such a claim is submitted to mediation pursuant to NRS 40.680, the attorney representing the association shall provide to the executive board of the association and to each unit’s owner a statement that includes, in reasonable detail:
(a) The defects and damages or injuries to the units, common elements or limited common elements;
(b) The cause of the defects, if the cause is known;
(c) The nature and the extent that is known of the damage or injury resulting from the defects;
(d) The location of each defect within the units, common elements or limited common elements, if known;
(e) A reasonable estimate of the cost of the action or mediation, including reasonable attorney’s fees;
(f) An explanation of the potential benefits of the action or mediation and the potential adverse consequences if the association does not commence the action or submit the claim to mediation or if the outcome is not favorable to the association; and
(g) All disclosures that are required to be made upon the sale of the property.
3. An association or an attorney for an association shall not employ a person to perform destructive tests to determine any damage or injury to a unit, common element or limited common element caused by a constructional defect unless:
(a) The person is licensed as a contractor pursuant to chapter 624 of NRS;
(b) The association has obtained the prior written approval of each unit’s owner whose unit or interest in the common element or limited common element will be affected by such testing;
(c) The person has provided a written schedule for repairs;
(d) The person is required to repair all damage resulting from such tests in accordance with state laws and local ordinances relating thereto; and
(e) The association or the person so employed obtains all permits required to conduct such tests and to repair any damage resulting from such tests.
4. As used in this section, “constructional defect” has the meaning ascribed to it in NRS 40.615.
Sec. 24. 1. Except as otherwise provided in subsection 2 and section 23 of this act, an association may commence a civil action only upon a vote or written agreement of the owners of the units to which at least a majority of the votes of the members of the association are allocated. In such a case, the association shall provide written notice to the owner of each unit of the meeting at which the commencement of a civil action is to be considered or action is to be taken within 21 calendar days before the meeting.
2. The provisions of subsection 1 do not apply to a civil action that is commenced:
(a) By an association for a time-share project governed by the provisions of chapter 119A of NRS;
(b) To enforce the payment of an assessment;
(c) To enforce the declaration, bylaws or rules of the association;
(d) To proceed with a counterclaim; or
(e) To enforce or rescind a contract to which the association is a party.
Sec. 25. 1. Notwithstanding any other provision of this chapter, the executive board of an association may, without giving notice to the units’ owners, employ a contractor licensed pursuant to the provisions of chapter 624 of NRS and such other persons as are necessary to make such repairs to a unit or common element within the common-interest community as are required to protect the health, safety and welfare of the units’ owners.
2. If the governing documents of the association require such action to be taken at a meeting of the executive board of the association, the executive board shall, within 90 days after employing any person pursuant to subsection 1, provide written notice to the units’ owners of its action and include the action on the agenda of its next regularly scheduled meeting.”.
Amend sec. 22, page 13, by deleting line 25 and inserting:
“NRS 116.3101 to 116.3119, inclusive, and section 14 of Assembly Bill No. 621 of this session and sections 22 to 25, inclusive, of this act and”.
Amend sec. 23, page 14, line 9, by deleting “21” and inserting “22”.
Amend sec. 24, pages 15 and 16, by deleting lines 28 through 49 on page 15 and lines 1 through 18 on page 16, and inserting:
“unit of a meeting at which an assessment for a capital improvement [or the commencement of a civil action] is to be considered or action is to be taken on such an assessment at least 21 calendar days before the meeting. [Except as otherwise provided in this subsection, the association may commence a civil action only upon a vote or written agreement of the owners of units to which at least a majority of the votes of the members of the association are allocated. The provisions of this subsection do not apply to a civil action that is commenced:
(a) By an association for a time-share project governed by the provisions of chapter 119A of NRS;
(b) To enforce the payment of an assessment;
(c) To enforce the declaration, bylaws or rules of the association;
(d) To proceed with a counterclaim; or
(e) To protect the health, safety and welfare of the members of the association. If a civil action is commenced pursuant to this paragraph without the required vote or agreement, the action must be ratified within 90 days after the commencement of the action by a vote or written agreement of the owners of the units to which at least a majority of votes of the members of the association are allocated. If the association, after making a good faith effort, cannot obtain the required vote or agreement to commence or ratify such a civil action, the association may thereafter seek to dismiss the action without prejudice for that reason only if a vote or written agreement of the owners of the units to which at least a majority of votes of the members of the association are allocated was obtained at the time the approval to commence or ratify the action was sought.
10. At least 10 days before an association commences or seeks to ratify the commencement of a civil action, the association shall provide a written statement to all units’ owners that includes:
(a) A reasonable estimate of the costs of the civil action, including reasonable attorney’s fees;
(b) An explanation of the potential benefits of the civil action and the potential adverse consequences if the association does not commence the action or if the outcome of the action is not favorable to the association; and
(c) All disclosures that are required to be made upon the sale of the property.
11. No person other than a unit’s owner may request the dismissal of a civil action commenced by the association on the ground that the association failed to comply with any provision of this section.]”.
Amend sec. 25, page 16, line 30, by deleting “21” and inserting “22”.
Amend the bill as a whole by renumbering sec. 26 as sec. 34 and adding new sections designated sections 30 through 33, following sec. 25, to read as follows:
“Sec. 30. Chapter 278 of NRS is hereby amended by adding thereto the provisions set forth as sections 31 and 32 of this act.
Sec. 31. 1. Except as otherwise provided in this subsection, the governing body of each city and county shall not accept an application for a building permit for a project that includes the construction of new footings or a new foundation for a structure or that requires excavation or embankment of more than 5,000 cubic yards of earth, unless the application is submitted with a geotechnical report. The governing body may waive the requirement of the geotechnical report for any project other than a project involving a residential dwelling unit.
2. The geotechnical report required pursuant to subsection 1 must include:
(a) Information concerning the soil and geology of the site where the project will be carried out;
(b) Information concerning the ground water on the site where the project will be carried out and the potential that the ground water may adversely affect the foundation of the project;
(c) A written statement from the architect, civil engineer or structural engineer who was responsible for the design of the project verifying that the design of the project is compatible with the geotechnical conditions described in paragraphs (a) and (b);
(d) A written statement from a geotechnical engineer who has reviewed the plans for the grading and foundation of the project verifying that the project is geotechnically in compliance with the geotechnical conditions of the site as described in paragraphs (a) and (b); and
(e) Any other information required by the governing body.
3. The governing body of each city and county shall require by ordinance the submission of a final report concerning grading of the property, the elevation of the finished floor and the drainage on the property for each construction project for which a geotechnical report is required pursuant to subsection 1.
4. The ordinance adopted pursuant to subsection 3 must require:
(a) The final report concerning grading of the property to include certification that the grading and the excavating or embanking work complies with the requirements set forth in the geotechnical report completed pursuant to subsection 1 and any supplements or addenda to the report;
(b) The final report concerning the elevation of the finished floor to include certification that the lowest elevation of the finished floor of the project that is habitable complies with the plans for the project that were approved by the governing body; and
(c) The final report concerning the drainage on the property to include:
(1) A statement that the conditions of the drainage system on the site of the project at the completion of the project complies with the plan for drainage or the plan for the plot and grading that was approved by the governing body; and
(2) If the plans for the project that were approved by the governing body required a drainage system or facilities, structures or devices for drainage that were designed by an engineer, verification from a civil engineer that the drainage system and any facilities, structures or devices for drainage were installed and constructed in compliance with those plans. Devices for drainage include, without limitation, detention of drainage on the site, drainage from one lot to another lot and devices for conveying drainage.
5. The governing body of each city and county shall adopt an ordinance that requires a developer to provide a person who purchases a completed construction project described in subsection 1 with a written report concerning the applicable building codes and regulations and any recommendations of a geotechnical engineer and a civil engineer concerning the use of the project. The ordinance must provide that this report is part of the sales documents that must be acknowledged by the buyer.
6. As used in this section, “residential dwelling unit” has the meaning ascribed to it in NRS 278.4977.
Sec. 32. The governing body of each city and county shall adopt ordinances to ensure the prevention and mitigation of harm to a building or structure caused by water that is standing under the building or structure.
Sec. 33. NRS 278.010 is hereby amended to read as follows:
278.010 As used in NRS 278.010 to 278.630, inclusive, and sections 31 and 32 of this act, unless the context otherwise requires, the words and terms defined in NRS 278.0105 to 278.0195, inclusive, have the meanings ascribed to them in those sections.”.
Amend sec. 26, page 16, line 35, by deleting:
“October 1, 2001.” and inserting:
“the effective date of this act.”.
Amend the bill as a whole by adding a new section designated sec. 35, following sec. 26, to read as follows:
“Sec. 35. This act becomes effective upon passage and approval.”.
Amend the title of the bill to read as follows:
“AN ACT relating to real property; requiring a claimant to provide notice concerning constructional defects to a contractor and allow the contractor to make repairs before commencing an action against the contractor; requiring a contractor to provide notice concerning constructional defects to a subcontractor, supplier or design professional and allow the subcontractor, supplier or design professional to make repairs before commencing an action against the subcontractor, supplier or design professional; requiring an affidavit in support of an action for professional negligence against a design professional; imposing certain restrictions to prevent property managers from being encouraged to file a claim for a constructional defect; requiring a contractor to provide certain information to the initial purchaser of a residence; revising the provisions governing commencement of certain civil actions by the association of a common-interest community; requiring the governing body of each city and county to require a geotechnical report as a condition to obtaining a building permit and additional information concerning a completed project; and providing other matters properly relating thereto.”.