2005 Nevada Revised Statutes - Chapter 40 — Actions and Proceedings in Particular Cases Concerning Property

CHAPTER 40 - ACTIONS AND PROCEEDINGS INPARTICULAR CASES CONCERNING PROPERTY

GENERAL PROVISIONS

NRS 40.005 Zoningrequirements to be considered by court.

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY

NRS 40.010 Actionsmay be brought against adverse claimants.

NRS 40.020 Plaintiffnot entitled to costs on default judgment or disclaimer.

NRS 40.030 Plaintiffmay recover damages for property withheld where his right terminated duringpendency of action.

NRS 40.040 Valueof permanent improvements to be allowed as setoff.

NRS 40.050 Mortgagenot deemed conveyance.

NRS 40.060 Courtmay enjoin injury to property during foreclosure.

NRS 40.070 Damagesmay be recovered for injury to possession after sale and before delivery.

NRS 40.080 Actionnot to be prejudiced by alienation pending suit.

NRS 40.090 Actionby person in adverse possession: Verified complaint; defendants; notice ofpending litigation.

NRS 40.100 Actionby person in adverse possession: Issuance, service and posting of summons;rights of unknown persons.

NRS 40.110 Courtto hear case; must not enter judgment by default; effect of final judgment.

NRS 40.120 Remedyis cumulative.

NRS 40.130 Adverseaction on mining claim.

ACTIONS FOR NUISANCE, WASTE AND WILLFUL TRESPASS ON REALPROPERTY

NRS 40.140 Nuisancedefined; action for abatement and damages; exceptions.

NRS 40.150 Actionfor waste; judgment may be for treble damages.

NRS 40.160 Actionfor trespass for cutting or carrying away trees or wood; treble damages.

NRS 40.170 Damagesin actions for forcible or unlawful entry may be trebled.

NRS 40.180 Mannerof working mine or mining claim; assessment of damages.

NRS 40.190 Continuationof judgment lien.

NRS 40.200 Applicationfor order of survey; notice and order; report of survey; costs of and damagescaused by survey.

NRS 40.210 Orderallowing party to survey and measure land in dispute; contents and service oforder; liability for unnecessary injury.

SUMMARY PROCEEDINGS FOR OBTAINING POSSESSION OF REALPROPERTY, RECREATIONAL VEHICLE OR MOBILE HOME

NRS 40.215 Definitions.

NRS 40.220 Entryto be made only when legal and in peaceable manner.

NRS 40.230 Forcibleentry defined.

NRS 40.240 Forcibledetainer defined.

NRS 40.250 Unlawfuldetainer: Possession after expiration of term.

NRS 40.251 Unlawfuldetainer: Possession of property leased for indefinite time after notice toquit; older or disabled person entitled to extension of period of possessionupon request.

NRS 40.2512 Unlawfuldetainer: Possession after default in payment of rent.

NRS 40.2514 Unlawfuldetainer: Assignment or subletting contrary to lease; waste; unlawful business;nuisance; violations of controlled substances laws.

NRS 40.2516 Unlawfuldetainer: Possession after failure to perform conditions of lease; saving leasefrom forfeiture.

NRS 40.252 Unlawfuldetainer: Contractual provisions void if contrary to specified periods ofnotice; notice to quit or surrender by colessor is valid unless showing othercolessors did not authorize notice.

NRS 40.253 Unlawfuldetainer: Supplemental remedy of summary eviction and exclusion of tenant fordefault in payment of rent.

NRS 40.254 Unlawfuldetainer: Supplemental remedy of summary eviction and exclusion of tenant fromcertain types of property.

NRS 40.255 Removalof person holding over after 3-day notice to quit; circumstances authorizingremoval.

NRS 40.260 Tenantof agricultural lands may hold over if not notified.

NRS 40.270 Tenanthas similar remedies against subtenant.

NRS 40.280 Serviceof notices to quit; proof required before issuance of order to remove.

NRS 40.290 Partiesdefendant; persons bound by judgment.

NRS 40.300 Contentsof complaint; issuance and service of summons; temporary writ of restitution;notice, hearing and bond.

NRS 40.310 Issueof fact to be tried by jury if proper demand made.

NRS 40.320 Proofrequired of plaintiff and defendant on trial.

NRS 40.330 Amendmentof complaint to conform to proof; continuance.

NRS 40.340 Adjournments.

NRS 40.350 Trialnot to be adjourned when complainant admits evidence in affidavit would begiven.

NRS 40.360 Judgment;damages; execution and enforcement.

NRS 40.370 Verificationof complaint and answer.

NRS 40.380 Provisionsgoverning appeals.

NRS 40.385 Stayof execution upon appeal; duty of tenant who retains possession of premises topay rent during stay.

NRS 40.390 Appellatecourt not to dismiss or quash proceedings for want of form.

NRS 40.400 Rulesof practice.

NRS 40.420 Formof writ of restitution; execution.

NRS 40.425 Noticeof execution on writ of restitution.

ACTIONS FOR FORECLOSURE OF REAL MORTGAGES

NRS 40.430 Actionfor recovery of debt secured by mortgage or other lien; action defined.

NRS 40.433 Mortgageor other lien defined.

NRS 40.435 Judicialproceedings in violation of NRS 40.430;provisions of NRS 40.430 as anaffirmative defense.

NRS 40.440 Dispositionof surplus money.

NRS 40.450 Proceedingswhen debt secured falls due at different times.

FORECLOSURE SALES AND DEFICIENCY JUDGMENTS

NRS 40.451 Indebtednessdefined.

NRS 40.453 Waiverof rights in documents relating to sale of real property against public policyand unenforceable; exception.

NRS 40.455 Deficiencyjudgment: Award to judgment creditor or beneficiary of deed of trust.

NRS 40.457 Hearingbefore award of deficiency judgment; appraisal of property sold.

NRS 40.459 Limitationson amount of money judgment.

NRS 40.462 Distributionof proceeds of foreclosure sale.

RIGHTS OF GUARANTOR, SURETY OR OBLIGOR IN REAL PROPERTY

NRS 40.465 Indebtednessdefined.

NRS 40.475 Remedyagainst mortgagor or grantor; assignment of creditors rights to guarantor,surety or obligor.

NRS 40.485 Interestin proceeds of secured indebtedness upon partial satisfaction of indebtedness.

NRS 40.495 Waiverof rights; separate action to enforce obligation; available defenses.

ENVIRONMENTAL IMPAIRMENT OF REAL COLLATERAL OF SECURED LENDER

NRS 40.501 Definitions.

NRS 40.502 Environmentalprovision defined.

NRS 40.503 Environmentallyimpaired defined.

NRS 40.504 Hazardoussubstance defined.

NRS 40.505 Releasedefined.

NRS 40.506 Securedlender defined.

NRS 40.507 Rightof entry and inspection of real collateral.

NRS 40.508 Actionby secured lender concerning environmental provision.

NRS 40.509 Limitationon amount of damages recoverable in action concerning environmental provision;recovery of interest.

NRS 40.511 Exceptionsto applicability of NRS 40.507 and 40.508.

NRS 40.512 Environmentalimpairment of real collateral: Waiver of lien; notice of waiver; exception;recording of waiver.

PROCEEDINGS TO ESTABLISH TERMINATION OF LIFE ESTATES

NRS 40.515 Petition,notice, hearing and order.

METHODS OF TERMINATION OF INTERESTS OF DECEASED PERSONS INPROPERTY

NRS 40.525 Petition;notice; hearing and order; alternative method.

NRS 40.535 Affidavitor petition may be filed in probate proceeding.

ACTIONS RESULTING FROM CONSTRUCTIONAL DEFECT

General Provisions

NRS 40.600 Definitions.

NRS 40.603 Amenda complaint to add a cause of action for a constructional defect defined.

NRS 40.605 Appurtenancedefined.

NRS 40.610 Claimantdefined.

NRS 40.615 Constructionaldefect defined.

NRS 40.620 Contractordefined.

NRS 40.623 Designprofessional defined.

NRS 40.625 Homeownerswarranty defined.

NRS 40.630 Residencedefined.

NRS 40.632 Subcontractordefined.

NRS 40.634 Supplierdefined.

NRS 40.635 Applicability;effect on other defenses.

 

Conditions and Limitations on Actions

NRS 40.640 Liabilityof contractor.

NRS 40.645 Noticeof defect: Required before commencement of or addition to certain actions;content; reliance on expert opinion based on representative sample; noticeregarding similarly situated owners; persons authorized to provide notice;exceptions.

NRS 40.6452 Commonconstructional defects within single development: Response to notice of defectby contractor; disclosure to unnamed owners; effect of contractor failing toprovide disclosure to unnamed owners.

NRS 40.646 Noticeof defect to be forwarded by contractor to subcontractor, supplier or designprofessional; effect of failure to forward notice; inspection of allegeddefect; election to repair.

NRS 40.6462 Accessto residence or appurtenance with alleged defect after notice of defect isgiven; effect on owners who did not provide notice.

NRS 40.647 Claimantrequired to allow inspection of and reasonable opportunity to repair defect;effect of noncompliance.

NRS 40.6472 Responseto notice of defect: Time for sending; content; effect of election to repair ornot to repair.

NRS 40.648 Electionto repair defect: Who may repair; manner for performing repairs; deadline forrepair; extension of deadline; written statement of repairs performed.

NRS 40.649 Noticeof defect may be presented to insurer; duties of insurer.

NRS 40.650 Effectof rejecting reasonable offer of settlement; effect of failing to take certainactions concerning defect; effect of coverage available under homeownerswarranty.

NRS 40.655 Limitationon recovery.

NRS 40.660 Nonacceptanceof offer of settlement deemed rejection.

NRS 40.665 Settlementby repurchase; certain offers of settlement deemed reasonable.

NRS 40.667 Effectof written waiver or settlement agreement when contractor fails to correct orrepair defect properly; conditions to bringing action; effect of failure toprevail in action.

NRS 40.668 Actionagainst subdivider or master developer for defect in appurtenance in plannedunit development: Conditions and limitations; tolling of statutes of limitationor repose; applicability.

 

Repairs

NRS 40.670 Defectwhich creates imminent threat to health or safety: Duty to cure; effect offailure to cure; exceptions.

NRS 40.672 Defectin new residence: Duty to repair; deadline for repair; extensions; disciplinaryaction for failure to comply.

NRS 40.675 Inspectionof repairs.

 

Special Procedures

NRS 40.680 Mediationof certain claims required before action commenced or complaint amended;procedure; appointment of special master; effect of failure to mediate in goodfaith.

NRS 40.681 Premediationdiscovery.

NRS 40.684 Dutiesof insurer with respect to settlement conference.

 

Disclosures

NRS 40.687 Disclosureof information concerning warranties after action is commenced; disclosure ofinformation concerning insurance agreements; compelled production ofinformation.

NRS 40.688 Disclosureof defects by claimant to prospective purchaser of residence required; timingand contents of disclosure; duty of attorney to inform claimant of disclosurerequirement.

 

Additional Requirement for Actions Against Design Professionals

NRS 40.6882 Complainantdefined.

NRS 40.6884 Attorneyrequired to consult expert; required affidavit of attorney; required report ofexpert.

NRS 40.6885 Effectof compliance with or failure to comply with NRS40.6884.

 

Miscellaneous Provisions

NRS 40.6887 Submissionof questions or disputes concerning defects to State Contractors Board;regulations.

NRS 40.689 Preferencegiven to action; action may be assigned to senior judge; assessment ofadditional expenses.

NRS 40.690 Limitationon bringing claim against governmental entity during period for resolution;effect of settlement; contractor or claimant may require party to appear andparticipate.

NRS 40.692 Noticenot required to be given to intervener in action.

NRS 40.695 Tollingof statutes of limitation or repose; applicability.

MISCELLANEOUS PROVISIONS

NRS 40.750 Fraudagainst financial institution for purpose of obtaining loan secured by lien onreal property.

NRS 40.760 Summaryeviction of person using facility for storage as residence.

NRS 40.770 Limitationon liability of seller, sellers agent and buyers agent for failure todisclose certain facts concerning property.

_________

GENERAL PROVISIONS

NRS 40.005 Zoningrequirements to be considered by court. In anyproceeding involving disposition of land the court shall consider lot size andother applicable zoning requirements before ordering a physical division of theland.

(Added to NRS by 1977, 1512)

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY

NRS 40.010 Actionsmay be brought against adverse claimants. An actionmay be brought by any person against another who claims an estate or interestin real property, adverse to him, for the purpose of determining such adverseclaim.

[1911 CPA 572; RL 5514; NCL 9061]

NRS 40.020 Plaintiffnot entitled to costs on default judgment or disclaimer. If the defendant in such action disclaim in his answer anyinterest or estate in the property, or suffer judgment to be taken against himwithout answer, the plaintiff shall not recover costs.

[1911 CPA 573; RL 5515; NCL 9062]

NRS 40.030 Plaintiffmay recover damages for property withheld where his right terminated duringpendency of action. In an action for therecovery of real property, where the plaintiff shows a right to recover at thetime the action was commenced but it appears that his right has terminatedduring the pendency of the action, the verdict and judgment shall be accordingto the fact, and the plaintiff may recover damages for withholding theproperty.

[1911 CPA 574; RL 5516; NCL 9063]

NRS 40.040 Valueof permanent improvements to be allowed as setoff. Whendamages are claimed for withholding the property recovered, upon whichpermanent improvements have been made by a defendant or those under whom heclaims, holding under color of title adversely to the claims of the plaintiff,in good faith, the value of such improvements shall be allowed as a setoffagainst such damages.

[1911 CPA 575; RL 5517; NCL 9064]

NRS 40.050 Mortgagenot deemed conveyance. A mortgage of real propertyshall not be deemed a conveyance, whatever its terms, so as to enable the ownerof the mortgage to take possession of the real property without a foreclosureand sale.

[1911 CPA 576; RL 5518; NCL 9065]

NRS 40.060 Courtmay enjoin injury to property during foreclosure. Thecourt may by injunction, on good cause shown, restrain the party in possessionfrom doing any act to the injury of real property during the foreclosure of amortgage thereon; or after a sale on execution, before a conveyance.

[1911 CPA 577; RL 5519; NCL 9066]

NRS 40.070 Damagesmay be recovered for injury to possession after sale and before delivery. When real property shall have been sold on execution, thepurchaser thereof, or any person who may have succeeded to his interest, may,after his estate becomes absolute, recover damages for injury to the propertyby the tenant in possession, after sale and before possession is deliveredunder the conveyance.

[1911 CPA 578; RL 5520; NCL 9067]

NRS 40.080 Actionnot to be prejudiced by alienation pending suit. Anaction for the recovery of real property against a person in possession cannotbe prejudiced by an alienation made by such person, either before or after thecommencement of the action.

[1911 CPA 579; RL 5521; NCL 9068]

NRS 40.090 Actionby person in adverse possession: Verified complaint; defendants; notice ofpending litigation.

1. An action may be brought to determine the adverseclaims to and clouds upon title to real property by a person who, by himself,or by himself and his predecessors in interest, has been in the actual,exclusive and adverse possession of such property continuously for more than 15years prior to the filing of the complaint, claiming to own the same in fee, orby any other freehold estate, against the whole world, and who has by himselfor his predecessors in interest, paid all taxes of every kind levied orassessed and due against the property during the period of 5 years nextpreceding the filing of the complaint, except that where clouds upon title toreal property have been created by such person, and the action is brought toremove such clouds, or any of them, such period of actual, exclusive andadverse possession of such property shall be for more than 10 years. The actionshall be commenced by the filing of a verified complaint averring the mattersabove enumerated.

2. The complaint must include as defendants in suchaction, in addition to such persons as appear of record to have some claim, allother persons who are known, or by the exercise of reasonable diligence couldbe known, to plaintiff to have some claim to an estate, interest, right, title,lien or cloud in or on the land described in the complaint adverse toplaintiffs ownership; and the complaint may also include as defendants any andall other persons, unknown, claiming any estate, right, title, interest or lienin such lands, or cloud upon the title of plaintiff thereto; and the plaintiffmay describe such unknown defendants in the complaint as follows: Also allother persons unknown claiming any right, title, estate, lien or interest inthe real property described in the complaint adverse to plaintiffs ownership,or any cloud upon plaintiffs title thereto.

3. Within 10 days after the filing of the complaint,plaintiff shall file or cause to be filed in the office of the county recorderof the county where the property is situated, a notice of the pendency of theaction containing the matters required by NRS14.010.

[1911 CPA 580; RL 5522; NCL 9069](NRS A 1965,613)

NRS 40.100 Actionby person in adverse possession: Issuance, service and posting of summons;rights of unknown persons.

1. Within 1 year after the filing of the complaint, asrequired by NRS 40.090, a summons mustbe issued in the manner and form prescribed in the Nevada Rules of CivilProcedure. In addition to other requirements, the summons shall contain a descriptionof the property described in the complaint. In the summons the unknowndefendants shall be designated as in the complaint. Service of summons, whetherpersonal or otherwise, shall be effected in the manner prescribed in the NevadaRules of Civil Procedure; and the times for completion of service andappearance by the defendant shall be as prescribed therein.

2. Within 30 days after the issuance of the summons,the plaintiff shall post or cause to be posted a copy thereof in a conspicuousplace, on each separate parcel of the property described in the complaint, andeach parcel of the land upon which a copy of the summons is posted shall bedeemed to be in the possession of the court for all the purposes of and pendingthe determination of the action. All such unknown persons so served shall havethe same rights as are provided by law in cases of all other defendants named,upon whom service is made by publication or personally, and the action shallproceed against such unknown persons in the same manner as against thedefendants who are named, upon whom service is made by publication or personally,and with like effect; and any such unknown person who has or claims to have anyright, title, estate, lien or interest in the property, or cloud on the titlethereto, adverse to plaintiff, at the time of the commencement of the action,who has been duly served as aforesaid, and anyone claiming title under himshall be concluded by the judgment in such action as effectually as if theaction had been brought against the person by his or her name and personalservice of process obtained, notwithstanding any such unknown person may beunder legal disability.

[1911 CPA 581; A 1937, 23; 1955, 466]

NRS 40.110 Courtto hear case; must not enter judgment by default; effect of final judgment.

1. When the summons has been served as provided in NRS 40.100 and the time for answering hasexpired, the court shall proceed to hear the case as in other cases and shallhave jurisdiction to examine into and determine the legality of plaintiffs titleand of the title and claim of all the defendants and of all unknown persons,and to that end must not enter any judgment by default, but must in all casesrequire evidence of plaintiffs title and possession and receive such legalevidence as may be offered respecting the claims and title of any of thedefendants and must thereafter direct judgment to be entered in accordance withthe evidence and the law. The court, before proceeding to hear the case, mustrequire proof to be made that the summons has been served and posted ashereinbefore directed and that the required notice of pendency of action hasbeen filed.

2. The judgment after it has become final shall beconclusive against all the persons named in the summons and complaint who havebeen served personally, or by publication, and against all unknown persons asstated in the complaint and summons who have been served by publication, butshall not be conclusive against the State of Nevada or the United States. Thejudgment shall have the effect of a judgment in rem except as against the Stateof Nevada and the United States; and the judgment shall not bind or beconclusive against any person claiming any recorded estate, title, right,possession or lien in or to the property under the plaintiff or hispredecessors in interest, which claim, lien, estate, title, right or possessionhas arisen or been created by the plaintiff or his predecessor in interestwithin 10 years prior to the filing of the complaint.

[1911 CPA 582; RL 5524; NCL 9071]

NRS 40.120 Remedyis cumulative. The remedy provided in NRS 40.090, 40.100 and 40.110 shall be construed as cumulative andnot exclusive of any other remedy, form or right of action or proceeding nowallowed by law.

[1911 CPA 583; RL 5525; NCL 9072]

NRS 40.130 Adverseaction on mining claim. In all actions broughtto determine the right of possession of a mining claim, or metalliferous veinor lode, where an application has been made to the proper officers of theGovernment of the United States by either of the parties to such action for apatent for the mining claim, vein or lode, it shall only be necessary to conferjurisdiction on the court to try the action, and render a proper judgmenttherein, that it appear that an application for a patent for such mining claim,vein or lode has been made, and that the parties to the action are claimingsuch mining claim, vein or lode, or some part thereof, or the right ofpossession thereof.

[1911 CPA 584; RL 5526; NCL 9073]

ACTIONS FOR NUISANCE, WASTE AND WILLFUL TRESPASS ON REALPROPERTY

NRS 40.140 Nuisancedefined; action for abatement and damages; exceptions.

1. Except as otherwise provided in this section,anything which is injurious to health, or indecent and offensive to the senses,or an obstruction to the free use of property, so as to interfere with thecomfortable enjoyment of life or property, including, without limitation, abuilding or place used for the purpose of unlawfully selling, serving, storing,keeping, manufacturing, using or giving away a controlled substance, immediateprecursor as defined in NRS 453.086 orcontrolled substance analog as defined in NRS453.043, is a nuisance, and the subject of an action. The action may bebrought by any person whose property is injuriously affected, or whose personalenjoyment is lessened by the nuisance, and by the judgment the nuisance may beenjoined or abated, as well as damages recovered.

2. It is presumed:

(a) That an agricultural activity conducted onfarmland, consistent with good agricultural practice and established beforesurrounding nonagricultural activities is reasonable. Such activity does notconstitute a nuisance unless the activity has a substantial adverse effect onthe public health or safety.

(b) That an agricultural activity which does notviolate a federal, state or local law, ordinance or regulation constitutes goodagricultural practice.

3. A shooting range does not constitute a nuisancewith respect to any noise attributable to the shooting range if the shootingrange is in compliance with the provisions of all applicable statutes,ordinances and regulations concerning noise:

(a) As those provisions existed on October 1, 1997, fora shooting range in operation on or before October 1, 1997; or

(b) As those provisions exist on the date that theshooting range begins operation, for a shooting range that begins operationafter October 1, 1997.

A shootingrange is not subject to any state or local law related to the control of noisethat is adopted or amended after the date set forth in paragraph (a) or (b), asapplicable, and does not constitute a nuisance for failure to comply with anysuch law.

4. As used in this section, shooting range means anarea designed and used for archery or sport shooting, including, but notlimited to, sport shooting that involves the use of rifles, shotguns, pistols,silhouettes, skeet, trap, black powder or other similar items.

[1911 CPA 562; RL 5504; NCL 9051](NRS A 1985,873; 1997, 951, 1471, 1472)

NRS 40.150 Actionfor waste; judgment may be for treble damages. Ifa guardian, tenant for life or years, joint tenant or tenant in common of realproperty commit waste thereon, any person aggrieved by the waste may bring anaction against him therefor, in which action there may be judgment for trebledamages.

[1911 CPA 563; RL 5505; NCL 9052]

NRS 40.160 Actionfor trespass for cutting or carrying away trees or wood; treble damages.

1. Any person who cuts down or carries off any wood orunderwood, tree or timber, or girdles or otherwise injures any tree or timberon the land of another person, or on the street or highway in front of anypersons house, city or town lot, or cultivated grounds, or on the commons orpublic grounds of any city or town, or on the street or highway in frontthereof, without lawful authority, is liable to the owner of such land, or tosuch city or town, for treble the amount of damages which may be assessedtherefor, in a civil action in any court having jurisdiction.

2. Nothing in subsection 1 of this section authorizesthe recovery of more than the just value of the timber taken from uncultivatedwoodland for the repair of a public highway or bridge upon the land, oradjoining it.

[1911 CPA 564; RL 5506; NCL 9053] + [1911 CPA 565; RL 5507; NCL 9054](NRS A 1983, 111)

NRS 40.170 Damagesin actions for forcible or unlawful entry may be trebled. If a person recover damages for a forcible or unlawfulentry in or upon, or detention of, any building or any uncultivated orcultivated real property, judgment may be entered for three times the amount atwhich the actual damages are assessed.

[1911 CPA 566; RL 5508; NCL 9055](NRS A 1959,22)

NRS 40.180 Mannerof working mine or mining claim; assessment of damages.

1. Any person being the owner of, or in possessionunder any lease or contract for the working of any mine or mines within thisstate, shall have the right to institute and maintain an action for therecovery of any damages that may accrue by reason of the manner in which anymine or mines have been or are being worked and managed by any person who maybe the owner, or in possession of and working such mine or mines under a leaseor contract, and to prevent the continuance of working and managing such mineor mines in such manner as to hinder, injure, or in anywise endanger the safetyof any mine or mines adjacent or adjoining thereto.

2. Any such owner of, or person in the possession of,any mine or mining claim, who shall enter upon or into, in any manner, any mineor mining claim, the property of another, and mine, extract, excavate or carryaway any valuable mineral therefrom shall be liable to the owner of any suchmine or mines trespassed upon in the amount of the value of all such mineralmined, extracted, excavated or carried away, and for all other damages, and inthe absence of a showing to the contrary, the value of all such mineral mined,extracted, excavated or carried away shall be presumed to be twice the amountof the gross value of the same ascertained by an average assay of the excavatedmaterial or the ledge from which it was taken. If such trespass was made in badfaith, such damages may be trebled.

[1911 CPA 567; RL 5509; NCL 9056]

NRS 40.190 Continuationof judgment lien. Any judgment obtained fordamages under the provisions of NRS 40.180shall become a lien upon all the property of the judgment debtor not exemptfrom execution in the State of Nevada, owned by him, or which may afterwards beacquired, as is now provided for by law, which lien shall continue 2 years,unless the judgment be sooner satisfied.

[1911 CPA 568; RL 5510; NCL 9057]

NRS 40.200 Applicationfor order of survey; notice and order; report of survey; costs of and damagescaused by survey.

1. Any person named in NRS 40.180 and 40.190 shall have the right to apply forand obtain from any district court, or the judge thereof, an order of survey inthe following manner: An application shall be made by filing the affidavit ofthe person making the application, which affidavit shall state, as near as canbe described, the location of the mine or mines of the parties complained of,and as far as known, the names of such parties; also, the location of the mineor mines of the party making such application, and that he has reason tobelieve, and does believe, that the parties complained of, their agent, oremployees, are or have been trespassing upon the mine or mines of the partycomplaining, or are working their mine in such manner as to damage or endangerthe property of the affiant.

2. Upon the filing of the affidavit as prescribed insubsection 1, the court or judge shall cause a notice to be given to the partycomplained of, or the agent thereof, which notice shall state the time, place,and before whom the application will be heard, and shall cite the party toappear in not less than 5 nor more than 10 days from the date thereof, to showcause why an order of survey should not be granted; and upon good cause shown,the court or judge shall grant such order, directed to some competent surveyoror surveyors, or to some competent mechanics, or miners, or both, as the casemay be, who shall proceed to make the necessary examination as directed by thecourt and report the result and conclusions to the court, which report shall befiled with the clerk of the court.

3. The costs of the order and survey shall be paid bythe persons making the application, unless such parties shall subsequentlymaintain an action and recover damages, as provided for in NRS 40.180, by reason of a trespass ordamage done or threatened prior to such survey or examination having been made,and in that case, such costs shall be taxed against the defendant as othercosts in the suit.

4. The parties obtaining such survey shall be liablefor any unnecessary injury done to the property in the making of such survey.

[1911 CPA 569; RL 5511; NCL 9058]

NRS 40.210 Orderallowing party to survey and measure land in dispute; contents and service oforder; liability for unnecessary injury.

1. The court in which an action is pending for therecovery of real property or for damages for an injury thereto, or a judgethereof, may, on motion, upon notice by either party for good cause shown,grant an order allowing to such party the right to enter upon the property andmake survey and measurement thereof, for the purpose of the action, even thoughentry for such purpose has to be made through other lands belonging to partiesto the action.

2. The order shall describe the property; a copythereof shall be served on the owner or occupant, and thereupon such party mayenter upon the property with necessary surveyors and assistants, and may makesuch survey and measurements; but if any unnecessary injury be done to theproperty he shall be liable therefor.

[1911 CPA 570; RL 5512; NCL 9059] + [1911 CPA 571; RL 5513; NCL 9060]

SUMMARY PROCEEDINGS FOR OBTAINING POSSESSION OF REALPROPERTY, RECREATIONAL VEHICLE OR MOBILE HOME

NRS 40.215 Definitions. As used in NRS 40.215to 40.425, inclusive, unless the contextrequires otherwise:

1. Mobile home means every vehicle, includingequipment, which is constructed, reconstructed or added to in such a way as tohave an enclosed room or addition occupied by one or more persons as a dwellingor sleeping place and which has no foundation other than wheels, jacks,skirting or other temporary support.

2. Mobile home lot means a portion of land within amobile home park which is rented or held out for rent to accommodate a mobilehome.

3. Mobile home park or park means an area or tractof land where two or more mobile homes or mobile home lots are rented or heldout for rent. Mobile home park or park does not include those areas ortracts of land, whether within or outside of a park, where the lots are heldout for rent on a nightly basis.

4. Premises includes a mobile home.

5. Recreational vehicle means a vehicular structureprimarily designed as temporary living quarters for travel, recreational orcamping use, which may be self-propelled or mounted upon or drawn by a motorvehicle.

6. Recreational vehicle lot means a portion of landwithin a recreational vehicle park, or a portion of land so designated within amobile home park, which is rented or held out for rent to accommodate arecreational vehicle overnight or for less than 3 months.

7. Recreational vehicle park means an area or tractof land where lots are rented or held out for rent to accommodate arecreational vehicle overnight or for less than 3 months.

(Added to NRS by 1969, 264; A 1979, 1877; 1981, 2037;1989, 1081; 1997, 3510)

NRS 40.220 Entryto be made only when legal and in peaceable manner. Noentry shall be made into any lands, tenements or other possessions but in caseswhere entry is given by law; and in such cases, only in a peaceable manner, notwith strong hand nor with multitude of people.

[1911 CPA 643; RL 5585; NCL 9132]

NRS 40.230 Forcibleentry defined. Every person is guilty of aforcible entry who either:

1. By breaking open doors, windows or other parts of ahouse, or by fraud, intimidation or stealth, or by any kind of violence or circumstanceof terror, enters upon or into any real property; or

2. Who, after entering peaceably upon real property,turns out by force, threats or menacing conduct, the party in naturalpossession.

[1911 CPA 644; RL 5586; NCL 9133]

NRS 40.240 Forcibledetainer defined. Every person is guilty of aforcible detainer who either:

1. By force, or by menaces or threats of violence,unlawfully holds and keeps the possession of any real property, whether thesame was acquired peaceably or otherwise; or

2. Who, in the nighttime, or during the absence of theoccupant of any real property, unlawfully enters thereon, and who, after demandmade for the surrender thereof, refuses for a period of 3 days to surrender thesame to such former occupant. The occupant of real property within the meaningof this subsection is one who, within 5 days preceding such unlawful entry, wasin the peaceable and undisturbed possession of such lands.

[1911 CPA 645; RL 5587; NCL 9134]

NRS 40.250 Unlawfuldetainer: Possession after expiration of term. Atenant of real property or a mobile home for a term less than life is guilty ofan unlawful detainer when he continues in possession, in person or bysubtenant, of the property or mobile home or any part thereof, after theexpiration of the term for which it is let to him. In all cases where realproperty is leased for a specified term or period, or by express or impliedcontract, whether written or parol, the tenancy terminates without notice atthe expiration of the specified term or period.

[1911 CPA 646; A 1917, 31; 1919 RL 5588; NCL 9135](NRS A 1969, 262, 574; 1973, 1084; 1977, 1344; 1979, 1877; 1985, 227)

NRS 40.251 Unlawfuldetainer: Possession of property leased for indefinite time after notice toquit; older or disabled person entitled to extension of period of possessionupon request.

1. A tenant of real property, a recreational vehicleor a mobile home for a term less than life is guilty of an unlawful detainerwhen having leased:

(a) Real property, except as otherwise provided in thissection, or a mobile home for an indefinite time, with monthly or otherperiodic rent reserved, he continues in possession thereof, in person or bysubtenant, without the landlords consent after the expiration of a notice of:

(1) For tenancies from week to week, at least 7days;

(2) Except as otherwise provided in subsection2, for all other periodic tenancies, at least 30 days; or

(3) For tenancies at will, at least 5 days.

(b) A dwelling unit subject to the provisions of chapter 118A of NRS, he continues inpossession, in person or by subtenant, without the landlords consent afterexpiration of:

(1) The term of the rental agreement or itstermination and, except as otherwise provided in subparagraph (2), theexpiration of a notice of:

(I) At least 7 days for tenancies fromweek to week; and

(II) Except as otherwise provided insubsection 2, at least 30 days for all other periodic tenancies; or

(2) A notice of at least 5 days where the tenanthas failed to perform his basic or contractual obligations under chapter 118A of NRS.

(c) A mobile home lot subject to the provisions of chapter 118B of NRS, or a lot for arecreational vehicle in an area of a mobile home park other than an area designatedas a recreational vehicle lot pursuant to the provisions of subsection 6 of NRS 40.215, he continues in possession, inperson or by subtenant, without the landlords consent:

(1) After notice has been given pursuant to NRS 118B.115, 118B.170 or 118B.190 and the period of the notice hasexpired; or

(2) If the person is not a natural person andhas received three notices for nonpayment of rent within a 12-month period,immediately upon failure to pay timely rent.

(d) A recreational vehicle lot, he continues inpossession, in person or by subtenant, without the landlords consent, afterthe expiration of a notice of at least 5 days.

2. Except asotherwise provided in this section, if a tenant with a periodic tenancypursuant to paragraph (a) or (b) of subsection 1, other than a tenancy fromweek to week, is 60 years of age or older or has a physical or mentaldisability, the tenant may request to be allowed to continue in possession foran additional 30 days beyond the time specified in subsection 1 by submitting awritten request for an extended period and providing proof of his age ordisability. A landlord may not be required to allow a tenant to continue inpossession if a shorter notice is provided pursuant to subparagraph (2) ofparagraph (b) of subsection 1.

3. Any noticeprovided pursuant to paragraph (a) or (b) of subsection 1 must include astatement advising the tenant of the provisions of subsection 2.

4. If a landlord rejects a request to allow a tenantto continue in possession for an additional 30 days pursuant to subsection 2,the tenant may petition the court for an order to continue in possession forthe additional 30 days. If the tenant submits proof to the court that he isentitled to request such an extension, the court may grant the petition andenter an order allowing the tenant to continue in possession for the additional30 days. If the court denies the petition, the tenant must be allowed to continuein possession for 5 calendar days following the date of entry of the order denyingthe petition.

(Added to NRS by 1985, 226; A 1989, 1081; 1999, 3195; 2001, 1946; 2003, 2480)

NRS 40.2512 Unlawfuldetainer: Possession after default in payment of rent.A tenant of real property or a mobile home for a term less than life isguilty of an unlawful detainer when he continues in possession, in person or bysubtenant, after default in the payment of any rent and after a notice inwriting, requiring in the alternative the payment of the rent or the surrenderof the detained premises, remains uncomplied with for a period of 5 days, or inthe case of a mobile home lot, 10 days after service thereof. The notice may beserved at any time after the rent becomes due.

(Added to NRS by 1985, 226)

NRS 40.2514 Unlawfuldetainer: Assignment or subletting contrary to lease; waste; unlawful business;nuisance; violations of controlled substances laws. Atenant of real property or a mobile home for a term less than life is guilty ofan unlawful detainer when he:

1. Assigns or sublets the leased premises contrary tothe covenants of the lease;

2. Commits or permits waste thereon;

3. Sets up or carries on therein or thereon anyunlawful business;

4. Suffers, permits or maintains on or about the premisesany nuisance; or

5. Violates any of the provisions of NRS 453.011 to 453.552, inclusive, except NRS 453.336, therein or thereon,

and remainsin possession after service upon him of 3 days notice to quit.

(Added to NRS by 1985, 226; A 1989, 1232; 2001, 1065; 2003, 561)

NRS 40.2516 Unlawfuldetainer: Possession after failure to perform conditions of lease; saving leasefrom forfeiture. A tenant of real property ora mobile home for a term less than life is guilty of an unlawful detainer whenhe continues in possession, in person or by subtenant, after a neglect orfailure to perform any condition or covenant of the lease or agreement underwhich the property or mobile home is held, other than those mentioned in NRS 40.250 to 40.252, inclusive, and NRS 40.254, and after notice in writing,requiring in the alternative the performance of the condition or covenant orthe surrender of the property, served upon him, and, if there is a subtenant inactual occupation of the premises, also upon the subtenant, remains uncompliedwith for 5 days after the service thereof. Within 3 days after the service, thetenant, or any subtenant in actual occupation of the premises, or any mortgageeof the term, or other person, interested in its continuance, may perform thecondition or covenant and thereby save the lease from forfeiture; but if thecovenants and conditions of the lease, violated by the lessee, cannotafterwards be performed, then no notice need be given.

(Added to NRS by 1985, 226)

NRS 40.252 Unlawfuldetainer: Contractual provisions void if contrary to specified periods ofnotice; notice to quit or surrender by colessor is valid unless showing othercolessors did not authorize notice. For thepurposes of NRS 40.250 to 40.252, inclusive, and NRS 40.254:

1. It is unlawful for a landlord to attempt bycontract or other agreement to shorten the specified periods of notice and anysuch contract or agreement is void.

2. Notice to quit or surrender the premises which wasgiven by one colessor of real property or a mobile home is valid unless it isaffirmatively shown that one or more of the other colessors did not authorizethe giving of the notice.

(Added to NRS by 1985, 227)

NRS 40.253 Unlawfuldetainer: Supplemental remedy of summary eviction and exclusion of tenant fordefault in payment of rent.

1. Except as otherwise provided in subsection 10, inaddition to the remedy provided in NRS40.2512 and 40.290 to 40.420, inclusive, when the tenant of anydwelling, apartment, mobile home, recreational vehicle or commercial premiseswith periodic rent reserved by the month or any shorter period is in default inpayment of the rent, the landlord or his agent, unless otherwise agreed inwriting, may serve or have served a notice in writing, requiring in thealternative the payment of the rent or the surrender of the premises:

(a) At or before noon of the fifth full day followingthe day of service; or

(b) If the landlord chooses not to proceed in the mannerset forth in paragraph (a) and the rent is reserved by a period of 1 week orless and the tenancy has not continued for more than 45 days, at or before noonof the fourth full day following the day of service.

As used inthis subsection, day of service means the day the landlord or his agentpersonally delivers the notice to the tenant. If personal service was not so delivered,the day of service means the day the notice is delivered, after posting andmailing pursuant to subsection 2, to the sheriff or constable for service ifthe request for service is made before noon. If the request for service by thesheriff or constable is made after noon, the day of service shall be deemedto be the day next following the day that the request is made for service bythe sheriff or constable.

2. A landlord or his agent who serves a notice to atenant pursuant to paragraph (b) of subsection 1 shall attempt to deliver thenotice in person in the manner set forth in paragraph (a) of subsection 1 of NRS 40.280. If the notice cannot be deliveredin person, the landlord or his agent:

(a) Shall post a copy of the notice in a conspicuousplace on the premises and mail the notice by overnight mail; and

(b) After the notice has been posted and mailed, maydeliver the notice to the sheriff or constable for service in the manner setforth in subsection 1 of NRS 40.280. Thesheriff or constable shall not accept the notice for service unless it isaccompanied by written evidence, signed by the tenant when he took possessionof the premises, that the landlord or his agent informed the tenant of theprovisions of this section which set forth the lawful procedures for evictionfrom a short-term tenancy. Upon acceptance, the sheriff or constable shallserve the notice within 48 hours after the request for service was made by thelandlord or his agent.

3. A notice served pursuant to subsection 1 or 2 must:

(a) Identify the court that has jurisdiction over thematter; and

(b) Advise the tenant of his right to contest thematter by filing, within the time specified in subsection 1 for the payment ofthe rent or surrender of the premises, an affidavit with the court that hasjurisdiction over the matter stating that he has tendered payment or is not indefault in the payment of the rent.

4. If the tenant files such an affidavit at or beforethe time stated in the notice, the landlord or his agent, after receipt of afile-stamped copy of the affidavit which was filed, shall not provide for thenonadmittance of the tenant to the premises by locking or otherwise.

5. Upon noncompliance with the notice:

(a) The landlord or his agent may apply by affidavit ofcomplaint for eviction to the Justice Court of the township in which thedwelling, apartment, mobile home or commercial premises are located or to thedistrict court of the county in which the dwelling, apartment, mobile home orcommercial premises are located, whichever has jurisdiction over the matter.The court may thereupon issue an order directing the sheriff or constable ofthe county to remove the tenant within 24 hours after receipt of the order. Theaffidavit must state or contain:

(1) The date the tenancy commenced.

(2) The amount of periodic rent reserved.

(3) The amounts of any cleaning, security orrent deposits paid in advance, in excess of the first months rent, by thetenant.

(4) The date the rental payments became delinquent.

(5) The length of time the tenant has remainedin possession without paying rent.

(6) The amount of rent claimed due anddelinquent.

(7) A statement that the written notice wasserved on the tenant in accordance with NRS40.280.

(8) A copy of the written notice served on thetenant.

(9) A copy of the signed written rentalagreement, if any.

(b) Except when the tenant has timely filed theaffidavit described in subsection 3 and a file-stamped copy of it has beenreceived by the landlord or his agent, and except when the landlord isprohibited pursuant to NRS 118A.480,the landlord or his agent may, in a peaceable manner, provide for thenonadmittance of the tenant to the premises by locking or otherwise.

6. Upon the filing by the tenant of the affidavitpermitted in subsection 3, regardless of the information contained in theaffidavit, and the filing by the landlord of the affidavit permitted bysubsection 5, the Justice Court or the district court shall hold a hearing,after service of notice of the hearing upon the parties, to determine thetruthfulness and sufficiency of any affidavit or notice provided for in thissection. If the court determines that there is no legal defense as to thealleged unlawful detainer and the tenant is guilty of an unlawful detainer, thecourt may issue a summary order for removal of the tenant or an order providingfor the nonadmittance of the tenant. If the court determines that there is alegal defense as to the alleged unlawful detainer, the court shall refuse togrant either party any relief, and, except as otherwise provided in thissubsection, shall require that any further proceedings be conducted pursuant toNRS 40.290 to 40.420, inclusive. The issuance of asummary order for removal of the tenant does not preclude an action by thetenant for any damages or other relief to which he may be entitled. If thealleged unlawful detainer was based upon subsection 5 of NRS 40.2514, the refusal by the court togrant relief does not preclude the landlord thereafter from pursuing an actionfor unlawful detainer in accordance with NRS40.251.

7. The tenant may, upon payment of the appropriatefees relating to the filing and service of a motion, file a motion with thecourt, on a form provided by the clerk of the court, to dispute the amount ofthe costs, if any, claimed by the landlord pursuant to NRS 118A.460 for the inventory, movingand storage of personal property left on the premises. The motion must be filedwithin 20 days after the summary order for removal of the tenant or theabandonment of the premises by the tenant, or within 20 days after:

(a) The tenant has vacated or been removed from thepremises; and

(b) A copy of those charges has been requested by orprovided to the tenant,

whichever islater.

8. Upon the filing of a motion pursuant to subsection7, the court shall schedule a hearing on the motion. The hearing must be heldwithin 10 days after the filing of the motion. The court shall affix the dateof the hearing to the motion and order a copy served upon the landlord by thesheriff, constable or other process server. At the hearing, the court may:

(a) Determine the costs, if any, claimed by thelandlord pursuant to NRS 118A.460, andany accumulating daily costs; and

(b) Order the release of the tenants property upon thepayment of the charges determined to be due or if no charges are determined tobe due.

9. A landlord shall not refuse to accept rent from atenant that is submitted after the landlord or his agent has served or hadserved a notice pursuant to subsection 1 if the refusal is based on the factthat the tenant has not paid collection fees, attorneys fees or other costsother than rent, a reasonable charge for late payments of rent or dishonoredchecks, or a security. As used in this subsection, security has the meaningascribed to it in NRS 118A.240.

10. This section does not apply to the tenant of amobile home lot in a mobile home park or to the tenant of a recreationalvehicle lot in an area of a mobile home park in this State other than an areadesignated as a recreational vehicle lot pursuant to the provisions ofsubsection 6 of NRS 40.215.

(Added to NRS by 1967, 195; A 1969, 263, 575; 1973,1085; 1975, 1202; 1977, 418, 1346; 1979, 1398, 1879; 1985, 229; 1987, 1239;1989, 1082, 1232; 1991, 113; 1995, 1851; 1997, 3511; 1999, 981)

NRS 40.254 Unlawfuldetainer: Supplemental remedy of summary eviction and exclusion of tenant fromcertain types of property. Except as otherwiseprovided by specific statute, in addition to the remedy provided in NRS 40.251 and in NRS 40.290 to 40.420, inclusive, when the tenant of adwelling unit which is subject to the provisions of chapter 118A of NRS, part of a low-rent housingprogram operated by a public housing authority, a mobile home or a recreationalvehicle is guilty of an unlawful detainer, the landlord is entitled to thesummary procedures provided in NRS 40.253except that:

1. Written notice to surrender the premises must:

(a) Be given to the tenant in accordance with the provisionsof NRS 40.280;

(b) Advise the tenant of the court that hasjurisdiction over the matter; and

(c) Advise the tenant of his right to contest thenotice by filing within 5 days an affidavit with the court that hasjurisdiction over the matter that he is not guilty of an unlawful detainer.

2. The affidavit of the landlord or his agentsubmitted to the Justice Court or the district court must contain:

(a) The date when the tenancy commenced, the term ofthe tenancy, and, if any, a copy of the rental agreement.

(b) The date when the tenancy or rental agreementallegedly terminated.

(c) The date when the tenant became subject to theprovisions of NRS 40.251 to 40.2516, inclusive, together with anysupporting facts.

(d) The date when the written notice was given, a copyof the notice and a statement that notice was served in accordance with NRS 40.280.

(e) A statement that the claim for relief wasauthorized by law.

3. If the tenant is found guilty of unlawful detaineras a result of his violation of any of the provisions of NRS 453.011 to 453.552, inclusive, except NRS 453.336, the landlord is entitled to beawarded any reasonable attorneys fees incurred by the landlord or his agent asa result of a hearing, if any, held pursuant to subsection 6 of NRS 40.253 wherein the tenant contested theeviction.

(Added to NRS by 1985, 227; A 1989, 1084, 1234; 1991,115; 1995, 1853; 2001,1065; 2003, 561)

NRS 40.255 Removalof person holding over after 3-day notice to quit; circumstances authorizingremoval.

1. Except as provided in subsection 2, in any of thefollowing cases, a person who holds over and continues in possession of realproperty or a mobile home after a 3-day written notice to quit has been servedupon him, and also upon any subtenant in actual occupation of the premises,pursuant to NRS 40.280, may be removedas prescribed in NRS 40.290 to 40.420, inclusive:

(a) Where the property or mobile home has been soldunder an execution against him or a person under whom he claims, and the titleunder the sale has been perfected;

(b) Where the property or mobile home has been soldupon the foreclosure of a mortgage, or under an express power of sale containedtherein, executed by him or a person under whom he claims, and the title underthe sale has been perfected;

(c) Where the property or mobile home has been soldunder a power of sale granted by NRS 107.080to the trustee of a deed of trust executed by such person or a person underwhom he claims, and the title under such sale has been perfected; or

(d) Where the property or mobile home has been sold byhim or a person under whom he claims, and the title under the sale has beenperfected.

2. This section does not apply to the tenant of amobile home lot in a mobile home park.

(Added to NRS by 1961, 412; A 1969, 263; 1979, 1880)

NRS 40.260 Tenantof agricultural lands may hold over if not notified. Inall cases of tenancy upon agricultural land where the tenant has held over andretained possession for more than 60 days after the expiration of his term,without any demand of possession or notice to quit by the landlord, or thesuccessor in estate of his landlord, if any there be, he shall be deemed to beholding by permission of the landlord, or the successor in the estate of hislandlord, if any there be, and shall be entitled to hold under the terms of thelease for another full year, and shall not be guilty of an unlawful detainerduring the year, and such holding over for the period aforesaid shall be takenand construed as a consent on the part of the tenant to hold for another year.

[1911 CPA 647; RL 5589; NCL 9136]

NRS 40.270 Tenanthas similar remedies against subtenant. Atenant may take proceedings similar to those prescribed in this chapter, toobtain possession of the premises let to any under tenant, in case of hisunlawful detention of the premises underlet to him.

[1911 CPA 648; RL 5590; NCL 9137]

NRS 40.280 Serviceof notices to quit; proof required before issuance of order to remove.

1. Except as otherwise provided in NRS 40.253, the notices required by NRS 40.251 to 40.260, inclusive, may be served:

(a) By delivering a copy to the tenant personally, inthe presence of a witness;

(b) If he is absent from his place of residence or fromhis usual place of business, by leaving a copy with a person of suitable ageand discretion at either place and mailing a copy to the tenant at his place ofresidence or place of business; or

(c) If the place of residence or business cannot beascertained, or a person of suitable age or discretion cannot be found there,by posting a copy in a conspicuous place on the leased property, delivering acopy to a person there residing, if the person can be found, and mailing a copyto the tenant at the place where the leased property is situated.

2. Service upon a subtenant may be made in the samemanner as provided in subsection 1.

3. Before an order to remove a tenant is issuedpursuant to subsection 6 of NRS 40.253,a landlord shall file with the court a proof of service of any notice requiredby that section. Except as otherwise provided in subsection 4, this proof mustconsist of:

(a) A statement, signed by the tenant and a witness,acknowledging that the tenant received the notice on a specified date;

(b) A certificate of mailing issued by the UnitedStates Postal Service; or

(c) The endorsement of a sheriff, constable or otherprocess server stating the time and manner of service.

4. If service of the notice was not delivered inperson to a tenant whose rent is reserved by a period of 1 week or less and thetenancy has not continued for more than 45 days, proof of service must include:

(a) A certificate of mailing issued by the UnitedStates Postal Service or by a private postal service to the landlord or hisagent; or

(b) The endorsement of a sheriff or constable statingthe:

(1) Time and date the request for service wasmade by the landlord or his agent;

(2) Time, date and manner of the service; and

(3) Fees paid for the service.

[1911 CPA 649; RL 5591; NCL 9138](NRS A 1961,413; 1967, 196; 1985, 231, 1418; 1987, 701; 1995, 1854)

NRS 40.290 Partiesdefendant; persons bound by judgment. Noperson other than the tenant of the premises and the subtenant, if there beone, in actual occupation of the premises when the action is commenced, need bemade parties defendant in the proceeding, nor shall any proceeding abate northe plaintiff be nonsuited for the nonjoinder of any person who might have beenmade a party defendant; but when it appears that any of the parties served withprocess or appearing in the proceeding is guilty of the offense charged,judgment must be rendered against him. In case a person has become subtenant ofthe premises in controversy after the service of any notice in this chapterprovided for, the fact that such notice was not served on such subtenant shallconstitute no defense to the action. All persons who enter under the tenant,after the commencement of the action hereunder, shall be bound by the judgmentthe same as if they had been made parties to the action.

[1911 CPA 650; RL 5592; NCL 9139]

NRS 40.300 Contentsof complaint; issuance and service of summons; temporary writ of restitution;notice, hearing and bond.

1. The plaintiff in his complaint, which shall be inwriting, must set forth the facts on which he seeks to recover, and describethe premises with reasonable certainty and may set forth therein anycircumstances of fraud, force or violence which may have accompanied thealleged forcible entry, or forcible or unlawful detainer, and claim damagestherefor, or compensation for the occupation of the premises or both. In casethe unlawful detainer charged be after default in the payment of rent, thecomplaint must state the amount of such rent.

2. The summons shall be issued and served as in othercases, but the court, judge or justice of the peace may shorten the time withinwhich the defendant shall be required to appear and defend the action, in whichcase the officer or person serving the summons shall change the prescribed formthereof to conform to the time of service as ordered; but where publication isnecessary the court shall direct publication for a period of not less than 1week.

3. At any time after the filing of the complaint andissuance of summons, the court, upon application therefor, may issue atemporary writ of restitution; provided:

(a) That the temporary writ of restitution shall notissue ex parte but only after the issuance and service of an order to showcause why a temporary writ of restitution shall not be issued and after thedefendant has been given an opportunity to oppose the issuance of the temporarywrit of restitution.

(b) That the temporary writ of restitution shall notissue until the court has had an opportunity to ascertain the factssufficiently to enable it to estimate the probable loss to the defendant andfix the amount of a bond to indemnify the party or parties against whom thetemporary writ may be issued.

(c) That the temporary writ of restitution shall notissue until there has been filed with the approval of the court a good andsufficient bond of indemnification in the amount fixed by the court.

[1911 CPA 651; A 1939, 171; 1951, 251]

NRS 40.310 Issueof fact to be tried by jury if proper demand made. Wheneveran issue of fact is presented by the pleadings, it shall be tried by a jury, ifproper demand is made pursuant to the Nevada Rules of Civil Procedure or the JusticeCourt Rules of Civil Procedure.

[1911 CPA 652; RL 5594; NCL 9141](NRS A 1975,1203)

NRS 40.320 Proofrequired of plaintiff and defendant on trial.

1. On the trial of any proceeding for any forcibleentry or forcible detainer, the plaintiff shall only be required to show, inaddition to the forcible entry or forcible detainer complained of, that he waspeaceably in the actual possession at the time of the forcible entry, or wasentitled to possession at the time of the forcible detainer.

2. The defendant may show in his defense that he orhis ancestors, or those whose interest in such premises he claims, have been inthe quiet possession thereof for the space of 1 whole year together next beforethe commencement of the proceedings, and that his interest therein is not thenended or determined, and such showing is a bar to the proceedings.

[1911 CPA 653; RL 5595; NCL 9142]

NRS 40.330 Amendmentof complaint to conform to proof; continuance. When,upon the trial of any proceeding under NRS40.220 to 40.420, inclusive, itappears from the evidence that the defendant has been guilty of either aforcible entry or forcible or unlawful detainer, and other than the offensecharged in the complaint, the judge must order that such complaint be forthwithamended to conform to such proofs. Such amendment must be without anyimposition of terms. No continuance must be permitted upon account of suchamendment, unless the defendant, by affidavit filed, shows to the satisfactionof the court good cause therefor.

[1911 CPA 654; RL 5596; NCL 9143]

NRS 40.340 Adjournments. The court or justice of the peace may for good cause shownadjourn the trial of any cause under NRS40.220 to 40.420, inclusive, notexceeding 5 days; and when the defendant, his agent or attorney, shall makeoath that he cannot safely proceed to trial for want of some material witness,naming him, stating the evidence that he expects to obtain, showing that he hasused due diligence to obtain such witness and believes that if an adjournmentbe allowed he will be able to procure the attendance of such witness, or hisdeposition, in time to produce the same upon the trial, in which case, if suchperson or persons will give bond, with one or more sufficient sureties,conditioned to pay the complainant for all rent that may accrue during thepending of such suit, and all costs and damages consequent upon such adjournment,the court or justice of the peace shall adjourn the cause for such reasonabletime as may appear necessary, not exceeding 30 days.

[1911 CPA 655; RL 5597; NCL 9144]

NRS 40.350 Trialnot to be adjourned when complainant admits evidence in affidavit would begiven. If the complainant admit that theevidence stated in the affidavit mentioned in NRS40.340 would be given by such witness, and agree that it be considered asactually given on the trial, or offered and overruled as improper, the trialshall not be adjourned.

[1911 CPA 656; RL 5598; NCL 9145]

NRS 40.360 Judgment;damages; execution and enforcement.

1. Judgment. If, upon the trial, the verdict of thejury, or, if the case be tried without a jury, the finding of the court, be infavor of the plaintiff and against the defendant, judgment shall be entered forthe restitution of the premises; and, if the proceeding be for unlawfuldetainer after neglect or failure to perform any condition or covenant of thelease or agreement under which the property is held, or after default in thepayment of rent, the judgment shall also declare the forfeiture of such leaseor agreement.

2. Damages. The jury or the court, if the proceedingbe tried without a jury, shall also assess the damages occasioned to theplaintiff by any forcible entry, or by any forcible or unlawful detainer, andany amount found due the plaintiff by reason of waste of the premises by thedefendant during the tenancy, alleged in the complaint and proved on the trial,and find the amount of any rent due, if the alleged unlawful detainer be afterdefault in the payment of rent; and the judgment shall be rendered against thedefendant guilty of the forcible entry, or forcible or unlawful detainer, forthe rent and for three times the amount of the damages thus assessed.

3. Execution and enforcement. When the proceeding isfor an unlawful detainer after default in the payment of the rent, and thelease or agreement under which the rent is payable has not by its termsexpired, execution upon the judgment shall not be issued until the expirationof 5 days after the entry of the judgment, within which time the tenant, or anysubtenant, or any mortgagee of the term, or other party interested in itscontinuance, may pay into court for the landlord the amount of the judgment andcosts, and thereupon the judgment shall be satisfied and the tenant be restoredto his estate; but, if payment, as herein provided, be not made within the 5days, the judgment may be enforced for its full amount and for the possessionof the premises. In all other cases the judgment may be enforced immediately.

[1911 CPA 657; RL 5599; NCL 9146]

NRS 40.370 Verificationof complaint and answer. The complaint andanswer must be verified.

[1911 CPA 658; RL 5600; NCL 9147]

NRS 40.380 Provisionsgoverning appeals. Either party may, within 10days, appeal from the judgment rendered. But an appeal by the defendant shallnot stay the execution of the judgment, unless, within the 10 days, he shallexecute and file with the court or justice his undertaking to the plaintiff,with two or more sureties, in an amount to be fixed by the court or justice,but which shall not be less than twice the amount of the judgment and costs, tothe effect that, if the judgment appealed from be affirmed or the appeal bedismissed, the appellant will pay the judgment and the cost of appeal, thevalue of the use and occupation of the property, and damages justly accruing tothe plaintiff during the pendency of the appeal. Upon taking the appeal andfiling the undertaking, all further proceedings in the case shall be stayed.

[1911 CPA 659; RL 5601; NCL 9148]

NRS 40.385 Stayof execution upon appeal; duty of tenant who retains possession of premises topay rent during stay. Upon an appeal from anorder entered pursuant to NRS 40.253:

1. Except as otherwise provided in this subsection, astay of execution may be obtained by filing with the trial court a bond in theamount of $250 to cover the expected costs on appeal. In an action concerning alease of commercial property or any other property for which the monthly rentexceeds $1,000, the court may, upon its own motion or that of a party, and upona showing of good cause, order an additional bond to be posted to cover theexpected costs on appeal. A surety upon the bond submits to the jurisdiction ofthe appellate court and irrevocably appoints the clerk of that court as hisagent upon whom papers affecting his liability upon the bond may be served. Liabilityof a surety may be enforced, or the bond may be released, on motion in theappellate court without independent action.

2. A tenant who retains possession of the premisesthat are the subject of the appeal during the pendency of the appeal shall payto the landlord rent in the amount provided in the underlying contract betweenthe tenant and the landlord as it becomes due. If the tenant fails to pay suchrent, the landlord may initiate new proceedings for a summary eviction byserving the tenant with a new notice pursuant to NRS 40.253.

(Added to NRS by 1997, 3510)

NRS 40.390 Appellatecourt not to dismiss or quash proceedings for want of form. In all cases of appeal under NRS 40.220 to 40.420, inclusive, the appellate courtshall not dismiss or quash the proceedings for want of form, provided theproceedings have been conducted substantially according to the provisions of NRS 40.220 to 40.420, inclusive; and amendments to thecomplaint, answer or summons, in matters of form only, may be allowed by thecourt at any time before final judgment upon such terms as may be just; and allmatters of excuse, justification or avoidance of the allegations in thecomplaint may be given in evidence under the answer.

[1911 CPA 660; RL 5602; NCL 9149]

NRS 40.400 Rulesof practice. The provisions of NRS, NevadaRules of Civil Procedure and Nevada Rules of Appellate Procedure relative tocivil actions, appeals and new trials, so far as they are not inconsistent withthe provisions of NRS 40.220 to 40.420, inclusive, apply to the proceedingsmentioned in those sections.

[1911 CPA 661; RL 5603; NCL 9150]

NRS 40.420 Formof writ of restitution; execution.

1. The writ of restitution issued by a justice of thepeace must be substantially in the following form:

 

The State of Nevada to the sheriff or constable of the countyof ................, greeting: Whereas, A.B., of the county of................, at a court of inquiry of an unlawful holding over of (lands)(tenements) (a mobile home), and other possessions, held at my office (statingthe place), in the county aforesaid, on the ........ day of ..............,A.D. ....., before me, a justice of the peace for the county aforesaid, by theconsideration of the court, has recovered judgment against C.D., to haverestitution of (here describe the premises as in the complaint). You aretherefore commanded, that taking with you the force of the county, ifnecessary, you cause C.D. to be immediately removed from the premises, and A.B.to have peaceable restitution of the premises. You are also commanded that ofthe goods and chattels of C.D., within said county, which are not exempt fromexecution, you cause to be made the sum of ........ dollars for the plaintiff,together with the costs of suit endorsed hereon, and make return of this writwithin 30 days after this date. Given under my hand, this ........ day of ........,A.D. ..... E.F., justice of the peace.

 

2. The sheriff or constable shall execute the writ inthe same manner as required by the provisions of chapter21 of NRS for writs of execution.

[1911 CPA 663; RL 5605; NCL 9152](NRS A 1969,264; 1989, 1144)

NRS 40.425 Noticeof execution on writ of restitution.

1. Execution on the writ of restitution may occur onlyif the sheriff serves the judgment debtor with notice of the execution and acopy of the writ in the manner described in NRS21.076. The notice must describe the types of property exempt fromexecution and explain the procedure for claiming those exemptions. The clerk ofthe court shall attach the notice to the writ at the time the writ is issued.

2. The notice required pursuant to subsection 1 mustbe in the form and served in the manner provided for execution on judgmentspursuant to NRS 21.075 and 21.076.

(Added to NRS by 1989, 1144)

ACTIONS FOR FORECLOSURE OF REAL MORTGAGES

NRS 40.430 Actionfor recovery of debt secured by mortgage or other lien; action defined.

1. Except in cases where a person proceeds under subsection2 of NRS 40.495 or subsection 1 of NRS 40.512, there may be but one action forthe recovery of any debt, or for the enforcement of any right secured by amortgage or other lien upon real estate. That action must be in accordance withthe provisions of this section and NRS40.433 to 40.459, inclusive. In thataction, the judgment must be rendered for the amount found due the plaintiff,and the court, by its decree or judgment, may direct a sale of the encumberedproperty, or such part thereof as is necessary, and apply the proceeds of thesale as provided in NRS 40.462.

2. This section must be construed to permit a securedcreditor to realize upon the collateral for a debt or other obligation agreedupon by the debtor and creditor when the debt or other obligation was incurred.

3. A sale directed by the court pursuant to subsection1 must be conducted in the same manner as the sale of real property uponexecution, by the sheriff of the county in which the encumbered land issituated, and if the encumbered land is situated in two or more counties, thecourt shall direct the sheriff of one of the counties to conduct the sale withlike proceedings and effect as if the whole of the encumbered land weresituated in that county.

4. As used in this section, an action does notinclude any act or proceeding:

(a) To appoint a receiver for, or obtain possession of,any real or personal collateral for the debt or as provided in NRS 32.015.

(b) To enforce a security interest in, or theassignment of, any rents, issues, profits or other income of any real orpersonal property.

(c) To enforce a mortgage or other lien upon any realor personal collateral located outside of the State which does not, except asrequired under the laws of that jurisdiction, result in a personal judgmentagainst the debtor.

(d) For the recovery of damages arising from thecommission of a tort, including a recovery under NRS 40.750, or the recovery of anydeclaratory or equitable relief.

(e) For the exercise of a power of sale pursuant to NRS 107.080.

(f) For the exercise of any right or remedy authorizedby chapter 104 of NRS or by the UniformCommercial Code as enacted in any other state.

(g) For the exercise of any right to set off, or toenforce a pledge in, a deposit account pursuant to a written agreement orpledge.

(h) To draw under a letter of credit.

(i) To enforce an agreement with a surety or guarantorif enforcement of the mortgage or other lien has been automatically stayedpursuant to 11 U.S.C. 362 or pursuant to an order of a federal bankruptcycourt under any other provision of the United States Bankruptcy Code for notless than 120 days following the mailing of notice to the surety or guarantorpursuant to subsection 1 of NRS 107.095.

(j) To collect any debt, or enforce any right, securedby a mortgage or other lien on real property if the property has been sold to aperson other than the creditor to satisfy, in whole or in part, a debt or otherright secured by a senior mortgage or other senior lien on the property.

(k) Relating to any proceeding in bankruptcy, includingthe filing of a proof of claim, seeking relief from an automatic stay and anyother action to determine the amount or validity of a debt.

(l) For filing a claim pursuant to chapter 147 of NRS or to enforce such a claimwhich has been disallowed.

(m) Which does not include the collection of the debtor realization of the collateral securing the debt.

(n) Pursuant to NRS40.507 or 40.508.

(o) Which is exempted from the provisions of thissection by specific statute.

(p) To recover costs of suit, costs and expenses ofsale, attorneys fees and other incidental relief in connection with any actionauthorized by this subsection.

[1911 CPA 559; RL 5501; NCL 9048](NRS A 1965,915; 1969, 572; 1987, 1345; 1989, 888, 1768; 1993, 151)

NRS 40.433 Mortgageor other lien defined. As used in NRS 40.430 to 40.459, inclusive, unless the contextotherwise requires, a mortgage or other lien includes a deed of trust, butdoes not include a lien which arises pursuant to chapter108 of NRS, pursuant to an assessment under chapter116, 117, 119Aor 278A of NRS or pursuant to a judgment ordecree of any court of competent jurisdiction.

(Added to NRS by 1989, 1767; A 1991, 580)

NRS 40.435 Judicialproceedings in violation of NRS 40.430; provisions of NRS 40.430as an affirmative defense.

1. The commencement of or participation in a judicialproceeding in violation of NRS 40.430does not forfeit any of the rights of a secured creditor in any real orpersonal collateral, or impair the ability of the creditor to realize upon anyreal or personal collateral, if the judicial proceeding is:

(a) Stayed or dismissed before entry of a finaljudgment; or

(b) Converted into an action which does not violate NRS 40.430.

2. If the provisions of NRS 40.430 are timely interposed as anaffirmative defense in such a judicial proceeding, upon the motion of any partyto the proceeding the court shall:

(a) Dismiss the proceeding without prejudice; or

(b) Grant a continuance and order the amendment of thepleadings to convert the proceeding into an action which does not violate NRS 40.430.

3. The failure to interpose, before the entry of afinal judgment, the provisions of NRS 40.430as an affirmative defense in such a proceeding waives the defense in thatproceeding. Such a failure does not affect the validity of the final judgment,but entry of the final judgment releases and discharges the mortgage or otherlien.

4. As used in this section, final judgment means ajudgment which imposes personal liability on the debtor for the payment ofmoney and which may be appealed under the Nevada Rules of Appellate Procedure.

(Added to NRS by 1989, 1767)

NRS 40.440 Dispositionof surplus money. If there is surplus money remainingafter payment of the amount due on the mortgage or other lien, with costs, thecourt may cause the same to be paid to the person entitled to it pursuant to NRS 40.462, and in the meantime may directit to be deposited in court.

[1911 CPA 560; RL 5502; NCL 9049](NRS A 1989,888, 1769)

NRS 40.450 Proceedingswhen debt secured falls due at different times. Ifthe debt for which the mortgage or other lien on real property is held is notall due, as soon as a sufficient amount of the property has been sold to paythe amount due, with costs, the sale shall cease. Afterwards, as often as morebecomes due for principal or interest, the court may, on motion, order more tobe sold. However, if the property cannot be sold in portions without injury tothe parties, the whole may be ordered to be sold in the first instance, and theentire debt and costs paid, with a rebate of interest where such a rebate isproper.

[1911 CPA 561; RL 5503; NCL 9050](NRS A 1989,1769)

FORECLOSURE SALES AND DEFICIENCY JUDGMENTS

NRS 40.451 Indebtednessdefined. As used in NRS 40.453 to 40.462, inclusive, indebtedness means theprincipal balance of the obligation secured by a mortgage or other lien on realproperty, together with all interest accrued and unpaid prior to the time offoreclosure sale, all costs and fees of such a sale, all advances made withrespect to the property by the beneficiary, and all other amounts secured bythe mortgage or other lien on the real property in favor of the person seekingthe deficiency judgment. Such amount constituting a lien is limited to theamount of the consideration paid by the lienholder.

(Added to NRS by 1969, 572; A 1989, 1769)

NRS 40.453 Waiverof rights in documents relating to sale of real property against public policyand unenforceable; exception. Except asotherwise provided in NRS 40.495:

1. It is hereby declared by the Legislature to beagainst public policy for any document relating to the sale of real property tocontain any provision whereby a mortgagor or the grantor of a deed of trust ora guarantor or surety of the indebtedness secured thereby, waives any rightsecured to him by the laws of this state.

2. A court shall not enforce any such provision.

(Added to NRS by 1969, 573; A 1973, 911; 1985, 371;1987, 1643; 1993, 152)

NRS 40.455 Deficiencyjudgment: Award to judgment creditor or beneficiary of deed of trust.

1. Upon application of the judgment creditor or thebeneficiary of the deed of trust within 6 months after the date of theforeclosure sale or the trustees sale held pursuant to NRS 107.080, respectively, and after therequired hearing, the court shall award a deficiency judgment to the judgmentcreditor or the beneficiary of the deed of trust if it appears from thesheriffs return or the recital of consideration in the trustees deed thatthere is a deficiency of the proceeds of the sale and a balance remaining dueto the judgment creditor or the beneficiary of the deed of trust, respectively.

2. If the indebtedness is secured by more than oneparcel of real property, more than one interest in the real property or morethan one mortgage or deed of trust, the 6-month period begins to run after thedate of the foreclosure sale or trustees sale of the last parcel or otherinterest in the real property securing the indebtedness, but in no event maythe application be filed more than 2 years after the initial foreclosure saleor trustees sale.

(Added to NRS by 1969, 573; A 1979, 450; 1985, 371;1987, 1345)

NRS 40.457 Hearingbefore award of deficiency judgment; appraisal of property sold.

1. Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearingand shall take evidence presented by either party concerning the fair marketvalue of the property sold as of the date of foreclosure sale or trusteessale. Notice of such hearing shall be served upon all defendants who haveappeared in the action and against whom a deficiency judgment is sought, orupon their attorneys of record, at least 15 days before the date set forhearing.

2. Upon application of any party made at least 10 daysbefore the date set for the hearing the court shall, or upon its own motion thecourt may, appoint an appraiser to appraise the property sold as of the date offoreclosure sale or trustees sale. Such appraiser shall file with the clerkhis appraisal, which is admissible in evidence. The appraiser shall take anoath that he has truly, honestly and impartially appraised the property to thebest of his knowledge and ability. Any appraiser so appointed may be called andexamined as a witness by any party or by the court. The court shall fix areasonable compensation for the appraiser, but his fee shall not exceed similarfees for similar services in the county where the encumbered land is situated.

(Added to NRS by 1969, 573)

NRS 40.459 Limitationson amount of money judgment. After the hearing,the court shall award a money judgment against the debtor, guarantor or suretywho is personally liable for the debt. The court shall not render judgment formore than:

1. The amount by which the amount of the indebtednesswhich was secured exceeds the fair market value of the property sold at thetime of the sale, with interest from the date of the sale; or

2. The amount which is the difference between the amountfor which the property was actually sold and the amount of the indebtednesswhich was secured, with interest from the date of sale,

whichever isthe lesser amount.

(Added to NRS by 1969, 573; A 1985, 371; 1987, 1644;1989, 1770; 1993, 152)

NRS 40.462 Distributionof proceeds of foreclosure sale.

1. Except as otherwise provided by specific statute,this section governs the distribution of the proceeds of a foreclosure sale.The provisions of NRS 40.455, 40.457 and 40.459 do not affect the right to receivethose proceeds, which vests at the time of the foreclosure sale. The purchaseof any interest in the property at the foreclosure sale, and the subsequentdisposition of the property, does not affect the right of the purchaser to thedistribution of proceeds pursuant to paragraph (c) of subsection 2 of thissection, or to obtain a deficiency judgment pursuant to NRS 40.455, 40.457 and 40.459.

2. The proceeds of a foreclosure sale must bedistributed in the following order of priority:

(a) Payment of the reasonable expenses of takingpossession, maintaining, protecting and leasing the property, the costs andfees of the foreclosure sale, including reasonable trustees fees, applicabletaxes and the cost of title insurance and, to the extent provided in thelegally enforceable terms of the mortgage or lien, any advances, reasonableattorneys fees and other legal expenses incurred by the foreclosing creditorand the person conducting the foreclosure sale.

(b) Satisfaction of the obligation being enforced bythe foreclosure sale.

(c) Satisfaction of obligations secured by any juniormortgages or liens on the property, in their order of priority.

(d) Payment of the balance of the proceeds, if any, tothe debtor or his successor in interest.

If there areconflicting claims to any portion of the proceeds, the person conducting theforeclosure sale is not required to distribute that portion of the proceedsuntil the validity of the conflicting claims is determined through interpleaderor otherwise to his satisfaction.

3. A person who claims a right to receive the proceedsof a foreclosure sale pursuant to paragraph (c) of subsection 2 must, upon thewritten demand of the person conducting the foreclosure sale, provide:

(a) Proof of the obligation upon which he claims hisright to the proceeds; and

(b) Proof of his interest in the mortgage or lien,unless that proof appears in the official records of a county in which theproperty is located.

Such a demandis effective upon personal delivery or upon mailing by registered or certifiedmail, return receipt requested, to the last known address of the claimant.Failure of a claimant to provide the required proof within 15 days after theeffective date of the demand waives his right to receive those proceeds.

4. As used in this section, foreclosure sale meansthe sale of real property to enforce an obligation secured by a mortgage orlien on the property, including the exercise of a trustees power of salepursuant to NRS 107.080.

(Added to NRS by 1989, 887)

RIGHTS OF GUARANTOR, SURETY OR OBLIGOR IN REAL PROPERTY

NRS 40.465 Indebtednessdefined. As used in NRS 40.475, 40.485 and 40.495, indebtedness means the principalbalance of the obligation, together with all accrued and unpaid interest, andthose costs, fees, advances and other amounts secured by the mortgage or lienupon real property.

(Added to NRS by 1987, 1643; A 1989, 1001)

NRS 40.475 Remedyagainst mortgagor or grantor; assignment of creditors rights to guarantor,surety or obligor. Upon full satisfaction by aguarantor, surety or other obligor, other than the mortgagor or grantor of adeed of trust, of the indebtedness secured by a mortgage or lien upon realproperty, the paying guarantor, surety or other obligor is entitled to enforceevery remedy which the creditor then has against the mortgagor or grantor ofthe mortgage or lien upon real property, and is entitled to an assignment fromthe creditor of all of the rights which the creditor then has by way ofsecurity for the performance of the indebtedness.

(Added to NRS by 1987, 1643)

NRS 40.485 Interestin proceeds of secured indebtedness upon partial satisfaction of indebtedness. Immediately upon partial satisfaction by a guarantor,surety or other obligor, other than the mortgagor or grantor of a deed oftrust, of the indebtedness secured by a mortgage or lien upon real property,the paying guarantor, surety or other obligor automatically, by operation oflaw and without further action, receives an interest in the proceeds of theindebtedness secured by the mortgage or lien to the extent of the partialsatisfaction, subject only to the creditors prior right to recover the balanceof the indebtedness owed by the mortgagor or grantor.

(Added to NRS by 1987, 1643)

NRS 40.495 Waiverof rights; separate action to enforce obligation; available defenses.

1. The provisions of NRS40.475 and 40.485 may be waived bythe guarantor, surety or other obligor only after default.

2. Except as otherwise provided in subsection 4, aguarantor, surety or other obligor, other than the mortgagor or grantor of adeed of trust, may waive the provisions of NRS40.430. If a guarantor, surety or other obligor waives the provisions of NRS 40.430, an action for the enforcementof that persons obligation to pay, satisfy or purchase all or part of anindebtedness or obligation secured by a mortgage or lien upon real property maybe maintained separately and independently from:

(a) An action on the debt;

(b) The exercise of any power of sale;

(c) Any action to foreclose or otherwise enforce amortgage or lien and the indebtedness or obligations secured thereby; and

(d) Any other proceeding against a mortgagor or grantorof a deed of trust.

3. If the obligee maintains an action to foreclose orotherwise enforce a mortgage or lien and the indebtedness or obligationssecured thereby, the guarantor, surety or other obligor may assert any legal orequitable defenses provided pursuant to the provisions of NRS 40.451 to 40.462, inclusive.

4. The provisions of NRS40.430 may not be waived by a guarantor, surety or other obligor if themortgage or lien:

(a) Secures an indebtedness for which the principalbalance of the obligation was never greater than $500,000;

(b) Secures an indebtedness to a seller of realproperty for which the obligation was originally extended to the seller for anyportion of the purchase price;

(c) Is secured by real property which is used primarilyfor the production of farm products as of the date the mortgage or lien uponthe real property is created; or

(d) Is secured by real property upon which:

(1) The owner maintains his principal residence;

(2) There is not more than one residentialstructure; and

(3) Not more than four families reside.

(Added to NRS by 1987, 1643; A 1989, 1001)

ENVIRONMENTAL IMPAIRMENT OF REAL COLLATERAL OF SECUREDLENDER

NRS 40.501 Definitions. As used in NRS 40.501to 40.512, inclusive, the words andterms defined in NRS 40.502 to 40.506, inclusive, have the meanings ascribedto them in those sections.

(Added to NRS by 1993, 153; A 1995, 510)

NRS 40.502 Environmentalprovision defined. Environmental provisionmeans any written representation, warranty, indemnity, promise or covenantrelating to the existence, location, nature, use, generation, manufacture,storage, disposal, handling, or past, present, future or threatened release ofany hazardous substance from, in, into or onto real collateral, or to past,present or future compliance with any law relating thereto, made by a debtor inconjunction with the making, renewal or modification of a loan, extension ofcredit, guaranty or other obligation involving the debtor, whether or not therepresentation, warranty, indemnity, promise or covenant is or was contained inor secured by the mortgage and whether or not the mortgage has been discharged,reconveyed or foreclosed upon.

(Added to NRS by 1993, 153; A 1995, 510)

NRS 40.503 Environmentallyimpaired defined. Real collateral is environmentallyimpaired if the estimated costs to clean up and remedy a past, present orthreatened release of any hazardous substance from, in, into or onto it exceeds10 percent of the total indebtedness owed to the secured lender secured by thecollateral.

(Added to NRS by 1993, 153; A 1995, 510)

NRS 40.504 Hazardoussubstance defined. Hazardous substancemeans:

1. An element, compound, mixture, solution, materialor substance whose use, possession, transportation, storage, release, dischargeor disposal is regulated pursuant to chapter 444,445A, 445B,459, 477, 590 or 618 ofNRS or the Uniform Fire Code (1988 edition);

2. An element, compound, mixture, solution, materialor substance designated as a hazardous substance pursuant to 42 U.S.C. 9602and an element, compound, mixture, solution, material or substance described in42 U.S.C. 9601(14);

3. An element, compound, mixture, solution, materialor substance listed as a hazardous waste in, or having the characteristicsidentified in, 42 U.S.C. 6921 on January 1, 1993, except any waste for whichregulation under the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.) has been suspended by an act of Congress; and

4. Petroleum, including crude oil or any fractionthereof, natural gas, natural gas liquids, liquefied natural gas, syntheticoil, synthetic gas usable for fuel or any mixture thereof.

(Added to NRS by 1993, 153; A 1995, 510)

NRS 40.505 Releasedefined. Release means a spilling, leaking,pumping, pouring, emitting, emptying, discharging, ejecting, escaping,leaching, dumping or disposing of a hazardous substance into the environment,including continuing migration into or through the soil, surface water orgroundwater.

(Added to NRS by 1993, 153; A 1995, 510)

NRS 40.506 Securedlender defined. Secured lender means theholder of an obligation secured by a mortgage.

(Added to NRS by 1993, 154; A 1995, 510)

NRS 40.507 Rightof entry and inspection of real collateral.

1. A secured lender may enter and inspect realcollateral for the purpose of determining the existence, location, nature andmagnitude of any past, present or threatened release or presence of a hazardoussubstance from, in, into or onto it:

(a) Upon reasonable belief of the existence of a past,present or threatened release or the presence of any hazardous substance from,in, into or onto it not previously disclosed in writing to him in conjunctionwith the making, renewal or modification of a loan, extension of credit,guaranty or other obligation involving the debtor; or

(b) After the commencement of a trustees sale orjudicial foreclosure proceedings against the real collateral.

2. A secured lender shall not abuse the right of entryand inspection or use it to harass the debtor or tenant of the property. Exceptin case of an emergency, when the debtor or tenant of the property hasabandoned the premises, or if it is impracticable to do so, a secured lendershall give the debtor or tenant of the property reasonable notice of intent toenter, and enter only during the debtors or tenants normal business hours.Twenty-four hours notice is presumed to be reasonable in the absence ofevidence to the contrary.

3. If a secured lender is refused the right of entryand inspection by the debtor or tenant of the property, or is otherwise unableto enter and inspect the property without a breach of the peace, he may, uponpetition, obtain an order from a court of competent jurisdiction to exercisehis rights under subsection 1.

(Added to NRS by 1993, 154; A 1995, 510)

NRS 40.508 Actionby secured lender concerning environmental provision. Asecured lender may bring a separate action for a breach of an environmental provision,to recover damages for the breach or for the enforcement of an environmentalprovision.

(Added to NRS by 1993, 154; A 1995, 510)

NRS 40.509 Limitationon amount of damages recoverable in action concerning environmental provision;recovery of interest.

1. Unless the environmental provision expresslypermits a different or greater recovery or subsection 2 permits the addition ofinterest, the damages recoverable by a secured lender in an action pursuant to NRS 40.508 are limited to the sum of reimbursementor indemnification for:

(a) If he acted pursuant to an order of any federal,state or local governmental agency relating to the cleaning up, remedying orother responsive action required by applicable law which is anticipated by theenvironmental provision, all amounts reasonably advanced in good faith by himin connection therewith;

(b) If he did not act pursuant to such an order, thosecosts relating to a reasonable cleaning up, remedying or other responsiveaction concerning hazardous substances, performed in good faith, which isanticipated by the environmental provision;

(c) All liabilities of the secured lender to any thirdparty relating to the breach, unless the secured lender had actual knowledge ofthe environmental condition which is the basis of the claim for indemnificationbefore entering into the transaction in which the environmental provision wasgiven; and

(d) Costs, attorneys fees and other incidental relief.

2. If the parties have so agreed, the lender mayrecover interest on the amount advanced by him to cure or mitigate the breach.

(Added to NRS by 1993, 154; A 1995, 510)

NRS 40.511 Exceptionsto applicability of NRS 40.507 and 40.508. NRS 40.507 and 40.508 do not apply if the real collateralis a unit put to residential use in a common-interest community or is realproperty upon which:

1. The owner maintains his principal residence;

2. There is not more than one residential structure;and

3. Not more than four families reside.

(Added to NRS by 1993, 155; A 1995, 510)

NRS 40.512 Environmentalimpairment of real collateral: Waiver of lien; notice of waiver; exception;recording of waiver.

1. If real collateral is environmentally impaired andthe debtors obligation is in default, a secured lender may:

(a) Waive his lien as to all of the real collateral andproceed as an unsecured creditor, including reduction of his claim against thedebtor to judgment and any other rights and remedies permitted by law; or

(b) Waive his lien in accordance with paragraph (a) asto that part of the real collateral which is environmentally impaired andproceed against the unimpaired real collateral.

2. To waive his lien against all or part of the environmentallyimpaired real collateral, the secured lender must, before commencement of anyaction, record with the county recorder of the county where the real collateralis located a notice of intent to waive the lien and mail a copy thereof, byregistered or certified mail, return receipt requested, with postage prepaid,to the debtor, to the person who holds the title of record on the date of thenotice, and to those persons with an interest, as defined in NRS 107.090, whose interest or claimedinterest is subordinate to the secured lenders lien, at their respectiveaddresses, if known, otherwise to the address of the real collateral. In thecase of a partial waiver the notice of intent to waive may be contained in anotice of default and election to sell. The notice of intent to waive mustcontain:

(a) A legal description of the environmentally impairedreal collateral;

(b) A statement that the secured lender intends toproceed against the debtor under the applicable paragraph of subsection 1; and

(c) If the secured lender is proceeding under paragraph(b) of subsection 1, a statement that he will proceed against the unimpairedproperty, which may result in a judgment for deficiency against the debtor as aresult of diminution in value of the collateral because of the exclusion of theenvironmentally impaired portion.

3. A secured lender may not waive his lien as a resultof any environmental impairment if he had actual knowledge of the environmentalimpairment at the time the lien was created. In determining whether a securedlender had such knowledge, the report of any person legally entitled to preparethe report with respect to the existence or absence of any environmentalimpairment is prima facie evidence of the existence or absence, as the case maybe, of any environmental impairment.

4. A waiver made by a secured lender pursuant to thissection is not final or conclusive until a final judgment, as defined insubsection 4 of NRS 40.435, has beenobtained. If the waiver covers the full extent of the collateral, the lendershall immediately thereafter cause his lien to be released by recording thewaiver in the same manner as the lien was recorded.

(Added to NRS by 1993, 155; A 1995, 510)

PROCEEDINGS TO ESTABLISH TERMINATION OF LIFE ESTATES

NRS 40.515 Petition,notice, hearing and order. If any person hasdied, or shall hereafter die, who at the time of his death was the owner of alife estate which terminates by reason of his death, any person interested inthe property, or in the title thereto, in which such life estate was held, mayfile in the district court of the county in which the property is situated, hisverified petition, setting forth such facts, and thereupon and after suchnotice by publication or otherwise, as the court or judge may order, the courtor judge shall hear such petition and the evidence offered in support thereof,and if upon such hearing it shall appear that such life estate of such deceasedperson absolutely terminated by reason of his death, the court or judge shallmake an order to that effect, and thereupon a certified copy of such order maybe recorded in the office of the county recorder.

[1911 CPA 642; RL 5584; NCL 9131](Substitutedin revision for NRS 40.460)

METHODS OF TERMINATION OF INTERESTS OF DECEASED PERSONS INPROPERTY

NRS 40.525 Petition;notice; hearing and order; alternative method.

1. If title or an interest in real or personalproperty is affected by the death of any person, any other person who claimsany interest in the real or personal property, if his interest is affected bythe death of that person, or the State of Nevada, may file in the districtcourt of any county in which any part of the real or personal property issituated a verified petition setting forth those facts and particularlydescribing the real or personal property, the interest of the petitioner andthe interest of the deceased therein.

2. The clerk shall set the petition for hearing by thecourt. Notice of hearing of the petition must be mailed, by certified mail,return receipt requested, postage prepaid, to the heirs at law of the deceasedperson at their places of business or residences, if known, and if not, bypublication for at least 3 successive weeks in such newspaper as the courtorders. The clerk shall send a copy of the notice of hearing or of theaffidavit to the Department of Health and Human Services by certified mail,return receipt requested, postage prepaid, if the State is not the petitioner,at the time notice is mailed to the heirs at law or the notice is published.Failure on the part of any such heir at law to contest the petition precludesany such heir at law from thereafter contesting the validity of the jointinterest or its creation or termination.

3. The court shall take evidence for or against thepetition, and may render judgment thereon establishing the fact of the deathand the termination of the interest of the deceased in the real or personalproperty described in the petition.

4. A certified copy of the decree may be recorded inthe office of the recorder of each county in which any part of the real orpersonal property is situated.

5. As an alternative method of terminating theinterest of the deceased person, if title or an interest in real or personalproperty held in joint tenancy or as community property with right ofsurvivorship is affected by the death of a joint tenant or spouse, any personwho has knowledge of the facts may record in the office of the county recorderin the county where the property is situated an affidavit meeting therequirements of NRS 111.365, accompaniedby a certified copy of the death certificate of the deceased person.

[1:18:1939; A 1951, 172](NRS A 1963, 802; 1965, 665,1004; 1983, 666; 1991, 457; 1995, 2569; 2001, 1750; 2003, 876)

NRS 40.535 Affidavitor petition may be filed in probate proceeding. Anyaffidavit or petition, such as described in NRS40.525, may be filed as a part of any probate proceeding.

[1(a):18:1939; added 1951, 172](NRS A 1965,665)(Substituted in revision for NRS 40.480)

ACTIONS RESULTING FROM CONSTRUCTIONAL DEFECT

General Provisions

NRS 40.600 Definitions. As used in NRS 40.600to 40.695, inclusive, unless the contextotherwise requires, the words and terms defined in NRS 40.605 to 40.634, inclusive, have the meaningsascribed to them in those sections.

(Added to NRS by 1995, 2539; A 1997, 2716; 1999, 1440; 2001 Special Session,67; 2003, 2041)

NRS 40.603 Amenda complaint to add a cause of action for a constructional defect defined. Amend a complaint to add a cause of action for a constructionaldefect means any act by which a claimant seeks to:

1. Add to the pleadings a defective component that isnot otherwise included in the pleadings and for which a notice was notpreviously given; or

2. Amend the pleadings in such a manner that thepractical effect is the addition of a constructional defect that is nototherwise included in the pleadings.

The termdoes not include amending a complaint to plead a different cause for aconstructional defect which is included in the same action.

(Added to NRS by 2003, 2034)

NRS 40.605 Appurtenancedefined.

1. Appurtenance means a structure, installation,facility, amenity or other improvement that is appurtenant to or benefits oneor more residences, but is not a part of the dwelling unit. The term includes,without limitation, the parcel of real property, recreational facilities, golfcourses, walls, sidewalks, driveways, landscaping, common elements and limitedcommon elements other than those described in NRS 116.2102, and other structures,installations, facilities and amenities associated with or benefiting one ormore residences.

2. As used in this section:

(a) Common elements has the meaning ascribed to it inNRS 116.017.

(b) Limited common element has the meaning ascribedto it in NRS 116.059.

(Added to NRS by 1995, 2539; A 1997, 2716; 1999, 1440)

NRS 40.610 Claimantdefined. Claimant means:

1. An owner of a residence or appurtenance;

2. A representative of a homeowners association thatis responsible for a residence or appurtenance and is acting within the scopeof his duties pursuant to chapter 116 or 117 of NRS; or

3. Each owner of a residence or appurtenance to whom anotice applies pursuant to subsection 4 of NRS40.645.

(Added to NRS by 1995, 2539; A 1997, 2717; 2003, 2041)

NRS 40.615 Constructionaldefect defined. Constructional defect meansa defect in the design, construction, manufacture, repair or landscaping of anew residence, of an alteration of or addition to an existing residence, or ofan appurtenance and includes, without limitation, the design, construction,manufacture, repair or landscaping of a new residence, of an alteration of oraddition to an existing residence, or of an appurtenance:

1. Which is done in violation of law, including,without limitation, in violation of local codes or ordinances;

2. Which proximately causes physical damage to theresidence, an appurtenance or the real property to which the residence orappurtenance is affixed;

3. Which is not completed in a good and workmanlikemanner in accordance with the generally accepted standard of care in theindustry for that type of design, construction, manufacture, repair orlandscaping; or

4. Which presents an unreasonable risk of injury to aperson or property.

(Added to NRS by 1995, 2539; A 2003, 2041)

NRS 40.620 Contractordefined. Contractor means a person who, withor without a license issued pursuant to chapter624 of NRS, by himself or through his agents, employees or subcontractors:

1. Develops, constructs, alters, repairs, improves orlandscapes a residence, appurtenance or any part thereof;

2. Develops a site for a residence, appurtenance orany part thereof; or

3. Sells a residence or appurtenance, any part ofwhich the person, by himself or through his agents, employees orsubcontractors, has developed, constructed, altered, repaired, improved orlandscaped.

(Added to NRS by 1995, 2539; A 1997, 2717)

NRS 40.623 Designprofessional defined. Design professionalmeans a person who holds a professional license or certificate issued pursuantto chapter 623, 623Aor 625 of NRS.

(Added to NRS by 2003, 2034)

NRS 40.625 Homeownerswarranty defined. Homeowners warrantymeans a warranty or policy of insurance:

1. Issued or purchased by or on behalf of a contractorfor the protection of a claimant; or

2. Purchased by or on behalf of a claimant pursuant toNRS 690B.100 to 690B.180, inclusive.

The termincludes a warranty contract issued by a risk retention group that operates incompliance with chapter 695E of NRS andinsures all or any part of the liability of a contractor for the cost to repaira constructional defect in a residence.

(Added to NRS by 1995, 2540; A 1997, 2717; 1999, 1440)

NRS 40.630 Residencedefined. Residence means any dwelling inwhich title to the individual units is transferred to the owners.

(Added to NRS by 1995, 2540; A 1997, 2717)

NRS 40.632 Subcontractordefined. Subcontractor means a contractorwho performs work on behalf of another contractor in the construction of aresidence or appurtenance.

(Added to NRS by 2003, 2034)

NRS 40.634 Supplierdefined. Supplier means a person whoprovides materials, equipment or other supplies for the construction of aresidence or appurtenance.

(Added to NRS by 2003, 2034)

NRS 40.635 Applicability;effect on other defenses. NRS 40.600 to 40.695, inclusive:

1. Apply to any claim that arises before, on or afterJuly 1, 1995, as the result of a constructional defect, except a claim forpersonal injury or wrongful death, if the claim is the subject of an actioncommenced on or after July 1, 1995.

2. Prevail over any conflicting law otherwiseapplicable to the claim or cause of action.

3. Do not bar or limit any defense otherwiseavailable, except as otherwise provided in those sections.

4. Do not create a new theory upon which liability maybe based, except as otherwise provided in those sections.

(Added to NRS by 1995, 2540; A 1997, 2717; 2003, 2041)

Conditions and Limitations on Actions

NRS 40.640 Liabilityof contractor. In a claim to recover damagesresulting from a constructional defect, a contractor is liable for his acts oromissions or the acts or omissions of his agents, employees or subcontractorsand is not liable for any damages caused by:

1. The acts or omissions of a person other than thecontractor or his agent, employee or subcontractor;

2. The failure of a person other than the contractoror his agent, employee or subcontractor to take reasonable action to reduce thedamages or maintain the residence;

3. Normal wear, tear or deterioration;

4. Normal shrinkage, swelling, expansion orsettlement; or

5. Any constructional defect disclosed to an ownerbefore his purchase of the residence, if the disclosure was provided inlanguage that is understandable and was written in underlined and boldfacedtype with capital letters.

(Added to NRS by 1995, 2540; A 1997, 2718)

NRS 40.645 Noticeof defect: Required before commencement of or addition to certain actions;content; reliance on expert opinion based on representative sample; noticeregarding similarly situated owners; persons authorized to provide notice;exceptions.

1. Except as otherwise provided in this section and NRS 40.670, before a claimant commences anaction or amends a complaint to add a cause of action for a constructionaldefect against a contractor, subcontractor, supplier or design professional theclaimant:

(a) Must give written notice by certified mail, returnreceipt requested, to the contractor, at the contractors address listed in therecords of the State Contractors Board or in the records of the office of thecounty or city clerk or at the contractors last known address if his addressis not listed in those records; and

(b) May give written notice by certified mail, returnreceipt requested, to any subcontractor, supplier or design professional knownto the claimant who may be responsible for the constructional defect, if theclaimant knows that the contractor is no longer licensed in this State or thathe no longer acts as a contractor in this State.

2. The notice given pursuant to subsection 1 must:

(a) Include a statement that the notice is being givento satisfy the requirements of this section;

(b) Specify in reasonable detail the defects or anydamages or injuries to each residence or appurtenance that is the subject ofthe claim; and

(c) Describe in reasonable detail the cause of thedefects if the cause is known, the nature and extent that is known of thedamage or injury resulting from the defects and the location of each defectwithin each residence or appurtenance to the extent known.

3. Notice that includes an expert opinion concerningthe cause of the constructional defects and the nature and extent of the damageor injury resulting from the defects which is based on a valid and reliablerepresentative sample of the components of the residences or appurtenances maybe used as notice of the common constructional defects within the residences orappurtenances to which the expert opinion applies.

4. Except as otherwise provided in subsection 5, onenotice may be sent relating to all similarly situated owners of residences orappurtenances within a single development that allegedly have commonconstructional defects if:

(a) An expert opinion is obtained concerning the causeof the common constructional defects and the nature and extent of the damage orinjury resulting from the common constructional defects;

(b) That expert opinion concludes that based on a validand reliable representative sample of the components of the residences andappurtenances included in the notice, it is the opinion of the expert thatthose similarly situated residences and appurtenances may have such commonconstructional defects; and

(c) A copy of the expert opinion is included with thenotice.

5. A representative of a homeowners association maysend notice pursuant to this section on behalf of an association that isresponsible for a residence or appurtenance if the representative is actingwithin the scope of his duties pursuant to chapter116 or 117 of NRS.

6. Notice is not required pursuant to this sectionbefore commencing an action if:

(a) The contractor, subcontractor, supplier or designprofessional has filed an action against the claimant; or

(b) The claimant has filed a formal complaint with alaw enforcement agency against the contractor, subcontractor, supplier ordesign professional for threatening to commit or committing an act of violenceor a criminal offense against the claimant or the property of the claimant.

(Added to NRS by 1995, 2540; A 1997, 2718; 1999, 1440; 2003, 2042)

NRS 40.6452 Commonconstructional defects within single development: Response to notice of defectby contractor; disclosure to unnamed owners; effect of contractor failing toprovide disclosure to unnamed owners.

1. Except as otherwise provided in subsection 2, notlater than 60 days after a contractor receives a notice pursuant to subsection4 of NRS 40.645 which alleges commonconstructional defects to residences or appurtenances within a single developmentand which complies with the requirements of subsection 4 of NRS 40.645 for giving such notice, thecontractor may respond to the named owners of the residences or appurtenancesin the notice in the manner set forth in NRS40.6472.

2. The contractor may provide a disclosure of thenotice of the alleged common constructional defects to each unnamed owner of aresidence or appurtenance within the development to whom the notice may applyin the manner set forth in this section. The disclosure must be sent bycertified mail, return receipt requested, to the home address of each suchowner. The disclosure must be mailed not later than 60 days after thecontractor receives the notice of the alleged common constructional defects,except that if the common constructional defects may pose an imminent threat tohealth and safety, the disclosure must be mailed as soon as reasonably practicable,but not later than 20 days after the contractor receives the notice.

3. The disclosure of a notice of alleged commonconstructional defects provided by a contractor to the unnamed owners to whomthe notice may apply pursuant to subsection 2 must include, without limitation:

(a) A description of the alleged common constructionaldefects identified in the notice that may exist in the residence orappurtenance;

(b) A statement that notice alleging commonconstructional defects has been given to the contractor which may apply to theowner;

(c) A statement advising the owner that he has 30 dayswithin which to request the contractor to inspect the residence or appurtenanceto determine whether the residence or appurtenance has the alleged commonconstructional defects;

(d) A form which the owner may use to request such aninspection or a description of the manner in which the owner may request suchan inspection;

(e) A statement advising the owner that if he fails torequest an inspection pursuant to this section, no notice shall be deemed to havebeen given by him for the alleged common constructional defects; and

(f) A statement that if the owner chooses not torequest an inspection of his residence or appurtenance, he is not precludedfrom sending a notice pursuant to NRS 40.645individually or commencing an action or amending a complaint to add a cause ofaction for a constructional defect individually after complying with the requirementsset forth in NRS 40.600 to 40.695, inclusive.

4. If an unnamed owner requests an inspection of hisresidence or appurtenance in accordance with subsection 3, the contractor mustprovide the response required pursuant to NRS40.6472 not later than 45 days after the date on which the contractorreceives the request.

5. If a contractor who receives a notice pursuant tosubsection 4 of NRS 40.645 does notprovide a disclosure to unnamed owners as authorized pursuant to this section,the owners of the residences or appurtenances to whom the notice may apply maycommence an action for the constructional defect without complying with anyother provision set forth in NRS 40.600to 40.695, inclusive. This subsectiondoes not establish or prohibit the right to maintain a class action.

6. If a contractor fails to provide a disclosure to anunnamed owner to whom the notice of common constructional defects was intendedto apply:

(a) The contractor shall be deemed to have waived hisright to inspect and repair any common constructional defect that wasidentified in the notice with respect to that owner; and

(b) The owner is not required to comply with theprovisions set forth in NRS 40.645 or 40.647 before commencing an action oramending a complaint to add a cause of action based on that commonconstructional defect.

(Added to NRS by 2003, 2034)

NRS 40.646 Noticeof defect to be forwarded by contractor to subcontractor, supplier or designprofessional; effect of failure to forward notice; inspection of allegeddefect; election to repair.

1. Except as otherwise provided in subsection 2, notlater than 30 days after the date on which a contractor receives notice of aconstructional defect pursuant to NRS 40.645,the contractor shall forward a copy of the notice by certified mail, returnreceipt requested, to the last known address of each subcontractor, supplier ordesign professional whom the contractor reasonably believes is responsible fora defect specified in the notice.

2. If a contractor does not provide notice as requiredpursuant to subsection 1, the contractor may not commence an action against thesubcontractor, supplier or design professional related to the constructionaldefect unless the contractor demonstrates that, after making a good faitheffort, he was unable to identify the subcontractor, supplier or designprofessional who he believes is responsible for the defect within the timeprovided pursuant to subsection 1.

3. Except as otherwise provided in subsection 4, notlater than 30 days after receiving notice from the contractor pursuant to thissection, the subcontractor, supplier or design professional shall inspect thealleged constructional defect in accordance with subsection 1 of NRS 40.6462 and provide the contractorwith a written statement indicating:

(a) Whether the subcontractor, supplier or designprofessional has elected to repair the defect for which the contractor believesthe subcontractor, supplier or design professional is responsible; and

(b) If the subcontractor, supplier or designprofessional elects to repair the defect, an estimate of the length of timerequired for the repair, and at least two proposed dates on and times at whichthe subcontractor, supplier or design professional is able to begin making therepair.

4. If the notice of a constructional defect forwardedby the contractor was given pursuant to subsection 4 of NRS 40.645 and the contractor provides adisclosure of the notice of the alleged common constructional defects to theunnamed owners to whom the notice may apply pursuant to NRS 40.6452:

(a) The contractor shall, in addition to the noticeprovided pursuant to subsection 1, upon receipt of a request for an inspection,forward a copy of the request to or notify each subcontractor, supplier ordesign professional who may be responsible for the alleged defect of therequest not later than 5 working days after receiving such a request; and

(b) Not later than 20 days after receiving notice fromthe contractor of such a request, the subcontractor, supplier or designprofessional shall inspect the alleged constructional defect in accordance withsubsection 2 of NRS 40.6462 and providethe contractor with a written statement indicating:

(1) Whether the subcontractor, supplier ordesign professional has elected to repair the defect for which the contractorbelieves the subcontractor, supplier or design professional is responsible; and

(2) If the subcontractor, supplier or designprofessional elects to repair the defect, an estimate of the length of timerequired for the repair, and at least two proposed dates on and times at whichthe subcontractor, supplier or design professional is able to begin making therepair.

5. If a subcontractor, supplier or design professionalelects to repair the constructional defect, the contractor or claimant may holdthe subcontractor liable for any repair which does not eliminate the defect.

(Added to NRS by 2003, 2035)

NRS 40.6462 Accessto residence or appurtenance with alleged defect after notice of defect isgiven; effect on owners who did not provide notice.

1. Except as otherwise provided in subsection 2, afternotice of a constructional defect is given to a contractor pursuant to NRS 40.645, the claimant shall, upon reasonablenotice, allow the contractor and each subcontractor, supplier or design professionalwho may be responsible for the alleged defect reasonable access to theresidence or appurtenance that is the subject of the notice to determine thenature and extent of a constructional defect and the nature and extent ofrepairs that may be necessary. To the extent possible, the persons entitled toinspect shall coordinate and conduct the inspections in a manner whichminimizes the inconvenience to the claimant.

2. If notice is given to the contractor pursuant tosubsection 4 of NRS 40.645, thecontractor and each subcontractor, supplier or design professional who may beresponsible for the defect do not have the right to inspect the residence orappurtenance of an owner who is not named in the notice unless the ownerrequests the inspection in the manner set forth in NRS 40.6452. If the owner does not requestthe inspection, the owner shall be deemed not to have provided notice pursuantto NRS 40.645.

(Added to NRS by 2003, 2036)

NRS 40.647 Claimantrequired to allow inspection of and reasonable opportunity to repair defect;effect of noncompliance.

1. Except as otherwise provided in NRS 40.6452, after notice of a constructionaldefect is given pursuant to NRS 40.645,before a claimant may commence an action or amend a complaint to add a cause ofaction for a constructional defect against a contractor, subcontractor,supplier or design professional, the claimant must:

(a) Allow an inspection of the alleged constructionaldefect to be conducted pursuant to NRS40.6462; and

(b) Allow the contractor, subcontractor, supplier ordesign professional a reasonable opportunity to repair the constructionaldefect or cause the defect to be repaired if an election to repair is madepursuant to NRS 40.6472.

2. If a claimant commences an action without complyingwith subsection 1 or NRS 40.645, thecourt shall:

(a) Dismiss the action without prejudice and compel theclaimant to comply with those provisions before filing another action; or

(b) If dismissal of the action would prevent theclaimant from filing another action because the action would be procedurallybarred by the statute of limitations or statute of repose, the court shall staythe proceeding pending compliance with those provisions by the claimant.

(Added to NRS by 2003, 2039)

NRS 40.6472 Responseto notice of defect: Time for sending; content; effect of election to repair ornot to repair.

1. Except as otherwise provided in NRS 40.670 and 40.672 and NRS 40.6452, a written response must besent by certified mail, return receipt requested, to a claimant who givesnotice of a constructional defect pursuant to NRS40.645:

(a) By the contractor not later than 90 days after thecontractor receives the notice; and

(b) If notice was sent to a subcontractor, supplier ordesign professional, by the subcontractor, supplier or design professional notlater than 90 days after the date that the subcontractor, supplier or designprofessional receives the notice.

2. The written response sent pursuant to subsection 1must respond to each constructional defect in the notice and:

(a) Must state whether the contractor, subcontractor,supplier or design professional has elected to repair the defect or cause thedefect to be repaired. If an election to repair is included in the response andthe repair will cause the claimant to move from his home during the repair, theelection must also include monetary compensation in an amount reasonablynecessary for temporary housing or for storage of household items, or for both,if necessary.

(b) May include a proposal for monetary compensation,which may include contribution from a subcontractor, supplier or designprofessional.

(c) May disclaim liability for the constructionaldefect and state the reasons for such a disclaimer.

3. If the claimant is a homeowners association, theassociation shall send a copy of the response to each member of the associationnot later than 30 days after receiving the response.

4. If the contractor, subcontractor, supplier ordesign professional has elected not to repair the constructional defect, theclaimant or contractor may bring a cause of action for the constructionaldefect or amend a complaint to add a cause of action for the constructionaldefect.

5. If the contractor, subcontractor, supplier ordesign professional has elected to repair the constructional defect, theclaimant must provide the contractor, subcontractor, supplier or designprofessional with a reasonable opportunity to repair the constructional defect.

(Added to NRS by 2003, 2037)

NRS 40.648 Electionto repair defect: Who may repair; manner for performing repairs; deadline forrepair; extension of deadline; written statement of repairs performed.

1. If the response provided pursuant to NRS 40.6472 includes an election to repairthe constructional defect:

(a) The repairs may be performed by the contractor,subcontractor, supplier or design professional, if he is properly licensed,bonded and insured to perform the repairs and, if he is not, the repairs may beperformed by another person who meets those qualifications.

(b) The repairs must be performed:

(1) On reasonable dates and at reasonable times agreedto in advance with the claimant;

(2) In compliance with any applicable buildingcode and in a good and workmanlike manner in accordance with the generallyaccepted standard of care in the industry for that type of repair; and

(3) In a manner which will not increase the costof maintaining the residence or appurtenance than otherwise would have beenrequired if the residence or appurtenance had been constructed without theconstructional defect, unless the contractor and the claimant agree in writingthat the contractor will compensate the claimant for the increased costincurred as a result of the repair.

(c) Any part of the residence or appurtenance that isnot defective but which must be removed to correct the constructional defectmust be replaced.

(d) The contractor, subcontractor, supplier or designprofessional shall prevent, remove and indemnify the claimant against anymechanics liens and materialmens liens.

2. Unless the claimant and the contractor,subcontractor, supplier or design professional agree to extend the time forrepairs, the repairs must be completed:

(a) If the notice was sent pursuant to subsection 4 of NRS 40.645 and there are four or fewerowners named in the notice, for the named owners, not later than 105 days afterthe date on which the contractor received the notice.

(b) If the notice was sent pursuant to subsection 4 of NRS 40.645 and there are five or moreowners named in the notice, for the named owners, not later than 150 days afterthe date on which the contractor received the notice.

(c) If the notice was sent pursuant to subsection 4 of NRS 40.645, not later than 105 days afterthe date on which the contractor provides a disclosure of the notice to theunnamed owners to whom the notice applies pursuant to NRS 40.6452.

(d) If the notice was not sent pursuant to subsection 4of NRS 40.645:

(1) Not later than 105 days after the date onwhich the notice of the constructional defect was received by the contractor,subcontractor, supplier or design professional if the notice of aconstructional defect was received from four or fewer owners; or

(2) Not later than 150 days after the date onwhich the notice of the constructional defect was received by the contractor,subcontractor, supplier or design professional if the notice was received fromfive or more owners or from a representative of a homeowners association.

3. If repairs reasonably cannot be completed withinthe time set forth in subsection 2, the claimant and the contractor,subcontractor, supplier or design professional shall agree to a reasonable timewithin which to complete the repair. If the claimant and contractor,subcontractor, supplier or design professional cannot agree on such a time, anyof them may petition the court to establish a reasonable time for completingthe repair.

4. Any election to repair made pursuant to NRS 40.6472 may not be made conditionalupon a release of liability.

5. Not later than 30 days after the repairs arecompleted, the contractor, subcontractor, supplier or design professional whorepaired or caused the repair of a constructional defect shall provide theclaimant with a written statement describing the nature and extent of therepair, the method used to repair the constructional defect and the extent ofany materials or parts that were replaced during the repair.

(Added to NRS by 2003, 2037)

NRS 40.649 Noticeof defect may be presented to insurer; duties of insurer.

1. If a contractor, subcontractor, supplier or designprofessional receives written notice of a constructional defect, thecontractor, subcontractor, supplier or design professional may present theclaim to an insurer which has issued a policy of insurance that covers all orany portion of the business of the contractor, subcontractor, supplier ordesign professional.

2. If the contractor, subcontractor, supplier ordesign professional presents the claim to the insurer pursuant to this section,the insurer:

(a) Must treat the claim as if a civil action has beenbrought against the contractor, subcontractor, supplier or design professional;and

(b) Must provide coverage to the extent available underthe policy of insurance as if a civil action has been brought against thecontractor, subcontractor, supplier or design professional.

3. A contractor, subcontractor, supplier or designprofessional is not required to present a claim to the insurer pursuant to thissection, and the failure to present such a claim to the insurer does notrelieve the insurer of any duty under the policy of insurance to thecontractor, subcontractor, supplier or design professional.

(Added to NRS by 2003, 2040)

NRS 40.650 Effectof rejecting reasonable offer of settlement; effect of failing to take certainactions concerning defect; effect of coverage available under homeownerswarranty.

1. If a claimant unreasonably rejects a reasonablewritten offer of settlement made as part of a response pursuant to paragraph(b) of subsection 2 of NRS 40.6472 andthereafter commences an action governed by NRS40.600 to 40.695, inclusive, thecourt in which the action is commenced may:

(a) Deny the claimants attorneys fees and costs; and

(b) Award attorneys fees and costs to the contractor.

Any sums paidunder a homeowners warranty, other than sums paid in satisfaction of claimsthat are collateral to any coverage issued to or by the contractor, must bededucted from any recovery.

2. If a contractor, subcontractor, supplier or designprofessional fails to:

(a) Comply with the provisions of NRS 40.6472;

(b) Make an offer of settlement;

(c) Make a good faith response to the claim assertingno liability;

(d) Agree to a mediator or accept the appointment of amediator pursuant to NRS 40.680; or

(e) Participate in mediation,

thelimitations on damages and defenses to liability provided in NRS 40.600 to 40.695, inclusive, do not apply and theclaimant may commence an action or amend a complaint to add a cause of actionfor a constructional defect without satisfying any other requirement of NRS 40.600 to 40.695, inclusive.

3. If a residence or appurtenance that is the subjectof the claim is covered by a homeowners warranty that is purchased by or onbehalf of a claimant pursuant to NRS690B.100 to 690B.180, inclusive, aclaimant shall diligently pursue a claim under the contract. If coverage undera homeowners warranty is denied by an insurer in bad faith, the homeowner andthe contractor, subcontractor, supplier or design professional have a right ofaction for the sums that would have been paid if coverage had been provided,plus reasonable attorneys fees and costs.

4. Nothing in this section prohibits an offer ofjudgment pursuant to Rule 68 of the Nevada Rules of Civil Procedure or NRS 17.115 if the offer of judgmentincludes all damages to which the claimant is entitled pursuant to NRS 40.655.

(Added to NRS by 1995, 2541; A 1997, 2719; 1999, 1442; 2003, 2044)

NRS 40.655 Limitationon recovery.

1. Except as otherwise provided in NRS 40.650, in a claim governed by NRS 40.600 to 40.695, inclusive, the claimant may recoveronly the following damages to the extent proximately caused by a constructionaldefect:

(a) Any reasonable attorneys fees;

(b) The reasonable cost of any repairs already madethat were necessary and of any repairs yet to be made that are necessary tocure any constructional defect that the contractor failed to cure and thereasonable expenses of temporary housing reasonably necessary during therepair;

(c) The reduction in market value of the residence oraccessory structure, if any, to the extent the reduction is because ofstructural failure;

(d) The loss of the use of all or any part of theresidence;

(e) The reasonable value of any other property damagedby the constructional defect;

(f) Any additional costs reasonably incurred by theclaimant, including, but not limited to, any costs and fees incurred for theretention of experts to:

(1) Ascertain the nature and extent of theconstructional defects;

(2) Evaluate appropriate corrective measures toestimate the value of loss of use; and

(3) Estimate the value of loss of use, the costof temporary housing and the reduction of market value of the residence; and

(g) Any interest provided by statute.

2. The amount of any attorneys fees awarded pursuantto this section must be approved by the court.

3. If a contractor complies with the provisions of NRS 40.600 to 40.695, inclusive, the claimant may notrecover from the contractor, as a result of the constructional defect, anythingother than that which is provided pursuant to NRS40.600 to 40.695, inclusive.

4. Thissection must not be construed as impairing any contractual rights between acontractor and a subcontractor, supplier or design professional.

5. As used in this section, structural failure meansphysical damage to the load-bearing portion of a residence or appurtenancecaused by a failure of the load-bearing portion of the residence orappurtenance.

(Added to NRS by 1995, 2541; A 1997, 2720; 2003, 2045)

NRS 40.660 Nonacceptanceof offer of settlement deemed rejection. Anoffer of settlement made pursuant to paragraph (b) of subsection 2 of NRS 40.6472 that is not accepted within 35days after the offer is received by the claimant is considered rejected if theoffer contains a clear and understandable statement notifying the claimant ofthe consequences of his failure to respond or otherwise accept or reject theoffer of settlement. An affidavit certifying rejection of an offer ofsettlement under this section may be filed with the court.

(Added to NRS by 1995, 2542; A 1999, 1442; 2003, 2045)

NRS 40.665 Settlementby repurchase; certain offers of settlement deemed reasonable. In addition to any other method provided for settling aclaim pursuant to NRS 40.600 to 40.695, inclusive, a contractor may,pursuant to a written agreement entered into with a claimant, settle a claim byrepurchasing the claimants residence and the real property upon which it islocated. The agreement may include provisions which reimburse the claimant for:

1. The market value of the residence as if noconstructional defect existed, except that if a residence is less than 2 yearsof age and was purchased from the contractor against whom the claim is brought,the market value is the price at which the residence was sold to the claimant;

2. The value of any improvements made to the propertyby a person other than the contractor;

3. Reasonable attorneys fees and fees for experts;and

4. Any costs, including costs and expenses for movingand costs, points and fees for loans.

Any offer ofsettlement made that includes the items listed in this section shall be deemedreasonable for the purposes of subsection 1 of NRS 40.650.

(Added to NRS by 1995, 2542; A 1997, 2721; 2003, 2046)

NRS 40.667 Effectof written waiver or settlement agreement when contractor fails to correct orrepair defect properly; conditions to bringing action; effect of failure toprevail in action.

1. Except as otherwise provided in subsection 2, awritten waiver or settlement agreement executed by a claimant after acontractor has corrected or otherwise repaired a constructional defect does notbar a claim for the constructional defect if it is determined that thecontractor failed to correct or repair the defect properly.

2. The provisions of subsection 1 do not apply to anywritten waiver or settlement agreement described in subsection 1, unless:

(a) The claimant has obtained the opinion of an expertconcerning the constructional defect;

(b) The claimant has provided the contractor with awritten notice of the defect pursuant to NRS40.645 and a copy of the experts opinion; and

(c) The claimant and the contractor have complied withthe requirements for inspection and repair as provided in NRS 40.600 to 40.695, inclusive.

3. The provisions of this section do not apply torepairs which are made pursuant to an election to repair pursuant to NRS 40.6472.

4. If a claimant does not prevail in any action whichis not barred pursuant to this section, the court may:

(a) Deny the claimants attorneys fees, fees for anexpert witness or costs; and

(b) Award attorneys fees and costs to the contractor.

(Added to NRS by 1995, 2544; A 1997, 2723; 1999, 1442; 2003, 2046)

NRS 40.668 Actionagainst subdivider or master developer for defect in appurtenance in plannedunit development: Conditions and limitations; tolling of statutes of limitationor repose; applicability.

1. Notwithstanding the provisions of NRS 40.600 to 40.695, inclusive, a claimant may notcommence an action against a subdivider or master developer for a constructionaldefect in an appurtenance constructed on behalf of the subdivider or masterdeveloper in a planned unit development, to the extent that the appurtenancewas constructed by or through a licensed general contractor, unless:

(a) The subdivider or master developer fails to provideto the claimant the name, address and telephone number of each contractor hiredby the subdivider or master developer to construct the appurtenance within 30days of the receipt by the subdivider or master developer of a request from theclaimant for such information; or

(b) After the claimant has made a good faith effort toobtain full recovery from the contractors hired by the subdivider or masterdeveloper to construct the appurtenance, the claimant has not obtained a fullrecovery.

2. All statutes of limitation or repose applicable toa claim governed by this section are tolled from the time the claimant notifiesa contractor hired by the subdivider or master developer of the claim until theearlier of the date:

(a) A court determines that the claimant cannot obtaina full recovery against those contractors; or

(b) The claimant receives notice that those contractorsare bankrupt, insolvent or dissolved.

Tollingpursuant to this subsection applies only to the subdivider or master developer.Notwithstanding any applicable statute of limitation or repose, the claimantmay commence an action against the subdivider or master developer for the claimwithin 1 year after the end of the tolling described in this subsection.

3. Nothing in this section prohibits the commencementof an action against a subdivider or master developer for a constructionaldefect in a residence sold, designed or constructed by or on behalf of thesubdivider or master developer.

4. Nothing in this section prohibits a person otherthan the claimant from commencing an action against a subdivider or masterdeveloper to enforce his own rights.

5. The provisions of this section do not apply to asubdivider or master developer who acts as a general contractor or uses hislicense as a general contractor in the course of constructing the appurtenancethat is the subject of the action.

6. As used in this section:

(a) Master developer means a person who buys, sellsor develops a planned unit development, including, without limitation, a personwho enters into a development agreement pursuant to NRS 278.0201.

(b) Planned unit development has the meaning ascribedto it in NRS 278A.065.

(c) Subdivider has the meaning ascribed to it in NRS 278.0185.

(Added to NRS by 1999, 1438)

Repairs

NRS 40.670 Defectwhich creates imminent threat to health or safety: Duty to cure; effect offailure to cure; exceptions.

1. A contractor, subcontractor, supplier or designprofessional who receives written notice of a constructional defect resultingfrom work performed by the contractor, subcontractor, supplier or designprofessional which creates an imminent threat to the health or safety of theinhabitants of the residence shall take reasonable steps to cure the defect assoon as practicable. The contractor, subcontractor, supplier or design professionalshall not cure the defect by making any repairs for which he is not licensed orby causing any repairs to be made by a person who is not licensed to make thoserepairs. If the contractor, subcontractor, supplier or design professionalfails to cure the defect in a reasonable time, the owner of the residence mayhave the defect cured and may recover from the contractor, subcontractor,supplier or design professional the reasonable cost of the repairs plusreasonable attorneys fees and costs in addition to any other damagesrecoverable under any other law.

2. A contractor, subcontractor, supplier or designprofessional who does not cure a defect pursuant to this section because he hasdetermined, in good faith and after a reasonable inspection, that there is notan imminent threat to the health or safety of the inhabitants is not liable forattorneys fees and costs pursuant to this section, except that if a buildinginspector, building official or other similar authority employed by agovernmental body with jurisdiction certifies that there is an imminent threatto the health and safety of the inhabitants of the residence, the contractor,subcontractor, supplier or design professional is subject to the provisions ofsubsection 1.

(Added to NRS by 1995, 2542; A 1997, 2721; 2001, 1249; 2003, 2046)

NRS 40.672 Defectin new residence: Duty to repair; deadline for repair; extensions; disciplinaryaction for failure to comply. Except asotherwise provided in NRS 40.670, if acontractor, subcontractor, supplier or design professional receives writtennotice of a constructional defect not more than 1 year after the close ofescrow of the initial purchase of the residence, the contractor, subcontractor,supplier or design professional shall make the repairs within 45 days afterreceiving the written notice unless completion is delayed by the claimant or byother events beyond the control of the contractor, subcontractor, supplier ordesign professional, or timely completion of repairs is not reasonablypossible. The contractor, subcontractor, supplier or design professional andclaimant may agree in writing to extend the period prescribed by this section.If a contractor or subcontractor fails to comply with this section, he isimmediately subject to discipline pursuant to NRS624.300.

(Added to NRS by 1999, 1437; A 2003, 2047)

NRS 40.675 Inspectionof repairs.

1. A contractor who makes or provides for repairsunder NRS 40.600 to 40.695, inclusive, may take reasonablesteps to prove that the repairs were made and to have them inspected.

2. The provisions of NRS40.600 to 40.695, inclusive,regarding inspection and repair are in addition to any rights of inspection andsettlement provided by common law or by another statute.

(Added to NRS by 1995, 2542)

Special Procedures

NRS 40.680 Mediationof certain claims required before action commenced or complaint amended;procedure; appointment of special master; effect of failure to mediate in goodfaith.

1. Except as otherwise provided in this chapter,before a claimant commences an action or amends a complaint to add a cause ofaction for a constructional defect against a contractor, subcontractor,supplier or design professional, the matter must be submitted to mediation,unless mediation is waived in writing by the contractor, subcontractor, supplieror design professional and the claimant.

2. The claimant and each party alleged to have causedthe constructional defect must select a mediator by agreement. If the claimantand the other parties fail to agree upon a mediator within 20 days after a mediatoris first selected by the claimant, any party may petition the AmericanArbitration Association, the Nevada Arbitration Association, Nevada DisputeResolution Services or any other mediation service acceptable to the partiesfor the appointment of a mediator. A mediator so appointed may discover onlythose documents or records which are necessary to conduct the mediation. Themediator shall convene the mediation within 30 days after the matter issubmitted to him and shall complete the mediation within 45 days after thematter is submitted to him, unless the parties agree to extend the time.

3. Before the mediation begins:

(a) The claimant shall deposit $50 with the mediationservice; and

(b) Each other party shall deposit with the mediationservice, in equal shares, the remaining amount estimated by the mediationservice as necessary to pay the fees and expenses of the mediator for the firstsession of mediation and shall deposit additional amounts demanded by themediation service as incurred for that purpose.

4. Unless otherwise agreed, the total fees for eachday of mediation and the mediator must not exceed $750 per day.

5. If the parties do not reach an agreement concerningthe matter during mediation or if any party who is alleged to have caused theconstructional defect fails to pay the required fees and appear, the claimantmay commence an action or amend a complaint to add a cause of action for theconstructional defect in court and:

(a) The reasonable costs and fees of the mediation arerecoverable by the prevailing party as costs of the action.

(b) Any party may petition the court in which theaction is commenced for the appointment of a special master.

6. A special master appointed pursuant to subsection 5may:

(a) Review all pleadings, papers or documents filedwith the court concerning the action.

(b) Coordinate the discovery of any books, records,papers or other documents by the parties, including the disclosure of witnessesand the taking of the deposition of any party.

(c) Order any inspections on the site of the propertyby a party and any consultants or experts of a party.

(d) Order settlement conferences and attendance atthose conferences by any representative of the insurer of a party.

(e) Require any attorney representing a party toprovide statements of legal and factual issues concerning the action.

(f) Refer to the judge who appointed him or to thepresiding judge of the court in which the action is commenced any matterrequiring assistance from the court.

The specialmaster shall not, unless otherwise agreed by the parties, personally conductany settlement conferences or engage in any ex parte meetings regarding theaction.

7. Upon application by a party to the court in whichthe action is commenced, any decision or other action taken by a special masterappointed pursuant to this section may be appealed to the court for a decision.

8. A report issued by a mediator or special masterthat indicates that a party has failed to appear before him or to mediate in goodfaith is admissible in the action, but a statement or admission made by a partyin the course of mediation is not admissible.

(Added to NRS by 1995, 2543; A 1997, 2721; 2003, 2047)

NRS 40.681 Premediationdiscovery. Not later than 15 days before thecommencement of mediation required pursuant to NRS 40.680 and upon providing 15 daysnotice, each party shall provide to the other party, or shall make a reasonableeffort to assist the other party to obtain, all relevant reports, photos,correspondence, plans, specifications, warranties, contracts, subcontracts,work orders for repair, videotapes, technical reports, soil and otherengineering reports and other documents or materials relating to the claim thatare not privileged.

(Added to NRS by 2003, 2041)

NRS 40.684 Dutiesof insurer with respect to settlement conference.

1. If a settlement conference is held concerning aclaim for a constructional defect, the special master, if any, or the judgepresiding over the claim may order a representative of an insurer of a party toattend the settlement conference. If a representative of an insurer is orderedto attend the settlement conference, the insurer shall ensure that therepresentative is authorized, on behalf of the insurer, to:

(a) Bind the insurer to any settlement agreementrelating to the claim;

(b) Enter into any agreement relating to coverage thatmay be available under the partys policy of insurance which is required tocarry out any settlement relating to the claim; and

(c) Commit for expenditure money or other assetsavailable under the partys policy of insurance.

2. If a representative of an insurer who is ordered toattend a settlement conference pursuant to subsection 1 fails to attend thesettlement conference or attends but is substantially unprepared toparticipate, or fails to participate in good faith, the special master or thejudge may, on his own motion or that of a party, issue any order with regardthereto that is just under the circumstances.

3. In lieu of or in addition to any other sanction,the special master or the judge may require the insurer to pay any reasonableexpenses or attorneys fees incurred by a party because of the failure of theinsurer or its representative to comply with the provisions of this section orany order issued pursuant to this section, unless the special master or thejudge finds that the failure to comply was substantially justified or that anyother circumstances make the award of such expenses or fees unjust.

4. Any insurer which conducts business in this Stateand which insures a party against liability for the claim shall be deemed tohave consented to the jurisdiction of the special master or the judge for thepurposes of this section.

5. The authority conferred upon the special master orthe judge pursuant to this section is in addition to any other authorityconferred upon the special master or the judge pursuant to any other statute orany court rule.

(Added to NRS by 2003, 2040)

Disclosures

NRS 40.687 Disclosureof information concerning warranties after action is commenced; disclosure ofinformation concerning insurance agreements; compelled production ofinformation. Notwithstanding any otherprovision of law:

1. A claimant shall, within 10 days aftercommencing an action against a contractor, disclose to the contractor allinformation about any homeowners warranty that is applicable to the claim.

2. The contractor shall, no later than 10 days after aresponse is made pursuant to this chapter, disclose to the claimant anyinformation about insurance agreements that may be obtained by discoverypursuant to rule 26(b)(2) of the Nevada Rules of Civil Procedure. Suchdisclosure does not affect the admissibility at trial of the informationdisclosed.

3. Except as otherwise provided in subsection 4, ifeither party fails to provide the information required pursuant to subsection 1or 2 within the time allowed, the other party may petition the court to compelproduction of the information. Upon receiving such a petition, the court mayorder the party to produce the required information and may award thepetitioning party reasonable attorneys fees and costs incurred in petitioningthe court pursuant to this subsection.

4. The parties may agree to an extension of time toproduce the information required pursuant to this section.

5. For the purposes of this section, informationabout insurance agreements is limited to any declaration sheets, endorsementsand contracts of insurance issued to the contractor from the commencement ofconstruction of the residence of the claimant to the date on which the requestfor the information is made and does not include information concerning anydisputes between the contractor and an insurer or information concerning anyreservation of rights by an insurer.

(Added to NRS by 1997, 2716; A 1999, 1443)

NRS 40.688 Disclosure of defects by claimant toprospective purchaser of residence required; timing and contents of disclosure;duty of attorney to inform claimant of disclosure requirement.

1. If a claimant attempts to sell a residence that isor has been the subject of a claim governed by NRS 40.600 to 40.695, inclusive, he shall disclose, inwriting, to any prospective purchaser of the residence, not less than 30 daysbefore the close of escrow for the sale of the residence or, if escrow is toclose less than 30 days after the execution of the sales agreement, thenimmediately upon the execution of the sales agreement or, if a claim isinitiated less than 30 days before the close of escrow, within 24 hours aftergiving written notice to the contractor pursuant to NRS 40.645:

(a) All notices given by the claimant to the contractorpursuant to NRS 40.600 to 40.695, inclusive, that are related to theresidence;

(b) All opinions the claimant has obtained from expertsregarding a constructional defect that is or has been the subject of the claim;

(c) The terms of any settlement, order or judgmentrelating to the claim; and

(d) A detailed report of all repairs made to theresidence by or on behalf of the claimant as a result of a constructionaldefect that is or has been the subject of the claim.

2. Before taking any action on a claim pursuant to NRS 40.600 to 40.695, inclusive, the attorney for aclaimant shall notify the claimant in writing of the provisions of thissection.

(Added to NRS by 1999, 1439; A 2003, 2048)

Additional Requirement for Actions Against DesignProfessionals

NRS 40.6882 Complainantdefined. As used in NRS 40.6884 and 40.6885, unless the context otherwiserequires, complainant means a person who makes a claim or files an actionagainst a design professional pursuant to NRS40.600 to 40.695, inclusive.

(Added to NRS by 2001 Special Session,66; A 2003, 2049)

NRS 40.6884 Attorneyrequired to consult expert; required affidavit of attorney; required report ofexpert.

1. Except as otherwise provided in subsection 2, in anaction governed by NRS 40.600 to 40.695, inclusive, that is commencedagainst a design professional or a person primarily engaged in the practice ofprofessional engineering, land surveying, architecture or landscapearchitecture, including, without limitation, an action for professionalnegligence, the attorney for the complainant shall file an affidavit with thecourt concurrently with the service of the first pleading in the action statingthat the attorney:

(a) Has reviewed the facts of the case;

(b) Has consulted with an expert;

(c) Reasonably believes the expert who was consulted isknowledgeable in the relevant discipline involved in the action; and

(d) Has concluded on the basis of his review and theconsultation with the expert that the action has a reasonable basis in law andfact.

2. The attorney for the complainant may file theaffidavit required pursuant to subsection 1 at a later time if he could notconsult with an expert and prepare the affidavit before filing the actionwithout causing the action to be impaired or barred by the statute oflimitations or repose, or other limitations prescribed by law. If the attorneymust submit the affidavit late, he shall file an affidavit concurrently withthe service of the first pleading in the action stating his reason for failingto comply with subsection 1 and the attorney shall consult with an expert andfile the affidavit required pursuant to subsection 1 not later than 45 daysafter filing the action.

3. In addition to the statement included in theaffidavit pursuant to subsection 1, a report must be attached to the affidavit.Except as otherwise provided in subsection 4, the report must be prepared bythe expert consulted by the attorney and include, without limitation:

(a) The resume of the expert;

(b) A statement that the expert is experienced in eachdiscipline which is the subject of the report;

(c) A copy of each nonprivileged document reviewed bythe expert in preparing his report, including, without limitation, each record,report and related document that the expert has determined is relevant to theallegations of negligent conduct that are the basis for the action;

(d) The conclusions of the expert and the basis for theconclusions; and

(e) A statement that the expert has concluded thatthere is a reasonable basis for filing the action.

4. In an action brought by a claimant in which anaffidavit is required to be filed pursuant to subsection 1:

(a) The report required pursuant to subsection 3 is notrequired to include the information set forth in paragraphs (c) and (d) ofsubsection 3 if the claimant or his attorney files an affidavit, at the timethat the affidavit is filed pursuant to subsection 1, stating that he madereasonable efforts to obtain the nonprivileged documents described in paragraph(c) of subsection 3, but was unable to obtain such documents before filing theaction;

(b) The claimant or his attorney shall amend the reportrequired pursuant to subsection 3 to include any documents and informationrequired pursuant to paragraph (c) or (d) of subsection 3 as soon as reasonablypracticable after receiving the document or information; and

(c) The court may dismiss the action if the claimantand his attorney fail to comply with the requirements of paragraph (b).

5. An expert consulted by an attorney to prepare anaffidavit pursuant to this section must not be a party to the action.

6. As used in this section, expert means aperson who is licensed in a state to engage in the practice of professionalengineering, land surveying, architecture or landscape architecture.

(Added to NRS by 2001 Special Session,66)

NRS 40.6885 Effectof compliance with or failure to comply with NRS 40.6884.

1. The court shall dismiss an action governed by NRS 40.600 to 40.695, inclusive, that is commencedagainst a design professional or a person primarily engaged in the practice ofprofessional engineering, land surveying, architecture or landscapearchitecture, including, without limitation, an action for professionalnegligence, if the attorney for the complainant fails to:

(a) File an affidavit required pursuant to NRS 40.6884;

(b) File a report required pursuant to subsection 3 of NRS 40.6884; or

(c) Name the expert consulted in the affidavit requiredpursuant to subsection 1 of NRS 40.6884.

2. The fact that an attorney for a complainant hascomplied or failed to comply with the provisions of NRS 40.6884 is admissible in the action.

(Added to NRS by 2001 Special Session,67)

Miscellaneous Provisions

NRS 40.6887 Submissionof questions or disputes concerning defects to State Contractors Board;regulations.

1. A claimant or any contractor, subcontractor,supplier or design professional may submit a question or dispute to the StateContractors Board concerning any matter which may affect or relate to aconstructional defect, including, without limitation, questions concerning theneed for repairs, the appropriate method for repairs, the sufficiency of anyrepairs that have been made and the respective rights and responsibilities ofhomeowners, claimants, contractors, subcontractors, suppliers and designprofessionals.

2. If a question or dispute is submitted to the StateContractors Board pursuant to this section, the State Contractors Board shall,pursuant to its regulations, rules and procedures, respond to the question orinvestigate the dispute and render a decision. Nothing in this sectionauthorizes the State Contractors Board to require the owner of a residence orappurtenance to participate in any administrative hearing which is heldpursuant to this section.

3. Not later than 30 days after a question or disputeis submitted to the State Contractors Board pursuant to subsection 1, theState Contractors Board shall respond to the question or render its decision.The response or decision of the State Contractors Board:

(a) Is not binding and is not subject to judicialreview pursuant to the provisions of chapters233B and 624 of NRS; and

(b) Is not admissible in any judicial or administrativeproceeding brought pursuant to the provisions of this chapter.

4. The provisions of this chapter do not preclude aclaimant or a contractor, subcontractor, supplier or design professional frompursuing any remedy otherwise available from the State Contractors Boardpursuant to the provisions of chapter 624 ofNRS concerning a constructional defect.

5. If an action for a constructional defect has beencommenced, the court shall not stay or delay any proceedings before the courtpending an answer to a question or decision concerning a dispute submitted tothe State Contractors Board.

6. The State Contractors Board shall adoptregulations necessary to carry out the provisions of this section and maycharge and collect reasonable fees from licensees to cover the cost of carryingout its duties pursuant to this section.

(Added to NRS by 2003, 2039; A 2005, 477)

NRS 40.689 Preferencegiven to action; action may be assigned to senior judge; assessment ofadditional expenses.

1. Upon petition by a party:

(a) The court shall give preference in setting a datefor the trial of an action commenced pursuant to NRS 40.600 to 40.695, inclusive; and

(b) The court may assign an action commenced pursuantto NRS 40.600 to 40.695, inclusive, to a senior judge.

2. If the action is assigned to a senior judge uponpetition by a party:

(a) Any additional expenses caused by the assignmentmust be borne equally by each party involved; or

(b) The judge may distribute any additional expensesamong the parties as he deems appropriate.

(Added to NRS by 1997, 2716)

NRS 40.690 Limitationon bringing claim against governmental entity during period for resolution; effectof settlement; contractor or claimant may require party to appear andparticipate.

1. A claim governedby NRS 40.600 to 40.695, inclusive, may not be brought by a claimant or contractor against agovernment, governmental agency or political subdivision of a government,during the period in which a claim for a constructional defect is beingsettled, mediated or otherwise resolved pursuant to NRS 40.600 to 40.695, inclusive. The settlement of such aclaim does not affect the rights or obligations of the claimant or contractorin any action brought by the claimant or contractor against a third party.

2. A contractor or claimant may require a partyagainst whom the contractor or claimant asserts a claim governed by NRS 40.600 to 40.695, inclusive, to appear andparticipate in proceedings held pursuant to those sections as if the party werea contractor and the party requiring him to appear were a claimant. The partymust receive notice of the proceedings from the contractor or claimant.

(Added to NRS by 1995, 2544; A 1997, 2723; 1999, 1443)

NRS 40.692 Noticenot required to be given to intervener in action. Aclaimant who commences an action for a constructional defect is not required togive written notice of a defect pursuant to NRS40.645 to any person who intervenes in the action as a party after it iscommenced. If such a person becomes a party to the action:

1. For the purposes of NRS 40.645, the person shall be deemed tohave been given notice of the defect by the claimant on the date on which theperson becomes a party to the action; and

2. The provisions of NRS40.600 to 40.695, inclusive, applyto the person after that date.

(Added to NRS by 1999, 1438; A 2003, 2049)

NRS 40.695 Tollingof statutes of limitation or repose; applicability.

1. Except as otherwise provided in subsection 2,statutes of limitation or repose applicable to a claim based on a constructionaldefect governed by NRS 40.600 to 40.695, inclusive, are tolled from the timenotice of the claim is given, until 30 days after mediation is concluded orwaived in writing pursuant to NRS 40.680.

2. Tolling under this section applies to a third partyregardless of whether the party is required to appear in the proceeding.

(Added to NRS by 1995, 2544; A 1997, 2723; 1999, 1444; 2003, 2049)

MISCELLANEOUS PROVISIONS

NRS 40.750 Fraudagainst financial institution for purpose of obtaining loan secured by lien onreal property.

1. As used in this section, financial institutionmeans a bank, mortgage broker, mortgage banker, credit union, thrift company orsavings and loan association, or any subsidiary or affiliate of a bank,mortgage broker, mortgage banker, credit union, thrift company or savings andloan association, which is authorized to transact business in this State andwhich makes or acquires, in whole or in part, any loan of the kind described insubsection 2.

2. Except as otherwise provided in subsection 5, aperson who, for the purpose of obtaining a loan secured by a lien on realproperty, knowingly conceals a material fact, or makes a false statementconcerning a material fact knowing that the statement is false, is liable toany financial institution which relied upon the absence of that concealed factor on that false statement for any damages it sustains because of the fraud.

3. In addition to its actual damages, a financialinstitution may recover exemplary or punitive damages in an amount not toexceed 50 percent of the actual damages awarded.

4. The cause of action provided by this section:

(a) Is not, for the purposes of NRS 40.430, an action for the recovery ofany debt or an action for the enforcement of any right secured by mortgage orlien upon real estate.

(b) Is in addition to and not in substitution for anyright of foreclosure existing in favor of the financial institution. Anyrecovery pursuant to this section does not limit the amount of a judgmentawarded pursuant to NRS 40.459, but thefinancial institution is not entitled to recover actual damages more than oncefor the same loss.

5. The provisions of this section do not apply to anyloan which is secured by a lien on real property used for residential purposesif:

(a) The residence is a single-family dwelling occupiedby the person obtaining the loan, as represented by him in connection with hisapplication for the loan; and

(b) The loan is for the principal amount of $150,000 orless.

(Added to NRS by 1987, 1346; A 1999, 3802; 2003, 3570)

NRS 40.760 Summaryeviction of person using facility for storage as residence.

1. When a person is using a facility for storage as aresidence, the owner or his agent shall serve or have served a notice inwriting which directs the person to cease using the facility as a residence nolater than 24 hours after receiving the notice. The notice must advise theperson that:

(a) NRS 108.475requires the owner to ask the court to have the person evicted if he has notceased using the facility as a residence within 24 hours; and

(b) He may continue to use the facility to store hispersonal property in accordance with the rental agreement.

2. If the person does not cease using the facility asa residence within 24 hours after receiving the notice to do so, the owner ofthe facility or his agent shall apply by affidavit for summary eviction to thejustice of the peace of the township wherein the facility is located. Theaffidavit must contain:

(a) The date the rental agreement became effective.

(b) A statement that the person is using the facilityas a residence.

(c) The date and time the person was served withwritten notice to cease using the facility as a residence.

(d) A statement that the person has not ceased usingthe facility as a residence within 24 hours after receiving the notice.

3. Upon receipt of such an affidavit the justice ofthe peace shall issue an order directing the sheriff or constable of the countyto remove the person within 24 hours after receipt of the order. The sheriff orconstable shall not remove the persons personal property from the facility.

4. For the purposes of this section, facility forstorage means real property divided into individual spaces which are rented orleased for storing personal property. The term does not include a garage orstorage area in a private residence.

(Added to NRS by 1989, 213)(Substituted in revisionfor NRS 40.555)

NRS 40.770 Limitationon liability of seller, sellers agent and buyers agent for failure todisclose certain facts concerning property.

1. Except as otherwise provided in subsection 6, inany sale, lease or rental of real property, the fact that the property is orhas been:

(a) The site of a homicide, suicide or death by anyother cause, except a death that results from a condition of the property;

(b) The site of any crime punishable as a felony otherthan a crime that involves the manufacturing of any material, compound, mixtureor preparation which contains any quantity of methamphetamine; or

(c) Occupied by a person exposed to the humanimmunodeficiency virus or suffering from acquired immune deficiency syndrome orany other disease that is not known to be transmitted through occupancy of theproperty,

is notmaterial to the transaction.

2. In any sale, lease or rental of real property, thefact that a sex offender, as defined in NRS179D.400, resides or is expected to reside in the community is not materialto the transaction, and the seller, lessor or landlord or any agent of theseller, lessor or landlord does not have a duty to disclose such a fact to abuyer, lessee or tenant or any agent of a buyer, lessee or tenant.

3. In any sale, lease or rental of real property, thefact that a facility for transitional living for released offenders that islicensed pursuant to chapter 449 of NRS islocated near the property being sold, leased or rented is not material to thetransaction.

4. A seller, lessor or landlord or any agent of theseller, lessor or landlord is not liable to the buyer, lessee or tenant in anyaction at law or in equity because of the failure to disclose any factdescribed in subsection 1, 2 or 3 that is not material to the transaction or ofwhich the seller, lessor or landlord or agent of the seller, lessor or landlordhad no actual knowledge.

5. Except as otherwise provided in an agreementbetween a buyer, lessee or tenant and his agent, an agent of the buyer, lesseeor tenant is not liable to the buyer, lessee or tenant in any action at law orin equity because of the failure to disclose any fact described in subsection1, 2 or 3 that is not material to the transaction or of which the agent of thebuyer, lessee or tenant had no actual knowledge.

6. For purposes of this section, the fact that theproperty is or has been the site of a crime that involves the manufacturing ofany material, compound, mixture or preparation which contains any quantity ofmethamphetamine is not material to the transaction if:

(a) All materials and substances involvingmethamphetamine have been removed from or remediated on the property by anentity certified or licensed to do so; or

(b) The property has been deemed safe for habitation bya governmental entity.

7. As used in this section, facility for transitionalliving for released offenders has the meaning ascribed to it in NRS 449.0055.

(Added to NRS by 1989, 629; A 1995, 845; 1997, 1674; 2003, 1338; 2005, 2353)

 


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