Rockery Wall Litigation Letter

In the Attorney letter to Somersett Owners regarding the Rockery Wall litigation, the SOA Attorney stated:

“The Association could lose its rights to pursue the developer and/or third parties responsible for construction deficiencies as certain parties have suggested that the statutes of repose and statutes of limitations may lapse, or have already lapsed, which would preclude the Association from pursuing the developer and/or third parties. If these statutes lapse or have lapsed, without a suit being filed, the Association will have no recourse against any third parties for the construction defects in the Walls”

Not a very definitive statement on time limitations  –  especially given that the current Nevada Statute (NRS 11.202) establishes a time limitation for initiating a construction defect claim as no more than six years from substantial completion of the project. There appears to be some uncertainty on the part of the SOA Attorney as to what limitations may or may not apply, hence his statement of “may lapse, or have already lapsed“, which raises the following questions:

  • Does NRS 11.202 apply to the SOA claim, if so what is the established “substantial completion” date that would apply?
  • Is there some other Nevada statute of repose or limitation that would supersede NRS 11.202, as the six-year limitation has most likely already lapsed?

The Attorney letter also mentioned the Chapter 40 Notice of Claims delivered to the developer and related parties. Per NRS 40.6472, the developer has 90 days to provide a written response to the SOA Claim, which must then be provided to all Association members within 30 days of receipt. In this regard:

  • Has the SOA received such a response, will it be made available for review by Association members prior to the March 28th ballot submittal date?

The Attorney letter also stated, with reference to NRS 116.31088, “that the Association needs to make a good faith attempt to have a majority of the members of the association ratify such lawsuit within 90 days after the filing thereof”. Since the lawsuit filing date was December 29th, this is the presumed basis for the March 28th submittal date. However, not addressed was the following:

  • If the required number of ballots to either Ratify or Not Ratify pursuit of the lawsuit is not received by the March 28th date, what will be the recourse?

Hopefully the above questions will be addressed at the March 10th Information Meeting.