HOA violated state law with letter about owner

Q: I have submitted my nomination forms for a position on a homeowners association board. There are seven people running. Two are on the board and their terms are expiring.

When the ballots were sent out to the 1,704 homeowners, a libel statement against me was included with the mailing. Do you know if this is legal?

Two of the other six candidates have similar comments to me, but are not being signaled out with a letter.

A: Nevada Revised Statutes 116.31034 pertains to the nomination procedures. Subsection 8b states that the association shall distribute the disclosure statements that each candidate submits and are to be included with the ballot.

The association is not obligated to distribute any disclosure if information is believed to be defamatory, libelous or profane.

In an opinion statement from the Nevada Real Estate Division, an association is not to comment on any statement made by a candidate even if the association believes it to be a false statement.

The association violated the state law by submitting a written statement to the homeowners in response to the candidate’s comments in her disclosure statement.

The association’s comments clearly were meant to influence homeowners not to vote for this candidate. The association should have informed the candidate that it considered her statement to be defamatory or libelous and that the association would not distribute her statement.

After reading the candidate’s statement and that of the board’s response, I think there is a very fine and subjective line as to whether the candidate’s comments met the requirements of the statute of being defamatory and libelous.

That is a decision that the Nevada Real Estate Division should make. You should file a complaint with the division as the voting process may be invalid.

Q: I am clear on all of the new state requirements, but there is one that confounds me. My question is two part.

1) We send out “courtesy” letters, that are only a notice of an issue and something that we do as a before the noncompliance process. Must we include photos and specify ways of correcting the issue in that letter?

2) Our HOA board conducts monthly lighting inspections, as it is required that owners have a dusk-till-dawn lamp in their front yard.

Taking photos of lighting at night is nearly impossible. While taking a picture can be done if the owners have additional lighting, when they do not, it cannot be done.

How do we comply with the new procedure to include a photo when it comes to night lighting?

A: The new law, which went into effect Wednesday, requires a photograph and an explanation as to how to correct the violation when an association sends a hearing/fine notice.

The law does not require a photograph when a courtesy letter.

As to nighttime photographs, try a few pictures of a dark house and see if you have a viable photograph. Remember, the new law also states to take a photograph whenever possible. If you can’t take a viable nighttime photograph, you will not be in violation of the new law.

Q: Our HOA board has decided that we must post certain documents affecting all homeowners because it wants them to comment on them. But we do not have every homeowner’s email address. Can we just post it on the website, or should the documents be mailed to homeowners address of record?

A: If the documents affect all homeowners, your association should mail them to all of the homeowners. You can send the documents by mail and by email.

Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. Questions may be sent to the Association Q&A, P.O. Box 7440, Las Vegas, Nev., 89125. Fax is 702-385-3759, email is support@hlrealty.com.