Q: Shortly after buying our home in 2004, our association passed a rental restriction amendment. I was opposed to such a restriction because of how it would affect financial decisions regarding the use of our home. The board did not handle the voting process in a democratic manner with a secret ballot.
At the time, I wrote to the ombudsman office, but after being told that secret ballots pertained only to elections, I did not take the necessary additional steps to make a formal grievance. I mistakenly thought that being on record was adequate. I am now also painfully aware of the statue of limitations after recordation of an amendment
The restriction passed with only the required (67 percent) voting yes. My question is regarding the required unanimous consent from unit owners. Does the unanimous consent have any relevancy in this case now? What about the mortgage lenders? Do they also have to give consent to the amendment?
We had to move out because of space limitations.
The board issued a Fine/Hearing Notice for Non-Compliance because a couple now lives in the home as caretakers for my mother. The neighbors probably assume that the couple is renting. The board should not fine me for non-compliance.
What are my options?
A: There was a Nevada case in 2002 which pertained to an amendment which prevented owners from renting their units.
The lease-restrictive amendment had passed with a vote in excess of the 67 percent approval per their governing documents. The covenants of that association stated " no amendment may change... the uses to which any unit is restricted... without the unanimous consent of all owners whose units are so affected." You would have to review the governing documents to see whether such a clause exists in the covenants. If it does exist, then the association would have to remove the amendment from their governing documents. The association could place the issue back on the ballots for the homeowners to vote again to either approve or reject.
The rental restriction is one of those material changes to the governing documents that would need approval from the mortgage lenders. You would have to review the section of the covenants to ascertain how the association obtains their votes. In addition, find out from the board or management company if and how they contacted the mortgage lenders and the results of the mortgage companies' votes.
If the people who are residing in the home are caretakers and the family member is still living in the home, then there may be a case where "reasonable accommodations" from the Fair Housing Laws would prevent the association from fining you. The U. S. Department of Housing and Urban Development should be contacted about any recourse as to disability regulations.
Finally, it is inappropriate, though not illegal, to show the votes, or bully homeowners as to their voting decisions in hopes of obtaining votes in the board's favor. As to the management company opening the ballots, the management company should have collected the ballots and all ballots should have been opened at the board meeting.
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 Association Q.&A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759, or she can be reached by e-mail at email@example.com.