Rulings on HOA legal issues forthcoming


Q: While searching for a state Supreme Court hearing regarding HOA super lien, I saw your article dated Jan. 25. I couldn’t agree more with you that the Legislature needs to pass a law that would require the lenders to escrow association assessments. Well written.

I have been following HOA super lien for some time. Have you published any article on the hearing in May?

On another note, the county charges transfer tax fees amounts as they wish. Sometimes it’s the sold value, sometimes it’s market value. Whichever is greater.

A: The Nevada Supreme Court has not only received written briefs but also heard oral arguments pertaining to the super nine month lien law and the extinguishing of the first lender’s loan by an association’s foreclosure of a home. We have been told to expect a decision from the court by the end of the year.

The transfer tax fee is a fee that is collected by the county when a home is sold. At one point in time, the county was collecting that tax based upon the association’s auction sale of a foreclosed home. If the association was owed $5,000 and if it was paid $5,000, the transfer tax fee was based on that value. Obviously, it did not take a rocket scientist to realize that the county was losing money: The home was worth more than $5,000 and in a more traditional sale transaction, the county would have collected a higher tax. A decision was made to begin to value the foreclosed home, not based upon the association’s actual sales transaction but upon the market conditions.

That is an issue that could be challenged in a court of law. At this time, I am unaware of any association or buyer suing the county as to its interpretation and authorization of changing how the transfer tax should be collected by the county. Another case for the Nevada Supreme Court ? Who knows?

Q: My questions concern two situations. First, a homeowner has submitted a request that we (the Association) trim a pine tree that is planted in the common area and has extended over our perimeter wall into his backyard. Another homeowner has requested that we (the Association) repair damage to a vinyl fence that runs along his property line in his backyard and faces the common area (a park). Where both decisions will be setting a precedence for future requests from homeowners and the cost will total a significant amount, I felt this needed extensive research. My questions are:

1. Are we responsible for trimming the tree? If so, is the homeowner responsible for trees on his or her property that extends to our common areas?

2. Are we also responsible for the vinyl fence repair? Does that fall within the parameters of a shared wall?

3. If no action is taken by the Association in either case, are there liabilities?

These two items are on our next BOD meeting agenda. I want to ensure I am fully informed and prepared to respond.

A: As a “good neighbor,” the association, as well as any homeowner, is responsible for maintaining its own landscape. Consequently when the landscape intrudes upon another’s property, be it homeowner to homeowner, association to homeowner or homeowner to association, all need to trim the landscape.

As to the perimeter wall, the reader will need to review the governing documents. In some associations, the responsibility of maintaining the perimeter wall (both sides, the interior and exterior side) belongs to the homeowner, and in some cases, the association.

In 2009, the Legislature partially addressed that issue with the passage of NRS116.31073. With the exception pertaining to insurance claims, the association is responsible for the maintenance, repair, restoration and replacement of any security wall, which is within the association. The provision of that section of the law does not apply if the governing documents of the association provide that the unit owner or an entity other than the association is responsible for the security wall.

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, NV 89125. Fax is 702-385-3759, email is support@hlrealty.com.

 

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