September 13, 2020 - 11:25 am
Q: This letter concerns our “persistent resident” who only wants to cause havoc for anyone on the board. She berates people and minimizes their contributions and persistently criticizes anything done to better our property. Not only is she verbal, but she sends emails and letters to “her team of residents.” One of our board members is ready to quit just because of her.
My question is: Can we as a community, the board, sue or file a police grievance against her to ease her continuous harassment?”
I live in an age-restricted community with 160 units. Our “persistent resident” has lived here for many years 20-plus and has been president of the board.
This is a most unfortunate event that needs prompt attention. Thank you for your time and advice.
A: Nevada Revised Statute 116.31184 addresses threats, harassment and other conduct that is prohibited by this law. The law further clarifies as follows: The action causes harm or serious emotional distress or the reasonable apprehension thereof to that person or creates a hostile environment for that person. A person who violates this provision can be found guilty of a misdemeanor.
My suggestion to you is for the board to call for an executive session to discuss this matter with their attorney.
Q: I enjoy reading your articles and find them to be very informative. I am hoping you could help clear up some confusion regarding open meetings. On April 26, 2019, you answered a question regarding open meetings.
Here is the issue some residents are having with our homeowners association. Within the past year our HOA has hired and fired two management companies. What the board has done is get open bids from other companies and then has made a decision to fire the current company and hire one of the bidders. Again this has happened two times within the past year. Both times residents and the outgoing management companies were blindsided with the decision. There was no open discussion by the board or open comment period for residents before the board made their decision(s). In your 2019 column you discuss the opening of the bids, but do not mention the circumstances I’ve just described. So, is an HOA board required by law to notify residents they are considering replacing the current management company prior to doing so? If they are required to do so, does this fall under the open meeting act or another section of the NRS?
A: Association boards do not fall under the state’s open meeting law but do fall under NRS 116.31083. Action items, such as the termination of a contract and or the approval of a contract must be noticed on the board’s agenda. The homeowners have a right to know what topics will be discussed at the board meeting.
Q: I belong to a HOA in the Las Vegas area (3,000 homes) and our HOA is having issues with some rock walls. The board received reports from a firm that said the walls don’t meet state guidelines and are concerned they will need to be replaced. The HOA board started the lawsuit under NRS 116.31088 (e) and advised the HOA owners a vote was needed. The members voted and they did receive more yes votes then no; however, the vote did not meet “a majority of votes of the members of the association.” In this case 3,000 homes equals 1,501 votes that were needed per NRS 116.31088. Is this how you understand the law?
The HOA board communicated to the homeowners the yes vote carried. I believe the HOA board and attorney knew they did not meet NRS 116.31088 and knew something else was needed if they wanted to proceed. I’ve written letters asking them to explain, and it appears the attorney handling the case made some type of interpretation (the board believes it has complied with the law and followed our advice on the commencement and continuation of the lawsuit) of NRS and covenants, conditions and restrictions to continue the legal action without homeowner approval. Let me say, I have read the CC&Rs and there is nothing there that trumps NRS 116.31088. I had these questions for the HOA board:
1. Do you feel that vote of the homeowners per NRS 116.31088 was needed to proceed?
2. Do you think it was proper for the HOA attorney to consult the HOA board on how to proceed when the attorney directly benefited? At the very least, either party should have requested a supporting letter from another attorney to support the HOA attorney’s interpretation?
The lawsuit proceeded and the HOA lost. Attorney fees were $500,000 to $550,000. This is no minor misinterpretation and I would appreciate your help.
A: Without a copy of the attorney’s opinion of how he interpreted NRS 116.31088, I cannot accurately respond to your question of whether the attorney properly advised the association. NRS 116.31088 1e allows an association to commence legal action without a majority of votes if the civil action that is being commenced pertains to the protection of the health, safety and welfare of the association members. If the civil action is pursued without the required vote or agreement, the action must be ratified within 90 days after the commencement of the action by a vote or written agreement of the owners to which at least a majority of the votes are allocated. If the association, after making a good faith effort, cannot obtain the required vote or agreement to commence or ratify the civil action, the association may seek to dismiss the action without prejudice for that reason.
You should contact the Nevada Real Estate Division to investigate the action of the association to determine if the law was, in fact, complied with under NRS 116.31088.
Obviously, with any lawsuit, an attorney will receive compensation. That is just a fact, but it is also the responsibility of the attorney to advise the association of the laws and to advise the association of its legal strength in pursuing a lawsuit.
Barbara Holland is a certified property manager and holds the supervisory community manager certificate with the state of Nevada. She is an author and educator on real estate management. Questions may be sent to email@example.com.