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Grandfathered rentals in HOA protected by law

Q: I’m a landlord in Las Vegas with a few properties that are all in homeowners associations. They are all gated communities. I have three houses in a single HOA and live in one and rent the other two. I have noticed recently a faction of resident owners participating in the online message board nextdoor.com, posting more and more hostile messages related to rentals, and, in general, how to “get rid” of them, and more specifically, recently, regarding “getting rid” of Section 8, rentals of which there are a few in the community.

This doesn’t matter, but let me disclose I have never taken a Section 8 tenant. In my ads I specifically indicate: “No Section 8.” My rationale for this is my participation in S8 would be voluntary. There is no federal mandate to participate. I choose to not participate, and I have never paid for, nor allowed my houses to be inspected for S8. I do know that in some jurisdictions such as Portland, Chicago, many places in California, etc, landlords are prohibited from discriminating by “source of rent payment/income” or “public assistance status,” and thus are prohibited from discriminating against S8. To my knowledge neither Nevada nor Las Vegas has any such law, and I am free as a landlord to either accept or not accept S8 voucher payments (provided, of course, I am not discriminating against anyone for any other reason, which makes them part of a protected class).

I gather that the HOA may not now — after I have owned two houses as rentals since 2012, and my own house since 2004 — change their governing rules to prohibit my continuing to rent them. And since I have no Section 8 tenants, nothing they do related to S8 would apply to me anyway.

However, I am interested in the legality of Section 8 HOA restrictions. I had thought it illegal for a state/city to enact restrictions prohibiting a landlord from voluntarily participating in Section 8 or accepting a voucher.

I had never heard of a state/city trying to do that, in fact, it is usually the opposite where progressive local governments enact laws to prohibit a landlord from discriminating against someone simply because they use an S8 voucher. All that is for a state/city. But what of an HOA?

In my research, I was shocked to find online statements that S8 tenants are not a protected class and there is no prohibition against an HOA restricting owners from renting to them. My question is this: If my HOA decides to enact such a change either passed by the board or by amendment to the covenants, conditions and restrictions to prohibit S8 tenants:

1. Is there any law you can cite that restricts their ability to do so?

2. Is there any law you can cite that would restrict their ability to do so retroactively, thus forcing a landlord with an existing S8 tenant in place to evict the tenant simply because of them being S8?

And, we all know, yes, all tenants must abide by other CC&Rs, must not violate rules and the owner can be fined or cited by HOA for non-maintenance, landscaping, noise and other rules. My own HOA requires a CC&R clause in the lease, registration of all tenants, copies of current rental agreement on file with HOA management and many other things that they can legally do. But provided they are otherwise following the rules, can an HOA force a landlord to “get rid” of S8 tenants because they are S8?

We all know this is somewhat academic, because if an HOA is hell-bent on hostility to non-owner-occupied properties — even owner-occupied ones with an owner they have a grudge against — they can make life so difficult that an owner will eventually give up and sell instead of paying the extreme costs of fighting. If it is not an S8 rental issue it will be something else, and the violation notices and fines will be relentless until they get their way.

A: In 2005, the Legislature passed a bill pertaining to renting or leasing. Nevada Revised Statute 116.335 states the following: “Unless at the time a unit’s owner purchased his or her unit, the declaration prohibited the unit’s owner from renting or leasing his or her unit, the association may not prohibit the unit’s owner from renting or leasing his or her unit.

If your CC&Rs did not prohibit renting or leasing at the time you purchased your rental homes the association cannot prohibit the renting or leasing of homes.

I would alert you that NRS 118.020 is the declaration of public policy of the state; and that all people in Nevada have an equal opportunity to lease or to rent without discrimination or restriction because of race, religious creed, color, national origin, disability, sexual orientation, gender identity or expression, ancestry, familial status or sex.

We do have what has been called the “Mrs. Murphy” clause in our law that also can be found in federal law. The Mrs. Murphy exemption provides that if a dwelling has four or fewer units and the owner lives in one of those units that home is exempt from the Fair Housing Act.

Q: I am an owner/ resident in Summerlin. Other residents, who own, and myself are having problems with a new HOA management company that came on board last year, replacing another management company. The current company fails to discuss or disclose to homeowners pertinent information in regards to compliance, irrigation, finances, homeowner violations and other dubious situations here in our community. There was a meeting last night with the landscape company, which intend to rip up the entire community’s 20-year-old irrigation system in October, and at our expense. Owners got lip service last night. The ombudsman has been notified. Where do homeowners stand against HOA’s and property gardeners, and what alternatives are available to stand up to them.

A: It is the board’s obligation to report on the various issues that you listed with the assistance, if needed, by a management company. As a homeowner, you can request financial statements of your association and a summary of the outstanding violations as by law. The association cannot provide any details as to the status of those violations.

It is not unusual that your landscaper is discussing the replacement of a 20-year-old irrigation system, as the system is probably not very efficient, especially with water consumption. Most reserve studies should be covering this expenses. You need to confirm that this will be a reserve expense. Irrigation and landscape expenses are one of the reasons why associations are required to properly fund their reserves as the replacement of an irrigation system is costly. I think the you would be very surprise as to the current condition of the irrigation system, and perhaps the landscape company with the board could present a “show-and-tell” with specific information and photographs for the homeowners.

The actual replacement of the irrigation system is not covered under the ombudsman’s authority. What is covered would be the proper agendas, notifications that would inform the homeowners of the proposed replacement, along with the budget and reserve study. The Ombudsman Office is concerned about the due process procedures and not irrigation matters.

Q: I work for a homeowners association, but was told I can no longer work there because I live there and I am a homeowner there. I cannot find where it states in the NRS that I cannot be an employee there if I am a homeowner. Can you send me in the right direction?

A: Your company may have such a policy, but there are no NRS 116 laws that would prevent you from working at your community.

Barbara Holland is a certified property manager, broker and supervisory certified association manager. Questions may be sent to holland744o@gmail.com.

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