Q: My homeowners association is in the midst of a recall petition action. Currently, the recall petitions have been vetted by an outside professional CPA firm, and the recall process is being handled by a professional legal firm. The recall vote is now underway.
However, everything seems to be under a veil of secrecy when it comes to the identity of the originators of the recall petitions as well as the signatories on the recall petitions.
My questions are:
■ Why should the originators of the recall petitioners be allowed to hide under a veil of secrecy when the board, the management and the professional firms must abide by the law and be open and public?
■ Why should the signatories of the petitions be allowed to hide under a veil of secrecy and not have the petitions available to the residents of the HOA?
■ Why is there no avenue to rebut the half-truths and, in some cases, outright lies contained within the petition language?
The whole process appears to be very one-sided against all of the residents of this HOA.
What is your view on these events, and what part of the law covers the openness of this information?
A: Nevada Revised Statutes 116.31036 pertains to the removal of an executive board member. Section 2 of the law states that a recall petition may be called by the homeowners who constitute at least 10 percent, or any lower percentage as specified in the bylaws of the total number of voting members of the association. It continues by stating that the homeowners must submit a written petition, which is signed by the required percentage and is mailed, return receipt requested or served by a process server to the board or the community manager of the association.
The law is silent as to whether the names on the petition can be disclosed. If this was my association, I would caution on the side of being conservative and not release the names on the petition for concerns of potential harassment by other homeowners within the association. The association would check the names on the petition against their homeowner list to confirm that the signers are homeowners within the community. Unless required by the Ombudsman Office or by the courts, the signers would not be disclosed. Please remember that a petition is not the recall election and the homeowners would have to make that decision to remove or not remove a directors.
NRS 116.31035 states that if there is an official publication that contains any mention of a candidate or any views or opinions, the official publication must, upon request and under the same terms and conditions, provide equal space to all candidates, views and or opinions. Normally, when there is a recall election, just the names would be placed on a ballot without any comment as to why they should or should not be removed.
If individual homeowners are sending communication to other homeowners without involving the association, they do have that right — the freedom of the press. Homeowners do have to be careful in what they are sending, as libel and slander are both forms of defamation. Slander is spoken defamation and libel is written or published defamation. If the statements are not accurate, those being harmed could sue based upon alleged damages to the reputations of those directors being recalled.
Q: I am a board member of a 124-unit complex here in Las Vegas. My question is: I see a need for legislation when a fine is levied for a HOA violation or when an owner does not pay his monthly HOA dues. The NRS rules are such that this all goes to collections and then a lien on property. If an owner knew that — this lack of payment to HOA would result in a negative mark on the three credit bureaus — then maybe the owner would pay his dues. We need this to encourage an owner to pay what is owed. Just like a car payment that is due.
A: I respectfully disagree that we need more collection laws. Before even purchasing a home within an association, under NRS 116.41095, all buyers must receive a document that is called, “Before you purchase a property in a common-interest community, did you know? …” Section 4 of the list that must be included in this document is titled: “If you fail to pay owner’s assessments, you could lost your home.”
In addition, under NRS 116.31162, which is part of the foreclosure process laws, in 14-point bold type printing is a warning statement: “Warning! If you fail to pay the amount specified in this notice, you could lose your home.” Before an association foreclosing on a homeowner, most associations will send at least two letters over two months, informing the homeowner that they are delinquent and the association will take legal action against them. Homeowners also receive pre-collection notices.
Now, you can certainly add language to the delinquency letter that the homeowner will be sent to collection and that this can do damage to their credit rating, but losing your home is a far greater loss.
One solution the lenders have fought against that could solve many issues is for the legislators to pass a law that requires the lenders to impound association assessments. Had Nevada had such a law years ago, we would not be in a Catch-22 situation with the state and federal unresolved court cases, costing thousands and thousands of dollars from all sides, wasting time, money and public resources of the courts.
Had the lenders followed the laws years ago, and paid the nine months assessments, they would have protected their assets, and associations would not have been caught in the middle between the bank and the subsequent buyers of the foreclosed homes.
Q: Is there any reason that a person in a guard-gated community/HOA can’t participate in programs like Airbnb if they have a spare bedroom to rent out?
A: Yes. Most covenants, conditions and restrictions state that there is a minimum lease or rental period, often at least 30 days. Other associations might require a year lease agreement.
In addition, under NRS 116, the residency must be at least 30 days, otherwise the home is considered a commercial enterprise.
The concept of homeowner associations was based on single-family residency, which you would generally see that written in the very first lines of the CC&Rs. Too many rentals impact homeowners who wish to sell or refinance their homes. These short-time rentals impact the stability and environment for the established homeowners who live in their homes.
Barbara Holland is a certified property manager, broker and supervisory certified association manager. Questions may be sent to firstname.lastname@example.org.