Board must follow rules

Q: Our current board president was removed from the board for not attending meetings. She was put back on the board by outside intervention. She is now president with one other newly elected board member remaining.

I have attended board meetings when president did not attend. Even though she has not attended many of the meetings, she has a policy of not enforcing certain covenants, conditions and restrictions. She decided on her own to suspend the enforcement of parking regulations until she gets survey forms returned. Can she do this?

A: I would advise contacting the ombudsman office since you have indicated that the board and the management company have been vague in how a removed director has been placed back on the board.

It should be noted that there is nothing in the state law, NRS 116, that would preclude a removed director from returning back to the board either through election or appointment.

As to suspending the enforcement of covenants, this would be in violation of your governing documents. Even if the survey indicated that homeowners want to modify the covenants, the homeowners of the association would have to vote to amend them.

The division or commission does not have jurisdiction over governing document violations/issues unless the violation or issue is addressed in NRS 116. The board of directors cannot pick and choose what covenants that they want to enforce and there is a regulation in NAC 116.400.

NAC 116.400 Members of executive board: Responsibilities. (NRS 116.3103, 116.615) In performing the duties set forth in NRS 116.3103, a member of an executive board shall:

1. Comply with all applicable federal, state and local laws and the governing documents of the association;

2. Uniformly enforce the provisions of the governing documents of the association;

Please note the provisions of the regulations, comply with all of the governing documents and uniformly enforce the provisions.

In addition, to make changes in the covenants require the vote by the homeowners per NRS 116.2117, amendment of declaration.

1. Except as otherwise provided in NRS 116.21175, and except in cases of amendments that may be executed by a declarant under subsection 5 of NRS 116.2109 or NRS 116.211, or by the association under NRS 116.1107, 116.2106, subsection 3 of NRS 116.2108, subsection 1 of NRS 116.2112 or NRS 116.2113, or by certain units' owners under subsection 2 of NRS 116.2108, subsection 1 of NRS 116.2112, subsection 2 of NRS 116.2113 or subsection 2 of NRS 116.2118, and except as otherwise limited by subsection 4, the declaration, including any plats, may be amended only by vote or agreement of units' owners of units to which at least a majority of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use.

State law, NRS 116.3103, subsection 2 further restricts the power of the board of directors.

2. The executive board may not act on behalf of the association to amend the declaration, to terminate the common-interest community, or to elect members of the executive board or determine their qualifications, powers and duties or terms of office, but the executive board may fill vacancies in its membership for the unexpired portion of any term unless the governing documents provide that a vacancy on the executive board must be filled by a vote of the membership of the association.

In your case, the president wants to suspend enforcement of the parking covenants pending a response from a survey pertaining to parking regulations. If the survey indicates that the membership wants change, then the appropriate action is for the board to send an amendment to approve the change.

Barbara Holland, CPM, and Supervisory CAM, is president of H&L Realty and Management Co. To ask her a question, e-mail support@hlrealty.com. To view a power point presentation of the new laws that were recently passed affecting HOAs, visit hlrealty.com, click on press release button on the left side, then click on article title, "The 2009 Legislation for common interest communities."