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Division publishes its opinions for boards

EDITOR’S NOTE: Barbara Holland is taking a break in the Q. & A. format of this column to discuss recent opinions published by the Nevada Real Estate Division that will affect Southern Nevada homeowners associations.

The Nevada Real Estate Division has published four opinions of how the division will handle these issues of association management. For complete copies of these opinions, access http://www.red.state.nv.us/publications/opinions.htm.

The first opinion addresses the question: Is the association required by law to pay postage on return envelopes for ballots, whether, for board elections or removal elections? The secret ballot and the returned envelope must be mailed prepaid by U.S. mail to each owner. A unit owner is not required to mail the ballot and the return envelope back to the association but simply return the secret ballot to the association with a specific time. It is inferred that the secret written ballot is returned in a sealed envelope. (NRS 116.31034 (8b) and (8b).

There is no statutory requirement that an association provide for or pay for any return ballot. It is solely at the discretion of the board.

The second opinion is how a unit’s owner may request an item to be placed on the agenda of the association’s units’ owner meeting (not board meeting), NRS 116 and NAC 116 are silent regarding a method or procedure by which a unit owner can have an issue placed on the agenda of the units’ owners meeting of the association.

NRS 116.3108 (1) requires at least one meeting a year, generally referred to as the annual meeting of the unit’s owners.

In SB 182, the board must be responsive to the homeowner who upon written request ask that his or her complaint (the complaint must also be in writing) that alleges inappropriate action against the board be placed on the board’s meeting agenda to address the complaint.

The division has concluded that unit owners should have the opportunity to request an item be placed on the agenda of the units’ owners meeting by submitting in writing to the secretary or other officer specified by the bylaws a clear and complete statement of the topic to be considered during the units; owners meeting.

The division advises boards to announce the annual homeowners meeting date and to call for items to be placed on the agenda with a deadline of when the written request must be received.

The third opinion pertains to whether an association should make available the association’s compiled data list of units’ owners. NRS 116.31175 and NAC 116.405 state that the review of association records do not include records relating to another unit owner (except for a general record of violations that do not specify identifying information) and affirms the protection of personal information, which prohibits a member of the board from disclosing confidential information of a unit owner unless the unit owner has consented, respectively.

The advisory conclusion is that the association’s compiled data list of unit owners is not public record and should not be made available to either another unit owner or another entity.

The last opinion pertains to the actions that a board can take if it is aware of incorrect or incomplete information has been supplied by a candidate for election to the board in his candidacy disclosure. Sorry to tell you but the short answer is that the board may take no action.

The requirement to disclose (one of conflict and one of good standing) is placed on the candidate. There is no authority for the incumbent board to review or verify the completeness or accuracy of the candidate’s disclosure. The board is required to distribute the disclosures supplied by the candidate to each member of the association with the ballot. (NRS 116.21034.5). An association is now not obligated to distribute any disclosure if it contains information that is believed to be defamatory, libelous or profane (SB 183).

If the association has not received a written disclosure that fact should be disclosed with the ballot. The board would include a statement which is distributed with the ballot to inform which candidate disclosure was not distributed because it was believed to be defamatory, libellous or profane. Current law does not address a penalty for failure to disclose complete or accurate information in a required candidate’s disclosures.

Please note again, these are opinions of how the Nevada Real Estate Division will handle these issues. They have not been tested and appeals would have to be made to the Nevada Commission for Common Interest Communities and Condominium Hotels.

Barbara Holland, certified property manager, is president and owner of H&L Realty and Management Co. To ask her a question, e-mail support@hlrealty.com.

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