Get involved, run for board to change outcome

Q: For the past four years, our board has been comprised by seven members. Our president is backed by three other members and all four vote identically. The president does not live in the unit (although he is the owner of record) and we have found out that his unit in foreclosure and he is in arrears with his association dues. Lately, the president has been cancelling or not attending scheduled meetings. There are problems with maintenance of the property and our common areas are deteriorating. Still, the management company will only take direction from the president.

What actions can be taken in allowing this president to continue serving on the board? Since the management company only receives directions from this president, what is their complicity for any damages regarding the lack of maintenance and the cost we, as owners, will have to incur to repair, replace and bring the property back to the state when it was first built?

A: For the president and the three board members to have been on the board for four years tells me that either they keep winning elections or that no one is running against them. The e-mail also tells me that it appears that no one has tried to recall the president or the board members. Ultimately changing the composition of the board by electing new directors would possibly solve much of your issues. You should consider running for the board or finding and encouraging others to run who will perform their responsibilities better than the current board.

The president has the right to vote as a homeowner. The president can make or break a tie. There is nothing to prevent a coalition of the four board members other than to recall them or to elect others in their place.

The state law allows delinquent homeowners to run and to be elected to the board. The law requires disclosure of the board candidate as to whether the member is one in good standing, i.e. not delinquent in assessments but there are no penalties if that member does not disclose this information and the board cannot comment that the member is delinquent when the ballots are sent out with the disclosure statements of the candidates. There is no state law that would prevent a nonresident owner from becoming a board of director.

If your association does not hold the required number of board meetings (four or more depending upon the governing documents of the association), then you can file a formal complaint with the ombudsman office at the Nevada Real Estate Division.

As to the foreclosure of the president's home, the average foreclosure could easily take nine months to complete assuming that the member did not file bankruptcy. In addition, you would have to provide information to show that the association is not following its standard procedures in its collection and foreclosures against the board member.

Most management agreements have a clause that states that the board selects one person as a liaison to the management company which in most case is the president. Unless there is specific directions or instructions from the board, the manager would follow the instructions of the president subject to the state laws and to the association governing documents.

Q: I need to find out which governing documents, including Nevada revised statutes; covenants, conditions and restrictions; Housing for Older Persons Act and Housing and Urban Development take precedence over our bylaws, rules and regulations and in the order of precedence.

Some board members are trying to circumvent the bylaws governing who lives in our community, which is age-qualified, by stating that the association rules take precedence over legal and federal agency rules.

A: NRS 116 has a section that is also covered in the covenants: articles of incorporation; covenants: bylaws; architectural guidelines and restrictions within a community guidelines, rules and regulations; in that order.

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."