HOA member has fiduciary responsibility to community

Q: We have a homeowners association board member who is married to a man who funds and advises homeowners. She refuses to follow our covenants, conditions and restrictions.

I think having that board member in any executive session where her husband is involved is a conflict of interest, and that she must recuse herself.

But there are those who have said that she cannot be made to recuse herself.

Is it possible that she can vote on issues that benefit her husband in his endeavors and vote against the association's best interests?

A: Nevada Revised Statutes 116.3103 has very strong language about the fiduciary responsibility of directors:

"In the performance of their duties, the officers and members of the executive board are fiduciaries and shall act on an informed basis, in good faith and in the honest belief that their actions are in the best interest of the association.

"Officers and members of the executive board are required to exercise the ordinary and reasonable care of officers and directors of a nonprofit corporation, subject to the business-judgment rule and are subject to conflict of interest rules governing the officers and directors of a nonprofit corporation organized under the law of this state."

You have two choices, the first is to begin a recall of the director.

The second option would be to file a complaint against the director with the state Ombudsman's Office, but you must be able to substantiate her actions that you consider are conflicts of interest.

Q: Our HOA streets are city streets, and for years we have been following the governing documents regarding street parking.

Now, we have some people who want to bust the HOA and are insisting that since the streets are city streets we cannot enforce our rules of no-street parking. We have for years enforced these policies.

Our CC&Rs direct homeowners not to park on the street. There are exceptions for visitors of 14 days or less, and owners who are cleaning a recreational vehicle or boat.

Our architectural standards states that each residence must have three parking spaces and two must be in a two-car garage.

For 18 years we have enforced this. What is your view of this problem?

A: When the owners purchased their homes within your association, they agreed to abide by the association's governing documents, which specifically state they cannot park in the streets with certain exceptions.

Your documents are more stringent than city code as to street parking. If they were less stringent than city code, you would not be able to enforce your rules.

You are not allowed to tow the vehicles from the city streets unless the vehicles were in violation of city code, and the tagging and the towing were initiated by the city.

You can enforce your regulations through fining the homeowners by following due process of a courtesy notice and, if necessary, a hearing/fine notice.

Note: The Ombudsman's Office often holds free HOA education classes. Here are a few upcoming events: open Q&A forum, 8 to 9 a.m., Dec. 14, Bradley Building, 2501 E. Sahara Ave.; and administration and enforcement of NRS 116, 10 a.m. to noon, Dec. 14, Sun City Aliante, 7394 Aliante Parkway, North Las Vegas.

Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. Questions may be sent to Association Q&A, P.O. Box 7440, Las Vegas, NV 89125. Fax is 385-3759, email is support@hlrealty.com.