Is HOA’s handling of election ballots legal?

Q: Our homeowners association board members say ballots cannot be counted unless they are sent to the management company ahead of the meeting; is that legal? I usually just hand-carry mine, but they are telling me I can’t do that next week.

A: The law that pertains to the election ballots can be found under Nevada Revised Statute 116.31034. Section 10 d states: “Only the secret written ballots that are returned to the association may be counted to determine the outcome of the election.”

It could be interpreted to mean that the ballots must go to the association through the management company prior to the election. There is a legitimate reason why your association has instructed homeowners on how to return ballots to the association. It allows the management company time to process the ballots, i.e. are the returned ballot envelopes properly marked to identify the correct address of the homeowner?

That said, I know of an association where a homeowner challenged this procedure, stating that he had the right to bring his ballot to the election meeting. After his attorney and the attorney for the association conferred, it was decided that homeowners had the right to bring their ballots to the election meeting. Many associations’ ballot instructions inform homeowners of the deadlines when their ballots need to reach the management company and if they plan to bring their ballots to the meeting to bring proper identification.

Q: We are having a heated discussion on whether or not our association has the right to place restrictions on the use of public streets in our community. When our association was formed about 30 years ago, the developer planned on it being a gated community, and our covenants, conditions and restrictions reflect that. Since our community was not gated, the streets were taken over by the city and are public streets. The city is responsible for issuing tickets for moving and parking violations, as well as providing police protection. Our board has had a running battle over residents parking on the streets.

Several years ago, the board asked for a written legal opinion regarding streets and was advised that since the word “private” is used in the definition of streets and we do not have private streets the association has no jurisdiction them. Now, several board members want to enforce street parking and ignore this legal opinion.

I do not believe the association has the right to adopt rules that are not spelled out in our CC&Rs without a vote by the owners.

Additionally, we have two HOAs in our community. Since we do not have any way of positively identifying who has ownership, board members will enforce rules upon who they think owns the vehicle. A notice will go out and it is up to the homeowner to prove it is not his or her vehicle, failing to respond would result in fines. This has already happened regarding a trailer.

A: First, your association received a legal opinion, consequently, the association and the board have been placed on notice as to the proper policy and procedure. If you were to fine one of your homeowners and he or she were to take the issue to the Nevada Real Estate Division’s arbitration, the association could lose. Second, there are two associations in your community, which creates a logistical problem as to enforcement.

Your board needs to think twice on this issue and perhaps have a meeting with legal counsel to review the opinion.

NOTE: The Las Vegas chapter of the Institute of Real Estate Management will hold its annual forecast breakfast and industry fair Jan. 7 from 8 to 11 a.m. at the MGM Grand Convention Center. Registration begins at 7:30 a.m. Cost is $55. Moderator will be Nevada Public Radio’s Florence Rogers. To register call 702-878-0959 or visit lasvegasirem.org.

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 the Association Q&A, P.O. Box 80360, Las Vegas, NV 89180. Fax is 702-385-3759, email is support@hlrealty.com.