Law spells out procedures for elections

Q: I am a volunteer on a committee charged with developing election procedures and guidelines for electing the board of our homeowners association. Do you have guidance on this subject or can you direct me to where we might find some help on this?

A: NRS 116.31034 specifically spells out the procedure for the election of directors. Here is a quick summary of those procedures. An association shall have a minimum of three directors, all of whom must be unit owners. The board elects its own officers. Unless the governing documents provide otherwise, the officers of the association are not required to be unit owners.

The term of office cannot exceed three years and there is no term limits by law although an association could establish term limits. (For many associations, term limits would be a killer as so few people volunteer for directorships). The terms of office are to be staggered in such a manner that to the extent possible that an equal number of directors are elected at each election each year.

Not less than 30 days before the preparation of the ballot for election, the association is to send a notice to each owner of his or her eligibility to serve as a member of the board and that if the owner wants to serve, his or her name will be placed on the ballot. The board and or the nominating committee can also place members' names on the ballot. There is no qualification set in the law that would exclude a member to run for the board, only that the member makes certain disclosures as to conflicts of interests or if he or she is a member in good standing. For the State law, member in good standing means that he or she does not owe any assessments or construction penalties. Even if the member does not submit this information, there is nothing in the law that would allow an association to deny placing his or her name on the ballot. In addition, the association could not place a note that the member is not in good standing. The board could only note that the member did not submit the required disclosure statements per the statute. The board is not obligated to distribute any disclosure to the membership if the information is believed to be defamatory, libelous or profane.

NRS 116.3103 subsection 2 states that the board may not determine the qualifications, powers or duties or terms of office. The board would have to submit its recommendations to the membership to vote on the qualifications and powers and duties as amendments to their governing documents, subject to the laws under NRS 116.

Assuming that you have more candidates then director positions, the ballots are mailed to the membership to vote. Each owner must be provided with at least 15 days in which to return the secret written ballot (must be in an enclosed envelope and placed inside an outer envelope). The ballots are opened and counted at a meeting of the association. A quorum is not required for the election of any member to the board.

Some of the newer sections of the state law includes a procedure where ballots would not have to be sent out to the membership if the number of candidates is equal to or less than the number of available seats on the board. The candidates would be deemed to be duly elected if the association proceeds with one other step. Another notice would be sent one more time inviting owners to place their name on the ballot within a 30-day period to respond. If no other member places his or her name for nomination, then the candidates would be deemed to be elected. If more names are placed on the ballot than available seats then ballots would be sent for owners to vote for their directors.

You can access the NRS 116 statutes online and incorporate the procedures for the election of directors for your association. As you read these sections, it will become quite clear that the state has placed many requirements and restrictions as to the nomination and election process for homeowners associations.

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."