Q: First, I want to say thank you for your weekly column. I read it each week and it has been very informative to me.
I was elected president of a small homeowners association in Las Vegas. The community is comprised of 10 lots, eight which have homes built on them. The two vacant lots are owned by two separate members of the community. The declaration of covenants, conditions and restrictions was filed with the Clark County Recorder by the original declarant (builder) February 2008. The association was registered with the Nevada Secretary of State in August of 2010.
In the preamble of the Declaration, it states: “The property consists of 10 lots for the residential community.” Article 1 — Definitions, Article 1.2 states: “Articles shall mean Articles of Incorporation of the Corporation, as such articles may be amended from time to time.” Article 1.3 — Annual Assessment, states: “Assessment shall mean a charge against a particular owner and his lot, representing a portion of the common expense, which are to be levied among all owners and their lots in the property in the manner and proportions provided herein.” Article 1.4 — Assessments. Special, states: “The assessment levied shall be levied among all the owners and their lots in the property in the same proportion as annual assessments.” Article 1.16, Declaration, states: “Declaration shall mean the declaration of covenants, conditions and restrictions, as it may be amended from time to time.”
In February 2012, it was presented and voted on by the members of the association to only levy the annual reserve assessment against the eight lots with existing homes. The amendment to the original declaration was drawn up and recorded with the Clark County Recorder February 12, 2012 by the original president of the HOA.
Fast forward to current time. I was elected president of the HOA in January of 2021, superseding the original president, mentioned above, that served from 2012 to 2021. He is not happy that the reserve assessment is levied against eight lots instead of 10. He is saying that the amendment that he originally recorded was illegal and should be reversed. I have read the declaration, which I have been told are our ruling documents, many times and can’t find anything that relates to this action being illegal. I do know that if the homeowners ask to put this issue on our meeting agenda, it could be voted on to either change it or keep it as it is. No one has done this to date.
I hope I have explained this so that the chain of events makes sense. I am hoping that you can give your opinion on this. Thank you.
A: If the association followed the procedures as outlined by your governing documents, the amendment to change 10 lots to eight lots would be legal. If the former president now states the amendment did not follow the proper procedures and is illegal, the former president would need to provide empirical information to support his claim.
As to placing the issue on the next board agenda, the homeowners would need to make this request in writing. Once it is on the agenda, the current board could take no action, especially if the former president cannot provide the information to show the amendment was not done according to your governing documents.
Barbara Holland, CPM is an author, educator, expert witness on real estate issues pertaining to management and brokerage. Questions may be sent to [email protected]