Updating community rules is big job

Q: I have been a homeowner within a homeowners association for 20 years and am a former board member. Over time, the covenants, conditions and restrictions and bylaws need to be reviewed, modified and revised to reflect the changing needs of the community. Our current community manager says we’ll never get the votes so we do nothing.

We have 200 units with about 10 homeowners willing to start the process of reviewing the CC&Rs, discussing possible revisions. How do we go forward from here? And if once changes are crafted and mailed to the individual owners, can we include a note stating “silence deems approval.” There’s the idea of minimal response from units that are non-owner occupied.

A: It is true that amending the governing documents is not an easy task for just one section let alone the entire document. Here are some suggestions.

Most of the laws that have been passed over the years have superseded your governing documents. Nevada Revised Statutes 116.1206 section 1A states that any of the governing documents that violates NRS 116 shall be deemed to conform with those provisions by operations of law and the governing documents do not need to be amended to conform with the provisions.

An attorney could review your governing documents and prepare an amendment, which does not require the vote of the homeowners, listing all of the changes in the law and where sections of your current CC&Rs have been changed as a result of the state laws. That is probably the easiest and fastest way.

Under NRS 116.12065, you would send the proper notification to the homeowners of the changes. I don’t want to skip a step, but you would first present the changes at a board meeting and make sure you have it on your agenda.

If you were to make other changes (often removing sections which pertain to the declarant, or developer), one law that was passed in 2011 will be most helpful. NRS 116.2117 sections 8A and 8B allows you to “fast track” approval of any proposed amendment to a holder, insurer or guarantor (lenders and any other persons who hold a security interest). Generally, it states if these parties are notified of the changes by certified mail (if that is what is required by your CC&Rs) and a written refusal to consent is not received by the association within 60 days, then consent to the amendments is deemed to have been granted.

Finally, there is one more law that lists the procedure for an association to seek confirmation from the district court of certain amendments to the CC&Rs, NRS 116.21175.

This law was passed in 2005 in recognition of the fact that it is so difficult to amend CC&Rs, especially for the older governing documents of which 90 percent approval were required. This law is a complex one that would require the assistance of legal counsel. It would be interesting to know how many associations have even attempted to amend their governing documents by going to the court. In essence, if the association received a majority of votes approving the changes but failed to reach the super-majority requirements as stated in the governing documents, the association could file a petition with the district court asking for a waiver of this super-majority requirement and confirming the amendment as validly approved. The law proceeds with the details that must be followed.

Good luck. My recommendation is the first one: Have your attorney revised the CC&Rs by listing all of the changes by operation of law that supersedes your current governing documents.

NOTE: In the Nov. 8 HOA Q&A column about the AB 386, which addresses squatters, I made a typo in the email address for officer Malcolm Napier of the Metropolitan Police Department. The correct email address is M14459N@LVMP.com.

— Barbara Holland is a certified property manager, broker and supervisory certified association manager. Questions may be sent to holland744o@gmail.com.