CC&R interpretation

Our CC&Rs state "Right to Notice and Comment. Before the Board of Directors amends the Bylaws or the Rules, whenever the Governing Documents require that an action be taken after "Notice and Comment," and at any other time the Board of Directors determines, the Owners have the right to receive notice of the proposed action and the right to comment orally or in writing.  Notice of the proposed action either shall be given to each Owner in writing, delivered personally or by mail to all Owners at such address as appears in the records of the Association, or it shall be published in a newsletter or similar publication which is routinely circulated to all Owners.  The notice shall be given not less that five days before the proposed action is to be taken.  It shall invite comment to the Board of Directors orally or in writing before the scheduled time of the meeting."

In reality, the Rules Committee has met a week or so before the BOD meeting and the new/amended rules approved by the BOD the following week at the scheduled meeting. The agenda merely states that the Rules Committee are on the agenda and may speak. Emphasis here on the lack of any details other than Rules Committee and name of BOD spokesperson.

When I asked the CM and Pres of BOD where the 5-day advance notice to allow for written or oral comment or response was, they said the 5-day notice was the formal agenda being published and hung at the mailboxes and available in the office. When I asked how we could respond if there is nothing listed in the agenda, Pres of BOD responded that that is what the 3 minutes at the beginning of the BOD meeting is intended for.

Dumbstruck, I asked how was I to know what to ask or whether or not I agreed with the proposed changes when they were still unknown, the Pres of BOD explained again that was the purpose of my 3 minutes at the beginning of the meeting.

So I have three minutes to ask WHAT the changes are going to be, have them tell us, formulate my opinion on the changes, and respond...all in that 3 minutes.

To cap it off, the CM wrote me to say that they spoke to the State Ombudsman who agreed that this was sufficient. I'm curious what the CM asked that garnered the answer he/she was looking for.

Am I crazy to think that this is violation of the above stated CC&R Article?

Melissa, The question is whether or not an agenda with no details is in line with the Article, which states a 5-day notice for Owner comment/response BEFORE implementation of new R&Rs.

Remember, the Owners haven't been given the proposed changes ahead of time. As an Owner, I am being given 3 minutes at the meeting to ask if and what the changes are, have them tell us (the audience/Owners), formulate my opinion/comment, and respond.

Is this in line with the Article?

I agree. It should take owners voting in the majority (however so much) to change Covenants or Bylaws. I have heard of some having the power to change the Bylaws, but never the Covenants.

BOD's being able to change Rules and Regulations (R&R's) is fine as long as the changes do not circumvent Covenants and Bylaws but it is common to try this.

Additionally, few understand the differences between Covenants, Bylaws, and R&R's. Most usually lump them together as Bylaws.

Kerry, thanks for the welcome. I am reading the CC&Rs Article the same way you are: 5-day notice about the contents of the proposed changes BEFORE the meeting. I think the the CM is trying to twist the verbiage to mean that the agenda is notification and that the "proposed change" is the general notice that R&Rs will be changed. The Pres of BOD specifically stated that it was in the 3-min I have available at the beginning of the meeting that I will be given the opportunity to ask what the R&R changes will be.

You aren't missing anything...that's why I am dumbstruck. There were others around hearing this exchange and were also astounded. When I said that it didn't make any sense and it wasn't even in the spirit of the CC&Rs, the Pres of BOD just shrugged.

Nevada NRS 116 only specifies notification in general terms, and our Bylaws state:

"Method for Giving Notice, Except as otherwise expressly set forth herein, any notice permitted or required to be delivered by the terms of these Bylaws may be delivered either by hand delivery or by mail. If delivery is by mail, it must be directed to the Member at the mailing address of each Unit or to any other mailing address designated in writing by a Member, and the notice shall be deemed to have been received within seventy-two (72) hours after the mailing thereof, except as otherwise stated in the Declaration...The notice of any meeting shall be in writing and shall be signed by the President or the Secretary of the Association or by such other persons as may be designated by the Board of Directors. The notice of any meeting of Members must state, among other things, the time and place of the meeting and the items set forth in Sections 4.2.3 and 4.2.4, as applicable. "

I will be calling our State's Ombudsman's office on Monday; but in the meantime, I wanted to have other eyes on this to see if I could possibly be missing something myself.

Update: called Nevada Ombudsman's office, they are researching "notification". I have read everywhere that as long as the CC&Rs do not contradict or violate NRS (Nevada Revised Statutes), then they stand. The CC&R Article just specifies that owners will have 5-days advanced notice to be able to respond to R&R changes BEFORE implementation. Not sure why this needs so much research, but will keep anyone who is interested posted on how this comes out.

Nothing is as clear as it should be. SMH!

Yes, keep us informed, MM...

Update: So far what seems as straight forward in our CC&Rs is irrelevant in the eyes of the law (the Nevada Revised Statutes). The CC&Rs state, and I'm paraphrasing here, owners have the right to 5-day advance notice of Gov Docs and Rules changed in order to submit oral or written comment (exact phrasing above).

At every turn, the NRS, which is much looser, prevail. Details: Ombudsman investigator saying that Agenda is 5-day notice; when I questioned how to respond in writing or orally if we're given only 3 minutes at the beginning of the meeting to ask for change detail, be told (11 rule changes at March meeting), formulate oral only response (obviously no time for written), and respond, the investigator's response, "I don't know".

I have been under the misguided impression that as long as the Gov Docs do not contradict the law (and in some cases can be more specific), they prevail. This is turning out NOT to be the case.

So then, what is the purpose of the Gov Docs if our CM can quote NRS to skirt the CC&Rs? It may be legal, but it sure isn't very ethical!

Anyone have any thoughts on this?

My guess on what's happening:

- Most State's Ombudsman's offices are relatively new. Minimal funding. Able to respond to and take action on the worst offenses. Primary goal is probably to keep some of the litigation that might occur from clogging up the courts.

- Ombudsman's office is probably trained to respond on NRS only. It would be overwhelming for them to investigate into the particulars of every set of HOA docs.

- CM probably knows that Ombudsman's office is toothless when it doesn't have to do with NRS compliance, and they probably train their staff accordingly.

- Rather than frustrate yourself, inquire into what the Ombudsman does and doesn't do - Then decide whether they can help you in your inquiry or it's a waste of your time.

Your neighbors do. It's a political process, and their voices count, but only if you can get them interested in caring about the issues that you think are important.

Put together a petition saying that the vote should be reversed because it violated the notice rules. Go knocking on some doors of people you don't know. You'll learn soon enough whether people want to get behind you.

Best of luck.

Kind of like body cams on police officers. Things are changing slowly, but without those images, nothing at all would have been done.