Nevada homeowners are often told they have “rights” when disputes arise with their homeowners association. In practice, however, the system routinely denies them any realistic path to have those rights meaningfully evaluated.
This failure is not because homeowners’ claims lack merit. It is structural. Most HOA disputes are not about money damages, but about interpretation and compliance with governing documents—CC&Rs, bylaws, and rules that bind homeowners as servitudes on their property. Yet Nevada’s dispute-resolution framework forces these governance disputes into forums that cannot resolve them, ultimately destined for civil litigation so costly and risky that most owners rationally abandon their claims before a neutral ever examines the issue.
Although the system appears to offer alternatives to court, those alternatives are ill-suited to interpretive disputes and easily avoided by institutional respondents. The result is not early resolution, but early exit. The merits remain unexamined not because homeowners are indifferent, but because the only viable path to clarity requires incurring litigation risks that far exceed the stakes of most disputes.
Nevada already has the solution. What it lacks is not legal authority or institutional capacity, but a functional pathway to reach it—one that was expressly contemplated by lawmakers in 2013, but ultimately defeated amid industry opposition to allowing the Ombudsman to direct disputes into referee review absent mutual consent.
Two Dispute Paths — and a Critical Gap
HOA disputes in Nevada fall into two fundamentally different categories, each governed by a different system.
First are statutory disputes—alleged violations of NRS 116 or related statutes. These matters fall within the jurisdiction of the Nevada Real Estate Division (NRED) and the Office of the Ombudsman, which may investigate, impose penalties, or seek enforcement. Structurally, the framework is sound and includes an unusually valuable feature—rare among common-interest community regulatory models nationwide—an independent adjudicatory body, the Commission for Common-Interest Communities and Condominium Hotels (CICCH). Where deficiencies exist, they are largely operational.
Second are governance and contract disputes—questions about the meaning, scope, or application of CC&Rs, bylaws, and rules. These are not regulatory violations. They are interpretive disputes over governing documents that run with the land and bind homeowners as servitudes. For these disputes, the civil justice system is the only avenue for a binding resolution.
The Reality of Civil Litigation
Whether we like it or not, most practitioners will acknowledge that modern civil litigation is rarely about who is right or wrong. It is an assessment of who is able—and willing—to bear the financial risk of proceeding.
In HOA governance disputes, that calculus is almost never neutral. Associations litigate with assessment-funded budgets and institutional counsel. Homeowners litigate alone. As a result, the outcome of many disputes is shaped less by the merits of the governing documents than by asymmetrical risk tolerance—an imbalance that predictably discourages homeowners from pursuing even well-founded claims.
Arguably in recognition of this reality, Nevada lawmakers enacted an Alternative Dispute Resolution (ADR) program intended to divert governance disputes before they rise to full-scale civil litigation. In practice, however, that system is structurally flawed. Mediation cannot resolve interpretive disagreements without mutual consent, and arbitration or referee review may be avoided entirely by a respondent’s refusal to participate. As a result, the system does not meaningfully divert governance disputes from court—it merely delays or deters them without resolving the underlying issue.
The consequence is that homeowners facing governing-document disputes are left with a single route: typically, futile mediation followed by prohibitively risky litigation. Predictably, the merits of many disputes remain unexamined not because a neutral forum is unavailable in theory, but because access to it is functionally blocked.
What the system lacks is not an alternative to litigation, but a non-vetoable path to a neutral merits evaluation before litigation risk attaches.
The Overlooked Solution: A Referee Program That Already Exists
Contrary to common belief, Nevada does not need to invent a new process.
The Legislature already incorporated a referee program into Nevada’s ADR statutes in 2013 (NRS 38.300–.360). The referee program:
Is administered by the Division
Produces a written, reasoned evaluation of the dispute
Is nonbinding and advisory
Includes a modest damages cap
Cannot award attorney’s fees
Under the structure contemplated by lawmakers in 2013:
A claimant files an Intervention Affidavit.
The Ombudsman screens the matter.
If unresolved:
Statutory issues proceed to Division investigation under NRS 116.745.
Governing-document disputes are administratively assigned to the referee program for neutral merits review.
Opposition in 2013 focused not on the referee program itself, but on assignment authority—specifically, whether the Ombudsman could direct disputes into referee review when the parties did not mutually agree on mediation or arbitration. That authority was never implemented, leaving the referee program largely unused.
Why the Referee Program Should Be the Default
The referee program is uniquely suited to serve as the mandatory fallback for governance disputes because it:
Produces a written, reasoned evaluation of the dispute
Is faster and dramatically lower-cost than arbitration or district-court litigation
Avoids constitutional concerns because determinations are advisory and nonbinding
Preserves access to the courts—any party may still seek judicial resolution
Reflects the Legislature’s long-standing objective of providing homeowners access to neutral interpretation without prohibitive expense
In short, it supplies what the current system lacks: a low-risk, low-cost means of determining whether a governance dispute has merit before prevailing-party attorney-fee exposure attaches.
Importantly, the referee program relies entirely on existing statutory authority and administrative infrastructure, requiring no expansion of agency jurisdiction, no new enforcement powers, and no additional strain on judicial resources.
No Expansion of State Power; No Loss of Rights
This reform does not:
Mandate binding adjudication or final administrative orders
Close the courthouse doors
Expand the Ombudsman’s jurisdiction over CC&R interpretation
Prohibit parties from retaining legal counsel
It simply restores a structured process allowing governing-document disputes to receive neutral evaluation rather than forcing homeowners directly into civil litigation or leaving disputes unresolved.
Why a “Nominal” Change Has Foundational Impact
Removing a respondent’s ability to veto referee review may appear modest. Its impact is not.
Under the current structure, a party may avoid any neutral evaluation by declining arbitration or referee review, thereby forcing the matter into mediation—which cannot resolve interpretive disputes. This dynamic creates a structural pressure point that allows cost, delay, and prevailing-party fee exposure to chill access to any merits determination.
Legislative testimony across multiple sessions reflects the same pattern: only a small fraction of governance disputes ever reach court—not because the system resolves them early, but because the cost and risk of litigation deter homeowners from pursuing a ruling at all. The merits remain unexamined not due to apathy, but due to rational avoidance of financial jeopardy.
Why a Referee Determination Changes the Dynamic
A written referee determination—even though nonbinding—supplies what the system presently lacks: an impartial evaluation of the parties’ rights and obligations.
Once a neutral has clarified the merits, an association’s fiduciary duties become operative in a way they are not today. A board choosing to disregard such a determination must demonstrate that its decision reflects reasoned and informed judgment, not predisposition or strategic avoidance of scrutiny. The focus shifts from power to process.
At the same time, the effect is reciprocal. A written referee determination forces even the most passionately held homeowner grievance into reconsideration. When a neutral evaluator explains why a claim lacks merit—or identifies its limits—the homeowner is no longer operating without a neutral assessment. Emotional momentum gives way to a concrete evaluation of risk, likelihood of success, and proportionality.
In that posture, litigation becomes a deliberate choice rather than a reflexive response. Many disputes naturally stop short of court once the risks of escalation are understood. The referee determination functions as a stabilizing mechanism: it filters out weak claims, sharpens strong ones, and prevents either party from advancing based on assumption, indignation, or strategic leverage alone.
The result is not suppression of claims, but rational sorting. Disputes that should end do end. Those that warrant judicial resolution proceed on a clarified record, with both sides fully informed of the risks they assume by continuing.
Conclusion
This reform does not alter substantive legal rights. It corrects a broken incentive structure.
It does not favor homeowners over associations. It favors merits over maneuvering.
Nevada already built the tool.
It is time to let homeowners reach it.
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Read the Policy Paper
The full NVHOAReform policy paper documents the history, failures, and proposed fix in detail, with statutory analysis and legislative context. It is written for policymakers, regulators, and informed homeowners who want more than incremental tweaks.
If Nevada is serious about finishing the work it began in 2003, the question is no longer whether reform is needed—but whether lawmakers are willing to correct a system that fails precisely where neutrality matters most.
