should HOA declarations be allowed to require supermajority yotes (80–90%) to amend?
This a second of three posts dealing with amending a declaration. Part 1 addressing the mechanics of amending an HOA declaration in Nevada. This post deals with both sides of the argument around the question - should HOA declarations be allowed to require supermajority yotes (80–90%) to amend? It then calls for recalibration.
Arguments Against Supermajority Amendment Requirements
Governance Gridlock
High thresholds create practical deadlock, especially in large or aging associations where apathy, owner turnover, or unreachable absentee owners make 80–90% approval nearly impossible.
This undermines the HOA’s ability to modernize rules, address changed circumstances, or correct drafting errors.
Minority Veto Power
Supermajorities give small minorities disproportionate veto power over the majority's will.
This violates basic democratic norms where majority rule—especially with safeguards—is the standard for most civic decisions.
Contrary to the Public Interest
When declarations govern quasi-public aspects of life (infrastructure, open space, enforcement rights), excessive rigidity impedes adaptation to evolving health, safety, or fairness concerns.
Supermajority rules can prevent reforms needed to address discrimination, environmental concerns, or procedural fairness.
Declarant-Imposed and Non-Negotiable
These provisions are not negotiated by owners—they are unilaterally imposed by developers before a single home is sold.
Owners can’t meaningfully “consent” to governance terms they cannot change except by Herculean effort.
Encourages Workarounds and Litigation
Impractical amendment thresholds lead to increasing reliance on legal end-runs (like NRS 116.21175) or lawsuits eroding trust in HOA governance.
Arguments For Supermajority Amendment Requirements
Protection of Property Expectations
Declarations are long-term covenants that form the basis for purchasing decisions.
Owners buy into a set of rules with the expectation they will not be easily changed, especially regarding use restrictions, aesthetics, or density.
Stability and Predictability
High thresholds provide stability in governance and prevent frequent, disruptive rule changes driven by shifting political winds or new board majorities.
This can protect minority owners from capricious or retaliatory amendments.
Higher Thresholds Encourage Consensus
The supermajority requirement forces boards and owners to build broad coalitions and thoroughly vet amendments, resulting in better, more equitable rule changes.
Preserving the Original “Character” of the Community
Some argue that declarations are a “constitution” for the community and that high barriers to amendment protect its original vision, whether it be architectural uniformity or lifestyle-based governance.
Voluntary Purchase Argument
Advocates argue that owners voluntarily bought into the community, knowing (or having the opportunity to know) the rules—including the amendment process.
Middle Ground / Reform Proposals
A growing number of legal scholars, legislators, and reform advocates suggest a hybrid model:
Cap the amendment threshold by statute (e.g., no more than 67% unless for specific, narrowly defined purposes).
Allow judicial review of amendments falling short of supermajority thresholds, as Nevada does in NRS 116.21175- but provide more "guidance" and legislative intent.
Require that all amendment procedures be clear, accessible, and not unconscionably burdensome, with specific time limits, proxy rules, and quorum floors.
Closing Thought
In constitutional law, supermajorities serve to protect minority rights in public law. In HOAs, however, they often lock in developer-drafted private rules with no democratic origin, applied to people with little exit opportunity. Whether they preserve stability or enforce rigidity depends on the context—and increasingly, reformers are calling for a recalibration.[i]
Related NvHOAreform Blog Posts: Anti-SLAPP- what owners need to know; Delegation of Authority; HOA Owners under assault'; Declarant Control- misunderstood; and HOAs private or quasi-governmental
___________________________________________
[i] Restatement of the Law, Property (Third): Servitudes § 6.10 (2000), The American Law Institute notes that requiring very high supermajority votes for amending servitudes (like CC&Rs) may be “unreasonable and unenforceable” if they effectively prevent a community from functioning or evolving. Quote: "A rule that prevents needed change by making it too difficult to amend a servitude may be contrary to public policy."
UCIOA (Uniform Common Interest Ownership Act) 2008 Revisions – § 2-117 Comment; While not mandating a specific vote threshold, the comments to UCIOA suggest concern that overly strict amendment requirements can undermine the adaptability of common-interest communities. Quote: "Unreasonably high requirements for amendment may have the practical effect of making change impossible."
Susan F. French, "The Role of the State in Private Property Associations," 38 U.C. Davis L. Rev. 1027 (2005), Quote: "The high threshold required to amend these documents often prevents any change, no matter how urgently needed."
Paula A. Franzese, "Privatization and Its Discontents: Common Interest Communities and the Rise of Government for 'the Nice'," 37 Urb. Law. 335 (2005); Quote: "The amendment provisions often require supermajority or even unanimous consent, effectively insulating the status quo from democratic correction."
Nevada Legislative History – NRS 116.21175 (2005), Legislative commentary emphasized the need to allow functional reform while protecting owner rights—a classic recalibration.
CAI (Community Associations Institute) have acknowledged that many associations struggle to amend governing documents and have published guidance advocating for clearer and more practical amendment processes.
