Nevada HOA Boards can take any action, to include approval of major contracts, without meeting or providing advance notice to owners. But should they? In my opinion this provides an unguarded door to abuse that for too long has been in need of closure. This post is a second in a series intended to spotlight the many places in Nevada law where distance exists between what laws seek to accomplish (statutory intent) and what is allowed to occur in HOAs (operational practice).
Nevada law mandates that homeowners association (HOA) boards provide notice of meetings to promote transparency, accountability, and homeowner participation in community governance. This is not required of corporations. Rather, these requirements are rooted in the principles of public-sector open meeting laws. They are codified in NRS 116.31083 and related provisions of NRS Chapter 116.
But what if your HOA directors simply do not hold a "meeting" - for instance, to avoid a controversial issue or desire limited disclosure- and make decisions outside of a meeting. Is that allowed? Yes, according to the Nevada Real Estate Division (NRED), despite its toothless qualification: "the Division discourages use of such action in lieu of a meeting unless absolutely necessary (i.e. pipe burst, fallen tree)" (see slides pg 25 & 26).
NRS 116 does not address Directors making decisions outside of a meeting (see more on what is a "meeting" here). As a result, the law defaults to NRS chapter 82 - dealing with non-profit corporations or the governing documents of the HOA. Here, I see statutory intent, as previously noted, and actual practice diverging. Is this by design or oversight? In any case, it needs to be addressed.
The absence of direction permits the use of procedures under an association's governing documents—documents written exclusively by developers, not homeowners. The covenants, conditions and restrictions (CC&Rs) and bylaws, often provide boards with broad discretion to act outside of formal meetings. A standard clause typically reads:
Action Taken Without a Meeting: The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting, by obtaining the written approval of all Directors*. Any action so approved shall have the same effect as though taken at a meeting of the Directors. (* some only require a majority)
If the HOA's governing documents are silent, NRS 82.217 provides the following:
“... any action required or permitted to be taken at any meeting of the board of directors ... may be taken without a meeting if, before or after the action, a written consent thereto is signed by a majority of the board of directors or the delegates or of such committee.”
These provisions can be used to circumvent public deliberations and shield board actions from homeowner oversight.
The NRED has long acknowledged the risks. It writes in education information "a vote via email or possibly another method may not satisfy the fiduciary duty of a board member, thus these methods of voting for members of an executive board is greatly disfavored... " (see slides pg 25 & 26).
Yet, no material penalties or regulatory mechanisms are in place to deter abuse. Why? Should not NRED address this disconnect? What about the CICCH Commission who is tasked to "adopt regulations and conduct disciplinary hearing." Until something is done, Boards face little to no consequence for "sidestepping" holding open meetings when making decisions, even in non-emergency situations.
The result is an unguarded door to abuse that can have material consequences. Homeowners can be denied the right to be informed, to engage, or to object—before decisions with significant financial or policy impact are made.
If a board feels compelled to act outside of a meeting—for example, by email—it should first ask: How are homeowners being given the opportunity to weigh in before a final vote is taken?
Here are two simple suggestions they could use:
Send a broadcast email to all owners outlining the proposed action and soliciting input before a board vote occurs;
Discuss the item in an open meeting, include it on the posted agenda, and allow for owner input—then, if needed, finalize the decision by email afterward.
Some will argue this is unnecessary—“No one will respond,” they say. Sadly, in many cases that may be true. Apathy is a real issue in HOAs. HOA homeowners become their own worst enemy when they stop demanding their rights. Over time, those rights calcify and effectively vanish.
It’s time to assert owner rights, close this loophole, and demand better.
Until the Nevada Legislature or our Regulator acts, HOA boards should be mindful of Nevada’s clear legislative intent: to ensure owner participation and transparency in decision-making- but huge loophole for abuse. Governance—especially when it mimics governmental functions—must not take place in the shadows- even if no one seemingly cares.
The Nevada Real Estate Division and if necessary the Legislature, must revisit this issue and reconcile its intent for open meetings with the private provisions in governing documents that currently serve to nullify them.
