Editor’s Note: This post is part of NVHOAReform’s ongoing series on the urgent need for HOA governance reform.
Most Nevadans do not spend their evenings reading statutes or court opinions. But if you live in one of the state’s many homeowners associations - and either have, or can see yourself having, a dispute with your HOA- what the Nevada Supreme Court says about dispute resolution matters to you in ways that are both immediate and profound. It determines whether you have any realistic chance to hold your board accountable. It decides whether you can afford to challenge a violation of law or governing documents without putting your home and savings at risk. And it governs whether Nevada will provide the fair, inexpensive forum that lawmakers promised, or whether homeowners will be forced back into costly civil court where prevailing-party attorney fee clauses turn every disagreement into a life-altering gamble.
This post extends earlier posts Nevada Knows Fee-Shifting Is Dangerous — But Uses It In HOAs and Danger: private regulatory enforcement Nevada Supreme Court Ignores the Law on HOA Disputes—Become Policy Makers in Robes focusing on what the Court left unsaid in its most recent ruling.
In June 2025, the Court issued a decision in Kosor v. Southern Highlands Community Association that at first glance seemed narrow and technical. The Court held that NRS 38.310 — the decades old statute requiring homeowners and associations to submit disputes to mediation or arbitration before going to court — was not a jurisdictional prerequisite but instead a waivable "claim-processing rule". To most readers, this looked like a procedural clarification. But in truth, the case carries much deeper implications for homeowners, lawmakers, and Nevada’s system of checks and balances.
For those interested in the legal record itself and/or a review by others, you can read the full Nevada Supreme Court ruling at the center of this issue here in JUSTIA or FindLaw.
1. Redefining “Mandatory” into Waiver
NRS 38.310 says in plain terms that "no civil action" may be brought until ADR has been used. The "court shall dismiss". The statute even calls the requirement “mandatory.” Yet in Kosor, the Nevada Supreme Court concluded that “mandatory” does not make ADR jurisdictional- that is, the court can not rule. Instead, the Court treated the statute as a waivable claim-processing rule: unless a party objects, litigation can proceed in court with no mediation or arbitration at all.
If a lower court had taken such liberty with statutory text, the Supreme Court itself would almost certainly have reversed. By treating a clear statutory command as optional, the Court’s reasoning clashes with both legislative intent and the plain meaning of the words the Legislature chose. In effect, the Court elevated its concern about avoiding ‘do overs’ above the Legislature’s command, leaving homeowners uncertain whether statutory protections will be applied as written.
The Court said it was worried about “do overs” — having to restart lawsuits if ADR wasn’t done first. But lawmakers already solved that problem. The statute required an affidavit showing ADR was completed before a case could even begin. That made the court a simple gatekeeper, not a manager of disputes. If “do overs” happen, it’s usually because of judicial error, not because ADR was mandatory. By using “do overs” as an excuse, the Court treated its own potential mistake as a reason to set aside the Legislature’s clear rule.
For decades, Nevada law was understood as simple: no mediation, no litigation. (See No Mediation, No Litigation — The Law Until Recently) Kosor marked a sharp departure from that settled understanding.
2. Silence on Legislative History
Equally troubling is the Court’s silence on legislative history. In filings, Kosor pointed to multiple legislative records that made the Legislature’s intent clear: ADR was meant to be a genuine prerequisite to court. Nevada courts can look at legislative history when a statute isn’t clear, and in practice that’s the normal way judges figure out what lawmakers meant. But in Kosor, the Court skipped that step entirely. By sidestepping it, the Court left homeowners with fewer protections than the law promised. That silence suggests less oversight than avoidance — and it raises serious separation-of-powers concerns.
For readers interested in how legislative history has been overlooked in other HOA contexts, see Breaking the Silence in HOA Governance: An NVHOAReform Series soon to be released.
3. Vagueness and Lack of Direction
Even as it insisted ADR was “mandatory,” the Court gave no real content to that requirement. The opinion suggested ADR should happen “at some point” but did not define when or how. Is dismissal the remedy? A stay? The opinion left these questions and more unanswered. This vagueness provides no guidance to homeowners, HOAs, or district courts, and creates fertile ground for inconsistent rulings and higher costs.
4. Gamesmanship and Asymmetry
The ruling also opens the door to strategic abuse. By making ADR waivable, the Court gave sophisticated litigants — typically developers and associations with counsel — the chance to withhold the objection and raise it only when advantageous. Average homeowners, too often having no choice but to represent themselves, are unlikely to use or even understand this tactic. The imbalance favors institutions over individuals and undermines the Legislature’s goal of making dispute resolution accessible and affordable. Recall, the objective was to stay out of the courts- not make it easier to drag opponents in- where the advantage shifts to deep pockets.
For more on how boards can use process as a weapon, see HOA Boards – “The Right to Be Wrong” But Not To Be Abusive
A Personal Note
I cannot separate myself from this ruling. I am Kosor — the petitioner whose name is now attached to the Court’s decision. That makes the dispute personal in a way I cannot avoid. There is little that can be done to change the result for me. My concern in writing here is not to embarrass the Court, nor to relitigate what has already been decided. My aim is different: to show why reform is needed so that Kosor v. Southern Highlands does not become a permanent feature of Nevada law, but rather the last time a homeowner is left vulnerable because of a statutory gap the Legislature never intended.
For readers who want the broader context of my experiences, see $500K Fight for My Rights as a Nevada Homeowner soon to be released.
Why It Matters
Nearly half of Nevadans live in common-interest communities governed by Chapter 116. For them, the Kosor ruling is not a technical footnote — it affects how every dispute with an HOA can play out. By ignoring legislative history, redefining statutory language, and leaving critical questions unanswered, the Nevada Supreme Court weakened a system designed to protect homeowners from costly, unnecessary litigation. I have come to expect power and influence in our Legislature. But in our courts? I can only hope that is not the case here.
This is why ADR reform must be the Legislature’s priority. Nevada once promised an expeditious and inexpensive forum for HOA disputes, but that promise has been eroded over time. Kosor is simply one example of how courts have drifted away from legislative intent.
The solution is clear:
Require all HOA disputes — statutory and contractual — to go through Division-administered ADR (Putting Owners First: A New Framework for HOA Dispute Resolution).
Close the loopholes that invite litigation (Cost-Shifting HOA Justice: Time to Draw the Line).
End the private right of action for statute enforcement.
Without reform, homeowners remain exposed to catastrophic fee liability and governance disputes remain hostage to costly courtroom battles. With reform, Nevada can restore the balance: a system where accountability is possible, disputes are resolved fairly and affordably, and homeowners are no longer silenced by the threat of financial ruin.
For NVHOAReform, Kosor underscores the urgency of legislative action. Nevada homeowners deserve the protections they were promised — clarity, fairness, and a dispute system that puts resolution ahead of ruin.
