Nevada's New HSW Rules Let HOA Boards Punish Their Critics
Nevada’s lack of a clear statutory right to criticize an HOA has become a serious owner-protection problem. Now the Nevada Real Estate Division (NRED) and the state’s HOA Commission may have made that problem considerably worse with the new and dangerous health, safety and welfare regulation. Read more at our post: A Dangerous New HOA Weapon — and Owners Are the Target.
One question should concern every Nevada HOA owner:
Can a board take speech that is harsh, persistent, even insulting or upsetting, characterize it as “harassment,” and then bootstrap it into a health, safety and welfare violation carrying fines with no statutory limit?
A Speech Label Used To Bootstrapped Into an HSW Fine
Nevada law already tells us something important about harassment. NRS 116.31184 prohibits a unit owner, director, community manager and certain others from willfully and without legal authority threatening, harassing or engaging in a course of conduct that causes harm or serious emotional distress, creates reasonable apprehension of such harm, or creates a hostile environment. A violation is a misdemeanor.
But here is the part that deserves much more attention. A later section of the law NRS 116.745 defines the “violations” NRED may investigate and the CIC Commission may act upon. It expressly includes violations of Chapter 116 except NRS 116.31184.
In other words, the Legislature specifically carved statutory harassment out of the administrative violation process. Yet Nevada has now approved an HSW regulatory structure under which an HOA board may characterize similar conduct as a violation of its governing documents and impose enhanced civil fines.
That is an extraordinary place to leave owners.
When Criticism Becomes “Harassment"
Consider this scenario. A Nevada owner posts on Nextdoor that directors are wasting association money, protecting management and refusing to answer legitimate owner questions. The posts name directors and urge neighbors to vote them out.
It is not flattering to the association.
The directors say the repeated posts are intimidating and harassing. The association characterizes the conduct as a health, safety and welfare violation and begins imposing enhanced fines until the posts are removed and a correction or retraction is published.
What does the owner do? The owner says: “You are punishing me for criticizing you.”
The board responds: “No. We are fining you for harassment.” That distinction can determine everything.
Nevada has no equivalent in Chapter 116 to California Civil Code 4515, which expressly protects an owner’s right to use social media and other forums to discuss association governance, elections, legislation and other matters of concern to owners. [1] So the Nevada owner has no simple Chapter 116 statute to hold up and say: “You cannot punish me for this speech.”
Nevada law does provide another potential protection. In Kosor v. Olympia Companies, the Nevada Supreme Court considered criticism of an HOA developer and manager made at community meetings, during an HOA election campaign and on Nextdoor. The Court held that the communications concerned issues of public interest and were made in public forums for purposes of Nevada’s anti-SLAPP law. That is important. But it is not the same protection California gives HOA owners directly in its HOA statutes. We return to that distinction below.
For now, focus on the labeling problem: Criticism becomes “harassment.” Persistent questions become “intimidation.” And now, potentially, conduct can be labeled a health, safety and welfare violation carrying enhanced fines and other consequences.
The owner may ultimately have strong legal arguments.
But that is not the same thing as having a clear law that prevents the association from taking the action in the first place. Then What Does the Owner Do? If the owner disagrees with the fine, the practical answer may eventually become: Challenge it.
That can mean litigation. And that is a powerful disincentive.
That Is a Powerful Disincentive
Moving the dispute into civil litigation gives an HOA board an enormous practical advantage—and it is one reason NVHOAReform strongly discourages owners from viewing litigation as a solution. The owner hires a lawyer with personal money and pays the litigation expenses personally. Worse, Nevada law adds another risk. Under NRS 116.4117, a court may award reasonable attorney’s fees to the prevailing party in a civil action involving a "violation" of Chapter 116.
That means an owner challenging an HOA fine may risk not only paying his or her own attorney, but also being ordered to pay the association’s attorney’s fees if the challenge fails. A protracted HOA case can consume tens or even hundreds of thousands of dollars on each side.
The directors do not personally finance the defense of their decision. The association hires counsel and pays the bills with association money—including assessments collected from the very owner challenging the board. One side risks personal savings. The other spends association money. And the owner may face the added possibility of paying the association’s legal fees too.
That financial imbalance can resolve the controversy long before a judge ever determines who was legally correct. An owner can believe the board is plainly wrong and still rationally conclude that deleting a post, publishing the demanded retraction or simply remaining silent costs less than proving it in court.
That is how speech can be chilled without anyone ever obtaining a court order prohibiting it. And this is where owners need to read between the lines of the protections they are told they have.
“You can sue” may be legally accurate. So may “you can file a complaint,” “you can mediate,” or “you have anti-SLAPP protection.” But those statements do not tell an owner whether the regulator will decide the issue, whether mediation will produce an answer, whether the owner can afford the litigation, or whether the financial risk itself will end the dispute before anyone ever decides who was right. We explored that broader problem in What Nevada HOA “Protections” Leave Out.
The lesson here is simple: the stated protection is only the beginning. What happens next often determines what that protection is actually worth.
The New HSW Regulation Raises the Stakes
This problem existed before R091-25. The new health, safety and welfare regulation makes it more consequential because an HSW classification can expose an owner to enhanced enforcement.
Earlier versions of the proposed regulation recognized the danger. Even the noticed draft expressly stated in subsection 2 that a violation did not constitute an imminent HSW threat when its sole basis was vulgar, profane or abusive language or speech supporting or opposing matters affecting the community. Those provisions demonstrated that the regulators themselves, at least some, understood the need to separate ordinary community speech—even unpleasant speech—from conduct sufficiently serious to justify extraordinary HSW treatment.
But during the September adoption process, the Commission removed significant limiting language from Section 2. That makes the labeling problem even more important.
A board does not have to announce: We are fining you because you criticized us. It can say: Your criticism became harassment. Now the controversy is no longer supposedly about criticism. It is about the label placed upon it.
Nevada Law Creates a Strange Result
This is where NRS 116.31184 and NRS 116.745 deserve particular attention. Nevada has a statute specifically addressing threats and harassment within common-interest communities. It establishes a serious standard and makes violations criminal misdemeanors.
As noted in the open, the Legislature expressly excluded NRS 116.31184 from the definition of a “violation” used for NRED investigations and Commission enforcement. That suggests the Legislature did not want NRED and the HOA Commission to have administrative jurisdiction adjudicating statutory harassment. Yet under the new HSW structure, an individual HOA may potentially reach much of the same territory indirectly by characterizing conduct under its governing documents and imposing enhanced fines.
That raises an obvious question: Why should a volunteer HOA board have greater practical power to adjudicate and punish alleged harassment than Nevada’s HOA regulator has under the statute specifically governing harassment?
At minimum, that question deserved a clear answer before the Commission expanded HSW enforcement authority.
California Chose a Different Starting Point
California Civil Code § 4515 expressly protects homeowner communications concerning common-interest community matters, including the use of social media and other online resources to discuss HOA elections, legislation, association governance and other community issues. That does not immunize threats, stalking, defamation or genuinely unlawful harassment.
It does something much more basic. It establishes that communicating about HOA governance is protected activity before the dispute begins. A California owner facing an enforcement action over criticism therefore starts with an express statutory protection.
A Nevada owner does not have an equivalent provision in Chapter 116.That changes the practical burden. Instead of the association first confronting a statute protecting the owner’s criticism, the Nevada owner may have to prove that directors improperly transformed criticism into punishable harassment. Given the courts protections for the business judgment of directors, that proof is almost impossible.
Anti-SLAPP Is Not the Same Protection
Nevada does have anti-SLAPP protections, and Nevada courts have recognized that speech concerning HOA governance and elections can involve matters of public interest.
But anti-SLAPP law primarily provides protection when litigation is brought because of protected speech. Our hypothetical owner has not necessarily been sued. The HOA has already acted. It has imposed the fine.
The owner must now decide whether to spend personal money challenging it. That is fundamentally different from a statute telling an HOA at the outset that protected owner criticism cannot be prohibited.
Nevada Should Fix the Gap
The issue is not whether every angry Facebook or Nextdoor post should be protected. It should not. Threats are not criticism. Stalking is not criticism. Genuine harassment is not criticism.
The issue is who gets to draw that line, under what standard, and with what safeguards.
Nevada should not permit the board being criticized to characterize protected criticism as harassment, invoke extraordinary HSW enforcement authority and then tell the owner to spend personal money in court if the owner disagrees. California has drawn a clearer line protecting owner communications concerning HOA governance. Nevada should examine doing the same.
And Nevada still needs meaningful guardrails around the extraordinary HSW fines it has authorized. Until those protections exist, the safest course would be not to permit enhanced HSW fines to become a substitute system for adjudicating alleged harassment.
A right an owner can protect only by risking thousands of dollars in fines and tens of thousands more in legal fees is very different from a right the Legislature has expressly told an HOA it must respect.
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[1] California Civil Code § 4515—sometimes described as an HOA “Political Bill of Rights”—first took effect January 1, 2018. It gave owners and residents express rights to peacefully assemble, canvass, petition and distribute information about HOA and other public-interest matters. California later strengthened the law through AB 1410, effective January 1, 2023, by expressly protecting the use of social media and other online resources to discuss HOA matters even when the content is critical of the association or its governance, and by prohibiting retaliation against owners who exercise those rights.
