Full Disclosure- The author of this post is the named party in the case. He/I am not an attorney and this is not legal advise. It is to inform and appeal for action. The ruling referenced will cost me significant legal fees and set back the release of my community of nearly 10,000 owners from the developer's control- now 25 years and counting. But the post is not about me , my HOA, or limited to HOAs as a class. It is about all Nevadans and eerily similar to national issues. Plus, I hate to let a good tragedy-mine- go to waste. Hopefully readers will benefit. Let me know.
Introduction
The Nevada Supreme Court’s (NSC) 2025 ruling in Kosor v. Southern Highlands Community Association (Case #87942 ) has done more than reinterpret a statute intended to protect home owners—it has redrawn the lines between the powers of the Legislature and the judiciary. And unless corrected, the damage may not be confined to HOA law.
At the heart of the case was NRS 38.310, a good law that requires parties to go through alternative dispute resolution (ADR)—mediation or arbitration—before they can file a lawsuit over common-interest community disputes. The statute couldn’t be clearer:
“No civil action… may be commenced… unless the action has been submitted to mediation or arbitration.”
“The court shall dismiss any civil action… commenced in violation of [this requirement].”
In Nevada as in other jurisdictions legislatures can mandate judicial duties.[i] Yet, the Court decided that this plain directive, including the Legislature’s explicit command that “the court shall dismiss,” while “mandatory” said the Court, is not mandatory?? NRS 38.310 is merely a claim-processing rule—effectively recasting a mandatory obligation on the court as an optional step that depends on whether a party objects in time- says Nevada's highest court.
Although the Court acknowledged that "magic words" are not necessary to denote jurisdictional status- e.g. mandatory to confer authority to act- it nevertheless rejected the statute’s mandatory language and failed to articulate any standard by which the Legislature might convey its intent in future enactments. In so doing, the Court has not merely overlooked legislative authority—it has actively displaced it.
Had the legislature wanted ADR to be waivable based on some criteria, it would have so stated and provided the criteria - which it has done in many other statutes. But it did not for NRS 38.310.
Understandably, some judges and court systems are reluctant to accept mandatory dismissal rules that interfere with discretionary case management. Each branch of government depends on the others for critical functions—funding, appointments, or legal authority. This in turn motives officials to defend their prerogatives. This adversarial stance was not intended to create dysfunction- rather, as an engine of constitutional stability. But Kosor - as argued below- was a policy preference, not a legal justification. Courts are supposed to follow legislative directives, not reweigh them. At end, if a statute says “the court shall dismiss,” and the court doesn’t, what is left of legislative control over judicial procedure?
Don’t Seek or You May Find
When courts refuse to consult legislative purpose in order to avoid applying it, they do not interpret the law—they substitute their own.
If it's undisputed that the Legislature has the authority to restrict court jurisdiction —particularly through mandatory directives like “shall dismiss”—then what exactly was the obstacle? The issue seems to be that the Court, in Kosor, never examined the legislative history.
In Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), the Supreme Court held that claim-processing rules are not jurisdictional unless Congress “clearly states” they are. Nevada adopted this reasoning in Otak Nevada, LLC v. Eighth Judicial Dist. Ct., 129 Nev. 799, 312 P.3d 491 (2013), holding:
“Absent a clear indication that the Legislature intended to limit subject matter jurisdiction, a statute is presumed to set forth a claim-processing rule.”
It sets a high bar- and exactly what lawmakers intended to do in crafting NRS 38.310. In legislative hearings spanning multiple sessions, lawmakers were clear: ADR “was the only way to get through the courthouse door”. ADR was “mandatory” and “prior to commencement of civil action in court” – just a few of the remarks recording the intent of the Legislature.
The opposition’s argument in Kosor was NRS 38.310 does not contain the words “subject matter jurisdiction”, nor does it say courts are “without jurisdiction.” It speaks in mandatory terms, yes — but so do many procedural statutes, including statutes of limitations or filing deadlines, which are routinely held waivable.
A New, Dangerous Threshold
When examining a statute, courts ascribe plain meaning to its words, unless the plain meaning was clearly not intended. When statute phrasing could have multiple meaning or is ambiguous, Courts use context and legislative history, not just phrasing. They seek intent. These are very old and trusted precedent used routinely by courts around the country. The problem with Kosor isn't the Court considered legislative intent and rejected it—it’s that the Court avoided the question entirely, relying instead on its own interpretive framework to sidestep a clear statutory command.
Furthermore, statutes with a protective purpose - like NRS 38.310 requiring pre-suite arbitration where HOA CC&Rs are involved- should be liberally construed in order to effectuate the benefits intended to be obtained- to protect homeowners. This too is a long held practice mandated by the NSC- and it ignored.
This may seem subtle or "discretionary" -- its not -- and the consequences are profound. In practical terms, the Court has made it harder for the Legislature to place mandatory preconditions on litigation—and easier for courts to disregard them.
While Courts must interpret statutes, they must also respect them. In reaching its ruling in Kosor, Nevada’s high court acknowledged the phrase “the court shall dismiss” is mandatory. But it did not over-rule the lower court's action. Rather, it asserted – without support-that NRS 38.310 “speaks to the parties’ obligations, not the court’s authority”. Was this an oversight or avoidance?
The distinction makes a difference, not just in Kosor but all Nevadans. The Court said the law doesn’t remove jurisdiction from the court—it merely adds a procedural step that can be waived if no one raises it in time. Here’s the problem: the statute does speak to the court’s authority – commanding it “shall dismiss”. And almost every mandatory precondition to filing suit involves the parties doing something—submitting a claim, attending a hearing, providing notice, or pursuing mediation. That doesn’t make the requirement any less binding. It simply reflects how statutes work: they impose obligations on people- and courts- which in this case, limits the power of the court to act if those obligations aren’t met.
To say a statute doesn’t affect jurisdiction just because it tells the parties what to do is like saying a court can hear a tax case before taxes are due, or rule on a contract before the contract exists—so long as no one objects fast enough. It turns mandatory legal safeguards into optional suggestions.
Even more troubling, this approach gives judges tremendous leeway to decide when legislative language “really means it.” The Legislature said:
“No civil action may be commenced unless… submitted to mediation or arbitration.”
“The court shall dismiss…”
But according to the Court, unless the law specifically says the court lacks jurisdiction, those commands can be brushed aside. This creates a dangerous guessing game—especially for HOA homeowners. Most are not lawyers. Many can’t afford one. They rely on the plain meaning of statutes to protect their rights and guide their actions. When the Legislature says “the court shall dismiss” a case filed without mediation or arbitration, homeowners understandably believe the court must follow.
Nevada's highest court's ruling shifts that burden: now homeowners must know when and how to raise objections, or risk forfeiting protections the statute was supposed to guarantee. This turns what was meant to be a clear gatekeeping rule into a procedural trapdoor—one that favors well-funded associations and their attorneys over everyday residents simply trying to assert their rights.
If plain text supported by lawmaker intent isn’t enough, what is?
Judicial Duty, Not A Waivable Requirement
Support for the Court’s interpretation (from the HOA industry, defense attorneys, or courts favoring procedural flexibility) generally focus on justifying the disconnect between NRS 38.310’s mandatory language (“the court shall dismiss”) and the court’s decision not to enforce it sua sponte – "of its own accord" or "on its own motion” - relying on three core assertion:
Courts are not obligated to investigate facts not presented in the pleadings. Therefore, “shall dismiss” is triggered only when the noncompliance is clearly established and not disputed.
While NRS 38.310 is mandatory, it doesn't contain jurisdiction-stripping language, so it's a procedural defect — like failing to exhaust administrative remedies or missing a filing deadline — not a defect that renders the judgment void.
Unless the defect is truly jurisdictional, courts must prioritize finality and timely assertion of rights — even if it means the court overlooked a statutory command.
There are viable reasons for these court rules. But are they applicable in Kosor? The argument ignores the structure and clear legislative intent behind NRS 38.310 seemingly indented solely to preserve judicial protections. In layman's term- the court asserts its not my job to find reasons to dismiss. "You need to inform me. Then I will rule."
But lets look at how the law reads. It contains two linked mandates: one aimed at the parties (“no civil action may be commenced”) and one explicitly directed at the court (“the court shall dismiss”). Lawmakers never suggested that objections were necessary or that a time limit determined enforcement. The statute was crafted to automatically govern the court's conduct. It obligates court action- to dismiss. The Legislature issued a direct and unequivocal instruction to the judiciary. By converting it into a waivable procedural preference, asserting it was not its job, the Court nullified that command.
The Court not only misunderstood the statutory architecture—it violated it. When a law mandates that a court “shall dismiss” a noncompliant action, ignoring that instruction is not merely an error of judgment or discretion, as the courts prefer; it is a failure to follow the law. The Legislature did not grant the judiciary discretion here. It imposed a duty. The Court’s failure to act was not just a procedural lapse—it was a breach of statutory responsibility.
In the end, this standard puts the power to ignore mandatory statutes in the hands of the very institution those statutes are meant to guide—the courts themselves.
Why Homeowners Should Care
You might be asking: “Why does this legal back-and-forth matter to me as a homeowner?” Here’s why:
NRS 38.100 was a deliberate effort to level the playing field for Nevada owners. HOA-related litigation often involves one-sided power dynamics, where well-funded and professionally advised associations or industry players face off against individual homeowners lacking experienced representation- try finding an experienced HOA attorney to represent an owner- almost impossible. By mandating early ADR and assigning enforcement responsibility to the court, lawmakers sought to limit procedural exploitation and power differentials to ensure access to justice was properly considered and not contingent on legal sophistication or deep pockets.
This ruling removes one of the few legal protections Nevada homeowners have against abusive or premature lawsuits. In fact, it’s one of the only tools homeowners have to avoid being dragged into costly litigation- targeting them or by their HOA- over minor disagreements or technical rule violations. So, what does that mean in real life?
If parties skip ADR the court need not act to throw out the case—even if the law says they "shall"- and even if your HOA has used the disqualification in the past to its advantage.
If targeted and your attorney doesn’t know of this law and/or doesn’t object early enough, you can lose that protection entirely. And yet the Court gave no firm answer as to what “early enough” means. It could mean before filing an answer, before discovery begins, or before a hearing--leaving parties in a legal gray zone--a huge advantage to deep pockets.
If you try to enforce the law later, the judge may say it's “too late” and proceed as if the protection never existed.
"Early Enough"—But When?
The Court says that the ADR requirement must be objected to "early enough" in the litigation process—but it never defined what that actually means. This is a major departure from the statutes the Court cited as precedent, all having clear timeframes or deadlines written into the law (e.g., “before trial,” “within 30 days”).
NRS 38.310 has no time limit—because it wasn’t intended to operate like that. The Legislature designed it as a gatekeeping rule that automatically governed the court’s authority to proceed. No objection was required, and no window was set, because the statute spoke directly to the court.
When judges can disregard a statutory mandate unless someone stops them in time, compliance becomes optional—not just for parties, but for the court itself. Protections for the weaker party are lost. That’s not how this legislative safeguard was supposed to work.
This judicially imposed deadline, with no legislative anchor, transforms a protective statute into a procedural trap.
The "Lie-in-Wait" Problem Was Addressed In The Law- But no more post Kosor
The concern that litigants may hold back valid procedural objections—only to raise them later if the case turns against them—is a valid issue. But it is not unique to ADR statutes. Courts and lawmakers have long addressed this in other legal contexts. They set explicit statutory deadlines, define waiver points, and use judicial standard of prejudice and gamesmanship- to name a few. When compliance is deemed too important to leave to the parties, legislatures often direct courts to act independently. This is precisely why Nevada lawmakers singled out a special class of civil litigation- related to HOA CC&Rs- directing the courts act sua sponte - on their own- to ensure ADR before taking any action-- but dismissal.
Courts typically do not act sua sponte. As noted earlier, they wait for the parties to act. Judges prefer not be obligated to proactively investigate ADR compliance in the absent of a motion- even when the law, as does NRS 38, requires the submission of a affidavit ADR compliance upon filing. As such, the Court interpreted “The court shall dismiss” in that context: courts must dismiss when the defect is properly raised, not necessarily on their own initiative.
The HOA in Kosor had previously invoked NRS 38.310 to seek dismissal of litigation filed against it by others, arguing that ADR compliance was mandatory. Despite being aware of the requirement, it did not raise the same defense in Kosor. This selective invocation demonstrates how parties may 'lie in wait'—choosing when and whether to enforce statutory conditions based on litigation strategy. This is precisely the type of strategic behavior legislatures aim to prevent when they voted compliance too important to be left to the parties assigning it to the courts.
It is important to recognize that Kosor himself could have raised the ADR issue long before he did. However, his failure to do so was not a calculated litigation tactic. At the time of filing, he was represented by counsel inexperienced in HOA law, who acknowledged on the record they were not aware of NRS 38.310. Thus, the procedural failure in this case arose not from gamesmanship, but from inadvertence and lack of subject-specific familiarity—further reinforcing the need for judicial enforcement of mandatory procedural prerequisites rather than reliance on party compliance alone.
Post-Kosor, now absent the court, either or both parties can now lie in wait hoping the other side doesn't catch them. The ambiguity created turns the legislative protection on its head. It invites procedural gamesmanship and disproportionately harms HOA homeowners undermining the Legislature's intent to prevent premature litigation and reduce legal costs.
Finality Over Legality?
The Court also emphasized its desire to avoid what it called “do overs”—the reopening of cases where the ADR requirement was missed or not timely raised (again, whatever that means). The HOA and developer in Kosor asserted the gamesmanship issue— parties could lie in wait, see how the case goes, then raise ADR objections if they lose. Which may have been exactly what the HOA or developer had intended when failing to raise the objection to Kosor’s litigation much as it had done in many prior actions that involved failed ADR.
Judicial finality cannot trump legislative gatekeeping. The Court’s concern for finality cannot override the Legislature’s structural decision to condition the court’s jurisdiction on ADR. The proper sequence isn’t “trial first, ADR later,” but ADR first—or no trial at all.
The statutory language—“no civil action may be commenced” and “the court shall dismiss”—clearly signals legislative intent to withhold jurisdiction, not merely suggest best practices. Courts must respect that boundary, even if doing so inconveniences post hoc justifications.
Historically, equity has allowed courts to reopen judgments that were entered without jurisdiction or failed due process. But the Nevada Supreme Court chose finality over legality or equity. This suggests that courts acting without legislative authorization should still be obeyed, so long as no one catches it in time. That’s a dangerous precedent.
Not an Isolated Case
Kosor is not the first case in which the Court has displaced clear legislative text. In Lyft v. Eighth Judicial District Court, it struck down a statute allowing attorneys to be present during medical exams, claiming it conflicted with court rules. In Orbitz v. Eighth Judicial District Court, it ignored sequencing provisions in Nevada’s False Claims Act, despite federal courts enforcing the same language.
In each case, a pattern emerges: when legislative procedure conflicts with judicial preference, judicial preference wins.
What Can Be Done?
Lawmakers must act. The Legislature must reassert its authority and clarify the jurisdictional intent of NRS 38.310 and similar statutes. Recommendations include define a clear deadline, reinforce mandatory dismissal language, and make make clear the court's duty to dismiss noncompliant actions sua sponte- without prompting.
Homeowners must stay informed. Kosor affects how disputes are resolved—and who pays for them.
Judicial restraint must be demanded. Courts are not the makers of law, but interpreters. Court have a duty to follow.
Bottom line: While courts must interpret statutes, they must also respect them. The Kosor ruling is more than a technical clarification—it’s a signal that court may feel free to substitute their own procedural preferences for legislative will. The Constitution assigns the lawmaking function to the Legislature, and that prerogative must be guarded vigilantly—especially in areas where the Legislature has already spoken clearly, as it did in NRS 38.310. If left unchecked, this trend could undermine Nevada’s balance of powers- some arguing already in jeopardy- and leave homeowners more vulnerable than ever.
The danger here isn’t just that courts may misread the law- that happens. It’s
that they may stop reading it altogether.
Read here my open letter to lawmakers providing more detail and calling for action.
Posted by Mike Kosor
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[i] Nevada’s Constitution contains a number of express provisions that both define and confine the authority of its courts. Article 3, Section 1 directs the branches of government shall not exercise any "powers appertaining to either of the others." Article 6, § 6 defines the district courts as courts of “general jurisdiction” — meaning they can hear all types of cases unless expressly limited by law. However, the Legislature can place conditions on the exercise of that jurisdiction (e.g., preconditions like ADR under NRS 38.310) provided they do not violate constitutional protections or attempt to remove core judicial functions. The Nevada Constitution intended to prevent courts from extending their reach beyond defined subject‐matter boundaries.
Further Reading
Kosor v. Southern Highlands Community Association (2025), Findlaw
United States v. Kwai Fun Wong, 575 U.S. 402 (2015)
The U.S. Supreme Court case defining the “clear statement” rule for jurisdictional statutes—misapplied by the Nevada Court in Kosor.
Unchecked and Unaccountable: Nevada’s HOA System Failing Those It Was Meant to Protect: (NVHOA Reform Blog) Proposes two interrelated dynamics, the reform paradox, and where to look for fixes.
Cost-Shift HOA Justice: When Owners Bear the Burden (NVHOA Reform Blog)
Discusses how under-enforced statutes force homeowners to fight legal battles the state should prevent.
