HOA plans to implement automatic vehicle entry

Q: I serve as the vice president of our homeowners association at the Las Vegas Country Club Estates Master Association. As with all HOAs, we have our share of owners who fail to pay the monthly assessments and the fines levied for rule violations.

We are discussing the possibility of purchasing and installing the equipment for automatic vehicle entry, using a bar code reader system. This is a costly undertaking, and it occurred to us that it was unfair for the dues-paying owners to pay for this amenity and then allow the non-paying ones to use and benefit from this equipment.

We would like to consider restricting the use of this expedited automatic entry system so that significantly delinquent owners are required to enter the gates via gate guard admission rather than automatically via the bar code system. Some believe it would violate some state law to do this. Perhaps you could tell us if we can do this legally and appropriately. Thank you for any advice you may be able to provide.

A: Nevada Revised Statutes 116.211 subsection 2 states that an association may not unreasonably restrict, prohibit or otherwise impede the lawful rights of a unit’s owner to have reasonable access to their unit. What your board is proposing is a delinquent homeowner would have access via the guard gate where vendors and guests would normally enter into the community.

I can see where there could be two sides to debate what constitutes unreasonable access. The proposed regulation does not prevent a delinquent homeowner from entering into the community, as the law states the association may not unreasonably restrict or prohibit. To impede means to delay or obstruct or hinder. Making a delinquent homeowner use a different entrance could delay them entry depending upon the line of cars going through the guard gate.

It is interesting to note how this law was worded. The Legislature used the words “may not” as opposed to “shall not” and included the word “unreasonably.” The law could have been written to simply state an association shall not restrict, prohibit or otherwise impede the lawful rights of an owner to access his unit. I think there is some flexibility in the law that would support the association’s proposed regulation to require the delinquent homeowner to use another entrance into the community since they are not sharing in the burden to pay for the automatic vehicle entry.

As with any interpretation of the law, and especially in this case where an expensive entry system is considered, your board should discuss this proposed regulation with their legal counsel.

Q: Do the minutes of board meetings have to be recorded electronically? NRS 116. 31083 is ambiguous to me. The recordings the HOA provides to homeowners are so poor that few people can understand them. One secretary forgot to turn on the recording device and there are no records except the written ones that are really an outline of the meeting. In other words, does the (Nevada) Real Estate Division demand the recordings, plus the written minutes; or are the written ones sufficient in the event of an investigation? When I was the secretary, I taped the minutes but relied on my notes as I could not really hear enough with all the background noise to decipher much of anything. I taped them because it was the custom to do so. They were worthless as far as I was concerned.

A: NRS 116.31083 subsection 7 explicitly states: “The secretary or other officer specified in the bylaws shall cause each meeting of the executive board to be audio recorded and the minutes to be recorded or otherwise taken at each meeting of the executive board …”

There is a difference between listening to all of the conversations of a board meeting and the recording of the board minutes. Board minutes are not meant to be a word for word recording of all conversations within the meeting, Board minutes should reflect the action items taken by the directors. In an investigation, the Nevada Real Estate Division could ask for copies of the audio recordings, but generally would start with the written documentation of the minutes that have been prepared and approved by the board of directors.

In cases of dispute about a decision made by the board of directors, where a homeowner or homeowners are challenging the decision in the written minutes, you would listen to the audio recording of the minutes.

You are correct that there are times when recordings are not as clear; or when there was an unknown problem with the recorder; or even when someone accidentally forgets to turn on the recorder, hence the importance of the written minutes to be precise and accurate.

Associations may have to upgrade their recording system. During homeowner forums, you may have to ask each homeowner to stand up when they speak or to ask them to come closer to the recorder or have a walking microphone so that they can be heard in the audio of the meeting.