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Resolving Disputes in Community Association and HOA Settings Dealing With the Difficult

Community living comes with its own dynamics. Close quarters and shared spaces can—and often does—lead to conflict: conflict between neighbors, the association board of directors, and members; and also between the board or members and management.  In any event, conflict can become a distraction, and it is often the intervention of management, legal representatives, and the Nevada Real Estate Department (NRED) who restore and maintain the peace and tranquility of communities.

The Source(s) of Conflicts

“Most conflict is neighbor-to-neighbor,” says Jeanne Tarantino, a senior vice president with Associa Sierra North, a management company with offices in Reno, Incline Village, and Sparks as well as South Lake Tahoe, California. “The most common problems have to do with pets or with parking.  In terms of parking, there are never enough spaces.  People often tend to fill their garages with stuff, and then park on the street.  Many associations don’t permit that.  It also negatively impacts guest parking, with residents parking in the guest spots.  In some cases, residents may leave a car ‘stored’ outside, and it becomes an eyesore.”

Tarantino observes that “Pets can be a problem as well, because there’s always a dog that barks more than what the neighbor feels is appropriate, and often members will let their dogs out without supervising them, resulting in the animal leaving a mess on someone else’s lawn.”  Though that’s contrary to the rules in most communities, it’s clearly hard to enforce.

Sheila D. Van Duyne, an attorney and owner of the Van Duyne Law Group in Reno, represents numerous community associations and has been active in the Nevada legal community since 2005. She explains that conflict is not uncommon in association boards.  “In Reno, we have a lot of smaller associations – more so than in southern Nevada.  Because of that, boards often have to fight for volunteers to serve.  They get overwhelmed.  If one board member does most of the work, there may be conflict.”  Van Duyne also says that often there will be one board member who is very negative, but not particularly helpful, which can also cause intra-board dysfunction.

In Nevada, all board meetings are open to the entire association membership.  Unhappy members may show up to vent, and conflict may result—in this case between board members and association residents.  Eva Segerblom, an attorney and partner at Reno-based Maddox, Segerblom and Canepa, LLP, says, “Owners who think they are being treated differently than other owners,” are likely to create disputes.  “Mostly, it’s in regard to enforcement of the governing documents.  It can be something very small, but if someone thinks they are being treated differently than other owners, that can quickly become a big source of conflict.  

“The other source of conflict is the architectural review committee’s decisions,” she continues.  Architectural review committees are common in Nevada and govern what residents can and can’t do relative to both interior and exterior changes to their residences and how that might impact the community’s appearance.  These issues can extend from building an addition to what types of plants or fences may be placed on your property.

Tarantino asserts that in her experience, the majority of homeowners are happy with their boards and appreciate the time commitment people make to volunteer and serve.  “There is always a minority of residents who will be in disagreement, and there are always one or two who want to fight the board on everything,” she says. “Usually these people think they are expert on some subject – say, the chemicals a landscaping company employed by the board are using, which they insist they’re not using correctly.  I have found though, that most of the time these complaints are not valid.  These contractors have been vetted and researched by the board before they were contracted for the job.” 

Managing Conflict

“As a manager, we have to listen and try to get the parties to talk to each other,” says Tarantino.  “I usually get pushback on the first attempt, because people are uncomfortable with their neighbors for a variety of reasons.  The association will send a courtesy notice to the offending resident, even if the complaining owner wants to remain anonymous.  After that, I start by talking to the owner in conflict.  When I see a conflict beginning, I get on the phone.  I’m very hands-on.  I inquire about their concerns, then I start to work on compromise.  That works both ways.  I try to steer everyone to a middle ground position.”

As both an attorney and a former board member, Van Duyne says, “The best way to control conflict in an open meeting is to have a well-handled board meeting.  There need to be guidelines, a clear agenda, and transparency.  You can’t make everyone happy, but the process has to work.”  Most importantly, she says, “Don’t make decisions outside the meeting.”  Nevada law provides that boards may only meet in closed sessions for very limited reasons generally involving existing litigation requiring attention to attorney-client privilege or relative to discussions of association employees.

Segerblom also mentions that “If a homeowner asks for an item to be placed on an agenda, than it must be placed on the next regularly scheduled board meeting’s agenda.  It can be any topic.  People use this a lot if there is an issue of transparency with the board.  Residents get three minutes before and three minutes after the meeting to express themselves.”

Architectural Committees

Perhaps unique to Nevada, the power of architectural committees can often result in conflict between neighbors and  the rules of the association.  HOAs in particular have master plans.  They call for a certain ‘look’ that must be uniform for the entire community.  It may be a desert look requiring certain types of plantings or rock decoration.  Others may be situated in forest environments and may prohibit fences to maintain the natural, open look of the property and surrounding grounds.

“It’s very hard to purchase a new home in Nevada that’s not in a common interest community,” says Segerblom.  “People don’t necessarily read governing documents before they buy, and are not fully aware of the rules.  They purchase a home in a common interest community and they can’t do whatever they want in terms of the exterior or the landscaping.  In these cases, there are three things they can do: they can move, they can fight the association, or they can try to comply.”  

Van Duyne agrees, adding, “I’ve gone to court over rocks.”  Tarantino concurs as well.  “People should read the guidelines before they buy in,” she says. “Don’t go in expecting to change things.”  

One famous case cited by Segerblom is actually known as the ‘Rock Case.’ “The largest HOA here in Reno, 5,000 single family homes, has a lot of rules regarding landscaping,” she says.  “Specifically, there was a PUD [planned unit development] approved by the City of Reno for the entire build-out of the community, and it had rigorous style requirements.  The community required certain front yard landscaping.  Some homeowners challenged this—specifically that there was a drought-tolerant option, but they wanted something different.  We went through the mediation process required under Nevada law through the Nevada Real Estate Division, and then they sued the association.   It was very acrimonious.  We ended up going to court over whether they could install rocks instead of the low-growing juniper plants required by the association.  The complainants ultimately lost.”

Nevada Real Estate Division

Unlike other locales, Nevada requires that members of common interest communities go to the Office of the Ombudsman of the Nevada Real Estate Division for conflict resolution before filing a lawsuit.  This process has been in effect since 1997.  

Charvez Foger, Ombudsman with NRED, explains the process as follows:  “When someone calls our office and they have a conflict, they have three options to choose from.  The first is that they can fill out an intervention affidavit, which is a complaint that can be filled out online.  Once we get the form, we determine if we will send it for alternative dispute resolution, or ADR.  The only complaints that get forwarded are those that deal with governing documents.

“The second item we deal with,” continues Foger, “are complaints where we determine if there is a violation of the NRS [Nevada Revised Statutes] code.  Those go to investigation.  These can have something to do with fiduciary duties or harassment or what have you.  If we think the law has been broken it goes to the compliance department.  Compliance will determine if the law has been broken.

“The third option is that if we speak to the parties and we think we can help resolve the problem, we send them to mediation.  We have mediation specialists who will ask the parties to meet and [they’ll] attempt to mediate the conflict to an acceptable conclusion.  If they don’t come to an acceptable conclusion they can file to go to investigation.  If it’s frivolous we don’t forward it to investigation.”

The ombudsman’s office receives and reviews between 350-400 cases per year.  Approximately 40 percent are resolved through their office, and about 15 percent end up in litigation. Fraud cases are sent to the department’s governing commission and can result in serious penalties.                 

A J Sidransky is a writer and reporter for The Nevada Cooperator. 

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2 Comments

  • Please accept these two corrections to the article: Charvez Foger is "the" Ombudsman, not "a" Ombudsman as this article states. There is only one Ombudsman, though there is an Ombudsman office with various staff members. Also, this article states, "Unlike other locals...."; I believe the author meant, "Unlike other locales," not "locals." Thank You.
  • I meant "an" Ombudsman, not "a" Ombudsman in the preceding comment. Forgive me.