Email Board approvals - an unguarded door to abuse- Part 2- distance between statutory intent and operational practice

Nevada HOA Boards can take any action, to include approval of major contracts, without meeting or providing advance notice to owners. But should they? In my opinion this provides an unguarded door to abuse that for too long has been in need of closure. This post is a second in a series intended to spotlight the many places in Nevada law where distance exists between what laws seek to accomplish (statutory intent) and what is allowed to occur in HOAs (operational practice).

Open door to abuse

Nevada law mandates that homeowners association (HOA) boards provide notice of meetings to promote transparency, accountability, and homeowner participation in community governance. Unlike ordinary private corporations, HOA boards are governed by provisions modeled after public-sector open meeting principles. These are codified in NRS 116.31083 and related provisions of NRS Chapter 116 and they reflect a clear legislative intent: board decisions affecting the community must be made openly, with advance notice and owner access.

But what happens when HOA directors trying to avoid holding a meeting at all—particularly to bypass contentious topics or limit disclosure— conduct business through emails or serial communications? Is that legal?

According to the Nevada Real Estate Division (NRED), it may be. The agency has stated that email deliberations or decisions are not categorically prohibited, though it qualifies this view with a disclaimer: "the Division discourages use of such action in lieu of a meeting unless absolutely necessary (i.e., pipe burst, fallen tree)."

This interpretation stands in stark contrast to how Nevada’s Open Meeting Law (NRS Chapter 241) treats similar conduct. A Nevada Attorney General's Office briefing finds "Electronic communication between a quorum of members can constitute a meeting". Further, under NRS 241.015, a series of communications involving less than a quorum at any one time—but collectively constituting a quorum—can qualify as a "meeting" if they are held with the specific intent to avoid public deliberation. In short, government boards can’t circumvent meeting requirements via email or walking quorums—yet HOA boards can?

NRS 116.31083(6) provides a narrow exception to open meeting requirements: “In an emergency, the executive board may take action on an item which is not listed on the agenda as an item on which action may be taken.” Separately, NRS 116.31085(2) prohibits boards from using closed executive sessions—where homeowners cannot attend—to open or consider bids or take action on contracts. These safeguards are designed to promote transparency and ensure owner input and oversight of significant association decisions.

Yet in practice, many executive boards sidestep these protections entirely by deliberating and approving contracts via email—without notice, without an agenda, without owner observation, and without minutes. If the law prohibits private executive sessions for these actions, how can silent email approvals possibly be permissible? This inconsistency raises serious questions about compliance, accountability, and the erosion of owners’ statutory rights to observe board decision-making.

The gap between statutory intent and actual enforcement is glaring. Whether by regulatory design or legislative oversight, this loophole allows boards to evade the transparency safeguards embedded in NRS 116. That undermines trust, invites abuse, and contradicts the public-facing principles the statute was meant to uphold.

Because NRS 116 does not clearly prohibit board action outside of a formal meeting, some fall back on NRS Chapter 82, which governs nonprofit corporations generally, or rely on vague HOA governing documents. But such fallback provisions were never designed to provide a framework for quasi-public decision-making that affects hundreds or thousands of residents.

NRED wrties "Action can be taken without a meeting under NRS 82.271 subject to the association’s governing documents. Written consent in lieu of a meeting must be signed and kept in the records of the association. The board should disclose to unit owners any action taken by written consent at its next regular meeting. The Division discourages repeated use of action by consent in lieu of a meeting, but when necessary, this action can be used to conduct day to day business such as calling a service provider to immediately correct an issue." That’s hardly a clear safeguard against abuse.

In the absence of direction, NRED permits the use of procedures under an association's governing documents—documents written exclusively by developers, not homeowners—instead of establishing regulations to address possible abuse. The covenants, conditions and restrictions (CC&Rs) and bylaws often provide boards with broad discretion to act outside of formal meetings. A standard clause typically reads:

Action Taken Without a Meeting: The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting, by obtaining the written approval of all Directors*. Any action so approved shall have the same effect as though taken at a meeting of the Directors. (* some only require a majority)

If the HOA's governing documents are silent, NRS 82.217 provides the following:

“... any action required or permitted to be taken at any meeting of the board of directors ... may be taken without a meeting if, before or after the action, a written consent thereto is signed by a majority of the board of directors or the delegates or of such committee.”

These provisions can be used to circumvent public deliberations and shield board actions from homeowner oversight.

The NRED has long acknowledged the risks. It writes in Advisory No 11-01, June 14, 2011 and education information "a vote via email or possibly another method may not satisfy the fiduciary duty of a board member, thus these methods of voting for members of an executive board is greatly disfavored... ".[i]

Yet, no material penalties or regulatory mechanisms are in place to deter abuse. Why? Should not NRED address this disconnect? What about the CICCH Commission who is tasked to "adopt regulations and conduct disciplinary hearing." Until something is done, Boards face little to no consequence for "sidestepping" open meetings when making decisions, even in non-emergency situations.

Informed or obscured?

Informed or obscured?

The result is an unguarded door to abuse that can have material consequences. Homeowners can be denied the right to be informed, to engage, or to object—before decisions with significant financial or policy impact are made.

If a board feels compelled to act outside of a meeting—for example, by email—it should first ask: How are homeowners being given the opportunity to weigh in before a final vote is taken?

Here are two simple suggestions they could use:

• Send a broadcast email to all owners outlining the proposed action and soliciting input before a board vote occurs;

• Discuss the item in an open meeting, include it on the posted agenda, and allow for owner input—then, if needed, finalize the decision by email afterward.

Some will argue this is unnecessary—“No one will respond,” they say. Sadly, in many cases that may be true. Apathy is a real issue in HOAs. HOA homeowners become their own worst enemy when they stop demanding their rights. Over time, those rights calcify and effectively vanish.

It’s time to assert owner rights, close this loophole, and demand better.

Until the Nevada Legislature or our Regulator acts, HOA boards should be mindful of Nevada’s clear legislative intent: to ensure owner participation and transparency in decision-making- but huge loophole for abuse. Governance—especially when it mimics governmental functions—must not take place in the shadows- even if no one seemingly cares.

The Nevada Real Estate Division and if necessary the Legislature, must revisit this issue and reconcile its intent for open meetings with the private provisions in governing documents that currently serve to nullify them.

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[i] NRED education see slides pg 25 & 26