Nevada Courts Reshaping HOA Law Beyond What the Legislature Ever Intended — Yet Again
- Mike Kosor
- Sep 22
- 8 min read
When Nevada lawmakers wrote Chapter 116, they created a framework meant to balance stability with fairness. But that work has gone unfinished and withered. This post shows that time and again, Nevada courts take statutes designed to protect homeowners and interpret them in ways that have the effect of insulating developers and associations. Lawmakers must step up.
We saw this recently when the Nevada Supreme Court held that mandatory ADR under NRS 38 was waivable-- despite the Legislature’s clear intent that it be mandatory and no statutory text authorizing waiver. Read more: Nevada Supreme Court Ignores the Law on HOA Disputes—Become Policy Makers In Robes
Nevada's Court of Appeals has also interpreted a statute of repose lawmakers intended to protect owners and settle disputes — ignoring a key qualifier, “adopted” — and in doing so flipped the statute on its head. This has significant implications.
NRS 116.2117 provides:
“No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than 1 year after the amendment is recorded.”
But in ruling, the Court ignored the statute’s clear qualifier — “adopted” — and expanded the challenge bar after one-year to cover every amendment that is recorded, not just those adopted by the owners.
Two Lawful Paths for Amending CC&Rs in Nevada
The CC&Rs are effectively a community’s “constitution.” And just like any constitution, changes to those core rules should rest with the people who live under them. They are also more than a "contract". That’s why amending CC&Rs is important. It should require a direct vote of the owners — not left to courts, boards, managers, or lawyers acting on their behalf.
Under NRS 116.2117 (a thicket of clauses and exceptions), amendments to a declaration generally occur in only two ways:
Owner Adoption: The default rule is that amendments must be approved by typically a supermajority of unit owners (often two-thirds or more).
Declarant Action (narrow exceptions only): A declarant may act unilaterally where Chapter 116 expressly authorizes it. Examples include exercising reserved development rights during the build-out phase, correcting a genuine scrivener’s error (a true clerical mistake), or annexing additional property where the declaration already provides for it.
Declarant amendment exceptions are narrow and rooted in the expected temporary nature of declarant control. For example, a developer may exercise reserved development rights during the build-out phase. This authority is necessary to complete the project as originally planned and protect the developers investment— adding phases, building amenities, or selling lots — but it is tied to the period of declarant control and should end once the project is substantially complete.
Another limited exception exists for the correction of a scrivener’s error — a true clerical mistake where the text of the CC&Rs does not reflect what was clearly intended at the time. Correcting a typo or misnumbered section is very different from altering substantive rights.
Finally, Chapter 116 recognizes the declarant’s ability to annex additional property if the original declaration specifically provided for it. In that case, the expansion of the community is already contemplated in the recorded document, known to owners when they buy- becasue it could change when they get to govern- and the unilateral action is confined to carrying out that plan.
Outside these narrow contexts, unilateral amendments by a declarant undermine the very premise of homeowner self-governance. They blur the line between temporary development rights and permanent community control. That is why courts, regulators, and reform advocates stress that declarant authority to amend must be read narrowly and tied explicitly to statutory language. Anything broader risks allowing a developer to entrench its own economic interests long after control should have shifted to the owners.
Bottom line- outside these narrow declarant exceptions, every amendment must be approved- "adopted"- by the unit owners.
Simply recording a document does not make it an adopted amendment.
Legislative intent behind a one-year "repose".
Nevada adopted the Uniform Common Interest Ownership Act (UCIOA) framework, which established a one-year challenge window to amendments “adopted by the association.”[1] The purpose was to provide finality after adoption — to prevent endless challenges about whether notice was adequate, ballots were properly counted, or quorum requirements were met. It was never intended to shield amendment efforts that were not adopted in the first place and/or may have violated the law (and deemed to conform) when recorded.
The Court’s Ruling
In Kosor v. NRED, the Nevada Court of Appeals upheld NRED’s dismissal of the homeowner's challenge to the 2005 “Third Amendment” to the Southern Highlands CC&Rs. The amendment had been recorded by counsel for the developer, increasing the maximum build-out from 9,000 to 10,400 homes.[2]
There was no evidence presented of an owner vote, much less approval— the process Chapter 116 requires for all amendments to the declaration.
The contested amendment was recorded before the association itself even received notice of it, underscoring that it appears to have been a unilateral act rather than an amendment adopted (approved) through the statutory process.
When the amendment was challenged, NRED dismissed the complaint as time-barred under this one-year repose in NRS 116.2117. Both the district court and the Court of Appeals affirmed that view.
None of these bodies ever reached the merits, they grapple with the statute’s key word — “adopted” — which is the necessary trigger for repose, or address the legitimacy of the content. Instead, they treated the mere recording of the amendment as sufficient, effectively barring any inquiry ("challenge") into whether the changes imposed by the amendment could be defended as a scrivener’s error or otherwise.[3]
Even more troubling, the courts ignored a second argument: that the amendment was void ab initio — a Latin phrase meaning “void from the beginning.” In other words, an amendment that directly violates a statute is unlawful the moment it is filed- before the repose engaged.
The developer’s amendment increased the maximum number of units beyond what the original declaration allowed. That change is prohibited by NRS 116.2122, which bars a declarant from unilaterally increasing the number of units beyond the number stated in the original declaration. Had the amendment been properly adopted by the association through the owner-approval process, it may have been valid. But because it was filed unilaterally with no evidence of adoption, it could be reasonably argued that it should have been rejected. Read more in a FindLaw review here.
The homeowner petitioned the Nevada Supreme Court to review the Court of Appeals’ decision, but the state’s highest court declined to accept the case. As a result, the issue has never been considered on the merits by the Nevada Supreme Court.
This reading stretches the statute beyond its purpose. The repose was written to stop late-arriving disputes about the process of adoption — whether notice was adequate, whether a quorum was met, or whether ballots were properly handled.
Why It Matters
By applying a repose to amendments that bypassed adoption altogether, the courts inverted legislative intent and turn a homeowner protection into a potential developer shield.
The problem is not simply that repose was applied too broadly- and could be again. It is that the courts were willing to apparently ignore a key limiting word — “adopted” — from the statute itself- once again.
A repose does not and cannot make a defective amendment — such as one unilaterally recorded or one made in violation of statute, like a declarant increasing the original maximum units — legitimate. Its function is to bring closure to disputes over adoption, not to breathe validity into what are flawed amendments.
In plain terms: a change to an HOAs "consititution" could be valid if approved approved owners, but without owner approval it should never qualify as a valid amendment.
If courts allow unadopted changes to stand, then the owner-approval safeguard becomes meaningless.
The precedent is dangerous. If courts can ignore the Legislature’s limiting words in this context, nothing prevents similar erasures elsewhere in Chapter 116. Homeowners already struggle with cost and access; now they face a judiciary willing to let statutory safeguards vanish when inconvenient.
The imbalance is compounded by deep pockets. Developers and associations can litigate with resources drawn from owner assessments or corporate revenues, while homeowners must shoulder personal costs at six-figure scale — just to test whether the law means what it says. Read more: Cost-shifting HOA justice: Time to draw the line.
Conclusion
Nevada homeowners have now witnessed a troubling pattern:
ADR Waiver: The Supreme Court allowed parties to contract around Nevada’s mandatory ADR requirement, diluting a homeowner protection the Legislature intended to be non-waivable.
Repose Extension: The Court of Appeals applied NRS 116.2117’s repose to a unilateral declarant filing, treating it as if it had been adopted.
If there are other examples where Nevada courts have similarly stretched or reshaped HOA law beyond what the Legislature wrote or intended, NVHOAReform invites readers to share them. Spotting these patterns is essential to showing policymakers just how much the balance of power has shifted. Where reform is needed.
Both rulings stretch statutory text in ways that favor associations and developers — those armed with the deep pockets of owner assessments and corporate resources — and both undercut the Legislature’s stated intent. Homeowners, by contrast, are left to shoulder personal risk at six-figure scale simply to test whether the law means what it says.
If courts can read limiting words like adopted out of Chapter 116, homeowners lose not only their substantive rights but the certainty the Legislature believed it had provided. Statutory safeguards vanish, and with them, the balance of power tilts even further toward those who can afford to litigate without end.
The reconstituted CIC Task Force, and ultimately the Legislature, must correct these judicial rewrites. Finality matters, but only when legitimacy comes first. The repose was enacted to bring closure to disputes over how an amendment was adopted — not to validate filings that were never adopted at all.
And critically, because the Nevada Supreme Court declined to review Kosor v. NRED, this question has never been decided on the merits by the state’s highest court. Until lawmakers act, the Court of Appeals’ expansive reading stands — leaving homeowners exposed to amendments that may never have been validly adopted in the first place.
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This post in one of many by NVHOAReform.com exploring how Nevada’s HOA system drifts further from public accountability — and how it can be fixed.
Readers may also be interested in:
Private on Paper, Public in Practice — Why HOAs Need Better Transparency RulesNevada Supreme Court Ignores the Law on HOA Disputes—Become Policy Makers In Robes
For a complete list of our posts go here.
Go here for NVHOAReoform's current list of HOA Law Changes – Remedies for Consideration.
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[1] See Uniform Common Interest Ownership Act (UCIOA) § 2-117(b) (1982) (“No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.”). The official commentary explains that the repose provision was intended to tie finality to the adoption process itself — i.e., to prevent belated challenges to whether notice was adequate, quorum satisfied, or ballots properly counted.
[2] Read more: Declarant Control — a little known dark secret #1.
[3] In response to a 2017 NRED inquiry, counsel for Southern Highlands Development Corporation characterized the 2005 “Third Amendment” as a scrivener’s error.
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