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Thread: Question about HOAs

  1. #1
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    Does the pre-emption law in NV prevent an HOA from passing anti-gun rules regarding the common community areas that they maintain? I was just thinking about this the other day since my wife and I live in an HOA neighborhood and like to talk walks in the evening around the walking trails. I typically OC during our walks, and haven't had any problems. However I would think that one ticked-off resident could complain to the HOA and get a new rule passed. Should something like that happen, I'd like to be able to point out that they aren't allowed to do that, if possible.

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    I'm don't think that the pre-emption law applies to non-governmental entities. I would think that there would be some limitations though on their powerssince the streets etc. are open to the public and not gated off, and I don't see how they could enforce limitations on people who pass through. I'm no expert on any of this however.

    I live right next to the housing development you are in but am not part of the home owners association. I've also open carried through some of the walking paths in your area.


    NRS 268.418 - Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada, and no city may infringe upon those rights and powers.

    NRS 244.364 - Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada, and no county may infringe upon those rights and powers.

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    I found a website for the HOA, I pm'ed itto you.

    They call themselves a "legal governing body."

    But their rules say that "common areas" are private property (which they would probably have control over what goes on.) They define common areas as basically everywhere that the state/county/city does not make a claim of ownership on.

    Since the preemption says that only the state may regulate it, and they claim to be a governing body I would almost think the law would apply, but then they claim to be private property instead, and I don't think the preemption law applies to private property.

    What do they mean by legal governing body? Do their rules have the force of law or does only trespass apply? If their rules had the force of law thenfirearmrules would be illegal under preemption I would think.


    ...

    Also, their rules say seem to say that they need a majority to pass new rules, so it doesn't seem like they would pass something based on the complaints of one individual. But then, if they really are just a private company they could just break their own rules and do whatever they wanted I suppose.


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    According to realtor.com explanation of CCR's at a HOA...

    http://www.realtor.com/BASICS/condos/ccr.asp


    1. What are CC&Rs? The covenants, conditions and restrictions (CC&Rs) are the governing documents that dictate how the homeowners association operates and what rules the owners -- and their tenants and guests -- must obey. These legal documents might also be called the bylaws, the master deed, the houses rules or another name. These documents and rules are legally enforceable by the homeowners association, unless a specific provision conflicts with federal, state or local laws.


    So maybe it couldbe argued that it would conflict with state law?

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    I'm relatively confident the HOA could amend the CC&Rs to include a prohibition against firearms in common areas. Regardless, enforcement would be a problem. In most cases, their enforcement authority is limited to fines. There are no provisions for CC&R violations to be treated as criminal issues.

    The worst they could do is send you a nastygram in the mail.

    The other good thing is that in most HOAs, modifications require a majority, if not a super-majority vote. Good luck getting that many people to respond to anything in an HOA of any decent size!

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    bobernet wrote:
    I'm relatively confident the HOA could amend the CC&Rs to include a prohibition against firearms in common areas. Regardless, enforcement would be a problem. In most cases, their enforcement authority is limited to fines. There are no provisions for CC&R violations to be treated as criminal issues.

    The worst they could do is send you a nastygram in the mail.
    Or they can tell you to leave the common area or be subject to the trespass law. IMHO they can make rules restricting anything they want to as long as the "community" agrees. They cannot stop you from carrying concealed (as long as you have a permit). That is what I do.

    Ken

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    I think my 'hood is the one place i would not OC. i do not want my neighbors or others driving around to know i have a gun or guns. I don't know many (of most of them) and needless to say, i don't trust 'em.


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    Wow, interesting question... I believe CowboyKen is right, they could trespass you. The question then becomes whether being trespassed from a community area exempts you from paying the HOA dues associated with those community areas. Probably not.

    What if they went a step further and said you can't have firearms in your home? They can prevent you from painting your house purple, right? When looking for a new home, I found a HOA with CCRs that stated residents may not leave their GARAGE DOOR open. Needless to say, I moved on.

    If they can't dictate what you can have in your home, what about in your car? Some HOA's "own" the private roads upon which you drive to get to your house. If you would agree they may trespass you from places like the community pool, walking trails, etc, wouldn't the same community property rule apply to private roads?

    Yikes, one more (of many) reasons to avoid HOAs.

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    You really must READ all of the documents before you buy property. It is, IMHO, just like knowing the law before you carry a gun.

    Ken

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    CowboyKen wrote:
    You really must READ all of the documents before you buy property. It is, IMHO, just like knowing the law before you carry a gun.

    Ken
    i agree 100% - i read the whole book (400 pages) before i signed anything. I think the HOA knows that only 1% of the people read the CC&R's before signing the papers. These are the people who are being fined all the time which puts extra $ in the coffers.

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    yeahYeah wrote:
    CowboyKen wrote:
    You really must READ all of the documents before you buy property. It is, IMHO, just like knowing the law before you carry a gun.

    Ken
    i agree 100% - i read the whole book (400 pages) before i signed anything. I think the HOA knows that only 1% of the people read the CC&R's before signing the papers. These are the people who are being fined all the time which puts extra $ in the coffers.
    Yeah, my wife and I fully read the CC&Rs for our community before we bought the house. There's nothing in there now about firearms in the common areas. The point of this thread was to find out if there was anything legallypreventing them from adding such a restriction in the future.

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    i am not sure.... we pay for those common areas, so I think it would be counter productive for them to do that...it may also make them more susceptible to lawsuits by CCW holders, esp. There has been gun violence in my neighborhood - we have a lot of renters and a few section 8'ers - there is no way i will go for a walk or to the parks w/o my heat - i dont know anyone or trust anyone in the neighborhood.

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    yeahYeah wrote:
    i am not sure.... we pay for those common areas, so I think it would be counter productive for them to do that...it may also make them more susceptible to lawsuits by CCW holders, esp. There has been gun violence in my neighborhood - we have a lot of renters and a few section 8'ers - there is no way i will go for a walk or to the parks w/o my heat - i dont know anyone or trust anyone in the neighborhood.
    My thoughts on a similar issue are that since the homeowners pay dues to the HOA, is it legal for the HOA to trespass a resident from the common areas? I would think that all the residents may be considered partial owners of the common areas. I'm probably wrong, but that was my train of thought.

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    I don't know how the land in "common areas" is deeded, but the legal description of an HOA is a "common interest community." Of course, the plain meaning and the legal meaning of words is often very different. :-)

    Edit:

    Did a little more digging. This only applies to my HOA, so check your CC&Rs to see if it's substantially different.

    The "Association" is organized as a non-profit corporation. The Association holds the title/deed to the common areas. The documents specifically grant access to use the common areas to residents, guests, tenants, etc.

    The Association's remedies are specifically limited to fines, collection, etc. The document does not provide any ability for them to deny access to any common areas. With regard to behavioral conduct (as opposed to property issues) the only controlling language is about loud/nuisance behavior and violations of law.

    Speaking only for my association, it would require a significant amount of modifications to the CC&Rs to add any ability to seriously restrict or penalize open carry (a legal behavior) or to add teeth like "trespass" conditions on association members.

    I don't think I'd sweat it.

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    I can always email my contact and ask for more info. The HOA's do have to abide by Nevada laws, so it should be universal all around.

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    Seems to me as you are paying for the use of this so called "private property through your HOA dues, then you would be covered the same as you would be as if you were renting an apartment or hotel room. Of course IANAL and there is no court precident to support my opinion that I know of, logically that would be my argument to refute such an HOA decision if I had to. $.02

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    VegasSwift wrote:
    Seems to me as you are paying for the use of this so called "private property through your HOA dues, then you would be covered the same as you would be as if you were renting an apartment or hotel room. Of course IANAL and there is no court precident to support my opinion that I know of, logically that would be my argument to refute such an HOA decision if I had to. $.02
    Sounds reasonable, but... What if you were a member of a shopping club, say Costco or Sams Club, and they had no rule prohibiting weapons, but later added one. You are obviously free to cancel your membership as the rules changed from your original agreement. You'd probably get a refund, at least for the unused portion of your membership fee.

    If this same logic applies to the HOA, would you be free from HOA dues? Or would they simply respond that you're not required to live there and are free to move?

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    Ahhhh to be free of HOA dues, that's a tough question though.Using your example though, if you were toliterally ownsome portion of the Costco you have a membership at could they forbid you moving from one part of the store to the other and then return to "your" potion while OC?

    Also, most HOA's have agreements with Metro, North Las Vegas Police, and Henderson PD that allow traffic violators, and people with expired registration (cost me 300 bucks to get that truck back and I was just tinkering with it)etc. to be ticketed and towed. I would assume that in such an area state pre-emption would have to prevail because the HOA has willfully given peace officers, and thereby the state, jurisdiction over that area. I need an emoticon of my head exploding........

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    Got to agree that HOAs make my head explode too.

    Brings up interesting questions. I'm sure there's case law about it.

    I heard of one HOA in Northern VA being able to sue a homeowner to make major $$$ renovations to his multi-million dollar house because he opted to build a custom house with no right angles (it had all rounded corners).

    One thought I have - if a HOA issues me a ticket (as a visitor, not a homeowner), am I obligated to pay it? I would think not.

    A buddy of mine in Virginia was working on his classic El Camino in his driveway. One day while he was at work, he got a ticket for an expired city sticker, which is a required vehicle tax there. Funny thing is, the only way to determine whether the city sticker was valid was to illegally trespass on private property and view the vehicle from the front, which faced the garage door. He lost despite the trespassing allegation!!!

    HOAs make me sick. They make sense in principle to help keep property values up. But the unchallenged power they assert exceeds what we allow government to do. Imagine a world where you have no choice but to live under an HOA... The government can't violate the constitution, but the HOA is free to contract such violations right into their monthly dues.

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