Check out these featured articles from our “Five Things” issue of COMMUNIQUÉ (January 2019):
- “Five Things to Know About The Laws Governing Homeowners Associations” by John E. Leach, Esq.
- “Five Things You Should Know About Starting Your Own Law Firm” by Brian Vasek, Esq.
- “Five Things to Know About Common Pro Bono Myths” by Stephanie D. Bedker
- “Nevada Appellate Court Summaries” Joe Tommasino, Esq.
© 2019 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (January 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
Five Things to Know About The Laws Governing Homeowners Associations
By John E. Leach, Esq.
There are more than 3,290 community associations in the State of Nevada. Given the prevalence of community associations in and around Nevada’s population centers, there is a high likelihood that you live in a common-interest community or know someone who does. Below are five things to know about homeowner’s associations.
NRS 116 does not apply to all associations. It does not apply to non-residential (commercial) condominium associations, unless the recorded declaration for the non-residential condominium association expressly provides that all or only certain portions of the statute apply to the association. See NRS 116.12075. Similarly, associations created before January 1, 1992 are not required to comply with the statutory provisions that govern the creation, alteration, and termination of associations. See NRS 116.1201(3)(b). There are also exceptions created for small planned communities, which are defined as planned communities that contain no more than twelve units and are not subject to developmental rights. See NRS 116.1203.
The laws governing associations do not supersede all provisions of an association’s governing documents. Many provisions of the law include the following language: (a) “Except as otherwise provided in this chapter, and subject to the provisions of the declaration . . .” (NRS 116.3102); (b) “Except as otherwise provided in the declaration, bylaws . . .” (NRS 116.3103); and (c) “Except as otherwise provided in the governing documents . . .” (NRS 116.3115(4)). In these instances, the association’s governing documents should govern the issue.
An association has a statutory lien on a unit for any assessment levied against the unit to cover the owner’s share of the association’s common expenses. See NRS 116.3116(1) and (9). The association’s lien also includes any construction penalties, fees, charges, late charges, fines, and interest charge by the association. See NRS 116.3116(1). The association’s lien also includes abatement charges, which include costs incurred by an association to: (a) abate nuisances on the exterior of the property, and (b) abate water or sewer leaks and remediate or remove water or mold inside a unit with shared horizontal or vertical boundaries. See NRS 116.310312. The association may foreclose on its lien if the owner fails to pay any past due amounts. See NRS 116.3116 et seq. However, an association may not foreclose a lien by sale based on a fine or penalty for a violation of the association’s governing documents, unless the conduct giving rise to the fine or penalty poses an imminent threat of causing a substantial adverse effect on the health, safety or welfare of the owners or residents in the association.
A portion of the association’s lien has priority over the first deed of trust or mortgage recorded against the property. In fact, the Supreme Court of Nevada has concluded that a properly conducted association foreclosure sale, pursuant to NRS 116, extinguishes the first mortgage or deed of trust recorded against the property, unless the bank pays, prior to the association’s sale, the superpriority portion of the association’s lien. See SFR Investments Pool 1 v. U.S. Bank, 334 P.3d 408, 411 (2014), reh’g denied (Oct. 16, 2014). The superpriority portion of an association’s lien is defined as nine (9) months of assessments that became due “immediately preceding the date on which the notice of default and election to sell is recorded,” plus certain foreclosure costs expressly set forth in the law. See NRS 116.3116(2),(3) and (5). In addition, the superpriority includes any abatement charges as referenced above. See NRS 116.310312(7).
The officers and directors of an association are subject to the jurisdiction of the State of Nevada, Department of Business and Industry, Real Estate Division (“NRED”). The Ombudsman’s Office, which is part of the NRED, was created to, among other things, investigate alleged violations of NRS 116 and NAC 116. See NRS 116.745 and NRS 116.750. However, the Ombudsman’s Office does not have jurisdiction over alleged violations of an association’s governing documents. Instead, such claims must be submitted to the NRED mandatory Alternative Dispute Resolution program before the parties may proceed to court. See NRS 38.310 et seq.
John E. Leach, Esq. received his J.D. from J. Reuben Clark Law School in 1985. He is a partner at Leach Kern Gruchow Anderson Song. He is also a Fellow in the College of Community Association Lawyers.
Five Things You Should Know About Starting Your Own Law Firm
By Brian Vasek, Esq.
Here you are. A recent law school graduate. A seasoned veteran. Whatever your reason, you are starting your own law firm. Rise or fall, it is yours. Isn’t it exciting?
1. Capitalization & individual resources/support
How you structure your firm and your immediate need for a physical office and support staff will largely determine capitalization. Also, unless you bring a substantial (and paying) caseload with you (from what may now be your competitor), consider how to pay your bills. What are your financial obligations? Have you been saving? Will you dip into your retirement? If eligible, will you consider a loan? There is no right or wrong answer, and what you do may largely depend on how much risk you are willing to accept.
You also need to have “that” conversation with your loved ones—the one about the significant time and financial investment this will require, along with stressors such as bookkeeping, marketing, payroll, and others unique to managing a firm. At first, starting your own firm is not all extended weekends and extra time with family. Ensure those closest to you support you and understand you are taking this risk to slowly develop that freedom.
2. Mentorship & team building
Like practicing law itself, mentorship is vital. Seek business and legal guidance from those that successfully blazed this trail and stuck with it! Listen to those that attempted this pursuit (and learn from any mistakes), but break bread with those eager to help you and your firm rise like their firm. Along with picking a mentor, start building your team. Surround yourself with great people that share your firm’s mission, goals, and image, such as your law clerk, paralegal, marketing professionals, and accountant. In your absence, they are essential to keep building your brand and generating business.
3. Learn how to step back / forget the billable hour
After you start your own firm, it is important to remember you are no longer married to the billable hour. Your “value” is not simply a calculation of dollars per hour and hours billed. In fact, any salary you draw may be largely based upon non-legal work. Furthermore, unless you plan to tape your cellphone to your ear (not recommended), it is okay to let that next call go to voicemail. If that causes heart palpitations, hire an answering service. Make time for you. If you crash and burn, so does your firm.
4. Be innovative / reject tradition
Many companies will attempt to sell you something. It is okay to say no and reject traditional notions of law firm management entirely. Case management, legal research, marketing, technology—be innovative! There is no right or wrong answer. How you structure your firm must work for you and your team. Third-party apps exist for calendaring, client notes, and tasking that are more fluid than bigger names and easily shareable with your team. Do not be afraid to learn and ask for help. Learn how to setup a router, code and build webpage content, and file a motion. Nothing is beneath you. Part of rejecting tradition is learning how every facet of your firm fits together. And if it doesn’t fit, axe it without hesitation.
5. Controlled growth & overextending yourself
Before you accept your first client, expand your services, or hire support staff, ensure the infrastructure of your firm is prepared. Can you handle more responsibility? Always ensure your feet are firmly planted. Explosive, high-paying growth is great, but is it sustainable? Learn to control growth before taking that next leap. Explore marketing gradually. Always ensure adequate resources exist for that next case. You risk damaging your brand and reputation by overextending yourself. Worse, you do not provide the quality of service you promised, which was the whole reason you started your firm.
Brian Vasek, Esq. is a 2015 graduate of the William S. Boyd School of Law. He is the managing member and attorney of VASEK LAW PLLC and—when not managing the firm—he focuses almost exclusively on criminal law and providing his clients the time, attention, and care they deserve to achieve great results.
Five Things to Know About Common Pro Bono Myths
By Stephanie D. Bedker
While many attorneys in Nevada embrace the concept of pro bono in theory, they may be reluctant to participate in it for a variety of reasons. This article outlines and dispels five myths surrounding pro bono work.
Myth 1: Pro bono cases require special knowledge or skills that I lack.
Some attorneys refrain from participating in pro bono because they feel they lack legal expertise in areas of law where pro bono work is needed. However, most pro bono work is referred by experienced legal aid organizations and such organizations often offer training courses and resources to prepare attorneys to be effective pro bono advocates. Moreover, their specialists are able and willing to provide exceptional real-time guidance and mentoring as needed.
Myth 2: I do not have time to volunteer.
While attorneys may feel overwhelmed by their existing workloads, pro bono matters are often flexible and attorneys may choose to help in ways that best fit their own busy schedules. This could mean donating as little as an afternoon once a quarter to provide brief consultations for the Ask-a-Lawyer program, spending a few hours a month representing a child in the foster care system, making a one-time investment of a few hours to write a petition or a demand letter, or sharing time-intensive matters between two or more attorneys.
Myth 3: Pro bono matters are just more work.
By participating in pro bono, attorneys may explore a wide variety of legal interests distinct from their usual practice group. Clients are diverse, providing attorneys with an opportunity to step outside their known world to gain a broader perspective. Far from being burdensome, the contrast that pro bono matters offer can be an invigorating and refreshing change from the usual day-to-day work load.
Myth 4: I will become too emotionally involved.
While it may be difficult to balance empathy with objectivity, it is possible to remain level-headed when helping clients navigate difficult and stressful situations. Moreover, some emotional involvement can be beneficial where attorneys are able to channel their passion into effective advocacy.
Myth 5: Pro bono work does not benefit me personally.
Attorneys receive numerous hidden benefits for providing assistance to those in need. Pro bono cases can help associates develop leadership and case- and client-management skills that are crucial to advancing their careers, and with more experience can come greater confidence. In addition to generating greater personal visibility within the firm and the wider community, volunteering can also have a positive effect on the volunteers themselves, as “[t]hose who regularly engage in activities that benefit their community have been shown to live longer, have higher self-esteem, have lower levels of stress and depression and some research suggests, are even physically healthier.” Godfrey, D. & Faith-Slaker, A., Emeritus Attorney Pro Bono Practice Rules: Participation, Recruitment and Case Placement, p. 6 (June 2016).
Attorneys are in unique position to fill a need within their community, while gaining invaluable experiences. The reward is well worth the effort.
Stephanie D. Bedker is a litigation attorney at Greenberg Traurig, LLP. She has participated in a variety of pro bono matters, including the Children’s Attorneys Project, asylum applications, sealing records of sex trafficking victims, and wrongful evictions.
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