COMMUNITY ASSOCIATION MANAGERS COME UNDER ATTACK AGAIN

By Eric Glazer, Esq.

Published July 9, 2012

Remember about two years ago when The Florida Legislature was considering whether or not to de-regulate the community association manager profession?  Licensed managers dodged a bullet and breathed a sigh of relief when that legislation eventually died.  For the time being, community association managers were off the radar and their profession was no longer under attack.  But here we go again…………

Under the guise of their “primary concern in raising these issues is the protection of the public” the Real Property, Probate and Trust Law Section of The Florida Bar has sent a letter to The Florida Bar’s Standing Committee on the Unauthorized Practice of Law seeking to have them classify many of the things that licensed managers routinely do, to be considered the practice of law.

In 1996, The Florida Supreme Court already determined what constitutes the practice of law and held that drafting claims of lien or satisfactions of lien, preparing a notice of commencement, determining the timing, method and form of giving notices of meetings, determining the votes that are necessary for certain actions, addressing questions asking for the application of a statute or rule, and advising associations whether a course of action is authorized by statute or rule all constitute the practice of law, requiring a license from The Florida Bar.

The committee is concerned that community association managers are engaged in the practice of law when determining how much an owner owes to the association in delinquent assessments.  They would also consider the drafting of pre-arbitration demand letters the practice of law and cite to numerous instances where the drafter of the arbitration demand put the wrong language into the letter to the owner.

Conspicuously absent from their letter is any indication as to whether or not these pre-arbitration demand letters were actually drafted by the manager or the association’s lawyer.  Unquestionably, lawyers are normally the drafters of these documents and they are the ones that get it wrong, not necessarily the community association manager. 

Other activities the committee believes should be performed only by a lawyer are:

Preparation of a certificate showing the assessments that are due;

Drafting of amendments to the governing documents;

Determining the number of days required to be provided for notice;

Modification of proxy forms;

Preparation of documents concerning the right of the association to approve new prospective owners;

Determination of votes needed to pass a proposition or amendment to the recorded documents;

Determination of votes needed to establish a quorum;

Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc.;

Identifying, through review of title instruments, the owners to receive pre-lien letters;

Any activity that requires statutory or case law analysis to reach a legal conclusion.

The Committee’s letter concludes by saying “Simply put, many attorneys find they are devoting more and more resources responding to the types of issues noted in this request that would not have occurred, but for what appears to be the continued rendering of legal advice by non-lawyers.”

My initial reaction to this letter is two-fold.  First, if all of these practices require a law license, then there simply isn’t anything else for a licensed Florida community association manager to do.  There simply would not be a need for a license or for community association managers to have any specialized training at all, if they can’t actually utilize that special training in their day to day affairs. In fact, the Committee doesn’t even believe they’re smart enough to know what the posting requirements are for a meeting even though they are required to know if for licensure.   

Furthermore, there is nothing in the current law that prevents associations from being self managed.   So, if all of these tasks require a law license to perform, a law license would also be required by every Board member in a self managed community who decides when, where, why and how to post notices, tell people how much they owe, send warning letters threatening suit etc.  Every association, regardless of whether or not they have a licensed community association manager or not would have their hands completely tied and would need to have an attorney on the payroll at all times and to perform even ministerial tasks.

I for one do not find that I am devoting more and more resources correcting the errors of community association managers.  I do however find myself spending resources dealing with the errors of lawyers who only dabble in community association law, and lawyers who demand reprehensible fees and costs from unit owners struggling to come current on past due assessments to the association.  In fact, just this week, a Florida law firm that practices community association law was sued in a class action lawsuit that alleges the firm deliberately overcharged associations and their unit owners by demanding interest on delinquent assessments that exceeded the amounts they were allowed to charge under the governing documents.  I would also certainly rather have an experienced community association manager prepare documents, notice meetings and send warning letters than have some lawyer do it who never stepped foot in the association law arena. 

Why demand that a community association manager take classes and pass an exam if they are prohibited from putting their greater knowledge to good use?  The truth is…..most of the community association managers and board members I know are smart enough to seek an experienced attorney’s advice before performing most of the tasks at issue in this column.  It’s certainly not a bad idea.  There’s a big difference though in mandating this idea.  In times where associations are struggling to survive financially and every nickel counts, now is not the time for members of The Florida Bar who practice community association law to vote themselves a raise while at the same time turning licensed Florida community association managers into nothing more than glorified book keepers.

Board members and community association managers who wish to voice their opinion in this regard can contact:

Standing Committee on the Unauthorized Practice of Law of The Florida Bar, 651 East Jefferson Street , Tallahassee , Florida 32399-2300 .