Community Managers and the Unauthorized Practice of Law

by Tom Schild

Community association managers regularly assist Condo, Co-op and HOA boards in hiring contractors, collecting assessments, adopting community rules and many other tasks necessary to govern a community. Managers must be knowledgeable of a community’s declaration, bylaws and other governing documents, as well as variety of state, local and federal laws which impact association governance.

However, managers must be careful not to provide legal opinions or prepare documents which constitute practicing law. 

The Florida Supreme Court recently provided guidance on the boundary between activities which may be performed by a community manager and activities which require an attorney.  In a May 2015 advisory opinion, the Court commented on numerous specific tasks related to community association governance.  Although the Court ruling is directly applicable only in Florida, it is instructive for community association managers in Maryland and the District of Columbia.

The standard applied by the Court is that the practice of law “includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.”

Nearly 20 years ago, the Florida Supreme Court advised regarding the activities which constitute the unlicensed practice of law and are not allowed to be performed by Florida community managers.   These include:

(1) drafting assessment liens and lien releases;

(2) determining the timing, method and form of giving notice of meetings;

(3) determining the votes necessary for certain actions which require the interpretation of statutes and rules;

(4) advising about the application of law to a matter being considered; and

(5) advising that an action may not be authorized by law, rule or the association’s governing documents.

This was confirmed by the Court’s 2015 advisory opinion. The new ruling also concluded that additional activities which constitute the practice of law include drafting amendments to the association declaration and bylaws; determining who must receive a pre-lien letter; and analyzing statutory or case law to reach a legal conclusion.

However, tasks which are ministerial or do not require interpretation of the association governing documents or law do not constitute the practice of law, and may be performed by community association managers.  This includes preparing certification of the amount of assessment due by an owner; determining the number of days’ notice  required for an action or meeting, if it does not involve interpretation of statutes, rules or governing documents; and drafting meeting notices and mailing affidavits.

THE BOTTOM LINE:  While condominium, co-op and homeowner association managers must have general knowledge of the association’s governing documents and laws related to association governance, managers should avoid the unauthorized practice of law and consult an attorney on matters which require the interpretation of  governing documents or the application of state, local or federal law.

POSTED BY:  Thomas Schild Law Group, LLC

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