Often times, a community association relies on an attorney to assist with the modification of its governing documents, and to provide answers to questions that affect not only the rights of the community association but its members as well.
There are certain documents that must be completed by an attorney, based on the fact that they involve the interpretation of Florida Statutes while requiring a level of legal expertise and a familiarity with the Association’s Articles of Incorporation, Bylaws, Covenants, and Declarations. Further, based on the fact that the officers and directors of an association owe a fiduciary duty to its members, it is important to keep in mind that any document pertaining to their obligations, or the obligations of its members, be drafted properly.
What HOA activities require an attorney?
The following activities are considered the unlicensed practice of law if performed or completed, on behalf of the association, by anyone other than an attorney:
- Drafting a claim of lien;
- Drafting a satisfaction of claim of lien;
- Drafting a Notice of Commencement Form;
- Determining the timing, method, and form of giving notice of meetings;
- Determining the votes necessary for certain actions, which would entail interpretation of certain statutes and rules;
- Answering a community association’s question about the application of law to a matter being considered,
- advising a community association that an action or course of action may not be authorized by law or rule;
- Drafting any document that must comply with Florida law; and
- Drafting the documents required to exercise a community association’s right of approval or first refusal to a sale or lease.
Due to the fact that such actions may affect, impair, or enhance the rights of numerous homeowners and their property interests, an attorney should be the one to draft and advise on them. Allowing anyone other than an attorney to complete these tasks opens up the association to liability, as well as the possibility of Florida Statute violations.
What are some HOA activities that are not considered the unlicensed practice of law?
Based on a Florida Advisory Opinion issued in 1996 and 2015 by the Florida Supreme Court, there are certain documents that can be drafted without the assistance of an attorney. Although this opinion references the actions of a Community Association Manager, the corollary is that it remains applicable to our discussion on HOA board conduct and the conduct of its members. With regard to the actions of non-lawyers, some of the following tasks may be performed:
- A change of registered agent or office for corporation’s forms;
- Annual corporation reports;
- First and second notices of the date of the election;
- Written notices of the annual meeting;
- Annual meeting or board meeting agendas;
- Affidavits of mailing; and
- Completing a BPR Form 33-032.
If the additions or amendments pertain specifically to clerical matters and do not involve the interpretation of statutes, documents, or providing legal advice, the above-stated actions may be performed by a non-lawyer.
What are some areas of HOA law that remain unclear?
The Courts have deemed the following areas “grey”, therefore depending on your individual circumstances, you may or may not need an attorney to assist with the following:
- Editing a limited proxy form IF the modification involves:
- Filling in the name of the community association,
- Filling in the name and address of the owner,
- Phrasing a yes or no voting question concerning either waiving reserves or waiving the compiled, reviewed or audited financial statements requirement;
- Phrasing a yes or no voting question concerning carryover of excess membership expenses; and
- Phrasing a yes or no voting question concerning the adoption of amendments to the Articles of Incorporation, Bylaws, or condominium docs.
In addition to the Florida Supreme Court Opinions, an Association’s Declaration and Bylaws typically delineate the powers that a board of directors and its officers possess specifically with regards to the amendment of any governing documents. If such language is not included within the Association’s governing documents, an attorney should be consulted in order to determine how they should be amended.
If you have any questions regarding the actions of your homeowners’ association, or if you need assistance with drafting any of the above-stated documents, do not hesitate to contact The Orlando Law Group at 407.512.4394 to schedule a consultation today.