Community managers fear higher fees under a Florida Bar committee request


Article Courtesy of The Palm Beach Post

By Kimberly Miller

Published September 18, 2012

Some of Florida’s more than 33,000 community association managers are fearful an upcoming Florida Bar decision could end up costing struggling communities more money in legal fees.

The bar’s committee on the unlicensed practice of law will meet Thursday to discuss whether it wants to ask for a formal advisory opinion on whether 14 specific functions often performed in the running of a community association constitute legal practice and should be completed only by an attorney.

If approved, the opinion must get the blessing of the Florida Supreme Court. But opponents are warning that a ruling in the committee’s favor could mean higher costs to the estimated 1.5 million residents living in Florida’s managed communities.

“There are things community managers can do in some cases at no additional charge without sending to an attorney,” said Brad van Rooyen, a Tampa-based community manager and executive director of the Chief Executive Officers of Management Companies, a Florida community management association. “If this goes through, associations could see a 30 to 40 percent increase in costs to operate.”

The 14 items being discussed that would require an attorney include determining the number of days needed to provide statutory notice, reviewing contracts, such as for cable television, and determining the number of owners’ votes needed to establish a quorum.

The request for a formal opinion was made by the Real Property Division of the Florida Bar’s Real Property, Probate and Trust Law Section. A 1996 opinion is on the books.

West Palm Beach attorney Michael Gelfand, who is director of the Real Property Division, but does not speak on behalf of the Florida Bar, said the 1996 rules need to be clarified on what constitutes the unlawful practice of law to save associations money.

He said association managers, who are regulated by the Florida Department of Business Regulation, are often pushed by their volunteer board members to save money by performing duties that should be handled by an attorney. It can end up costing associations more in the long run to undo faulty votes or defend legal claims made because of illegal association decisions, he said.

Even seemingly simple things, such as establishing a quorum, can be misconstrued, Gelfand said.

“The short term savings there are could be long term expenses,” Gelfand said. “It may seem simple just to write a document that says ‘no pets’, but there are federal, state and local laws to follow.”

Donna DiMaggio Berger, an attorney with the Margate-based Katzman Garfinkel & Berger and an expert in community association law, has mixed feelings. While a clarified opinion could help community managers decline work that should be done by an attorney, she questions the motivation.

So does van Rooyen.

“Why leave the decision on this up to the ones who can profit from the situation?” he said.

The meeting is scheduled to begin at 10 a.m. Thursday at the Buena Vista Palace Hotel & Spa in Lake Buena Vista.