September 30, 2014
“A new Florida law will allow homeowner association managers statewide to continue performing aspects of their jobs that attorneys had argued should have been their purview.
The legislation came in response to a formal Florida Bar Association opinion saying that community managers were illegally practicing law without a license.
The Bar argued that community association managers needed to hire attorneys for certain administrative duties that the managers had been handling themselves.
But Florida homeowner association groups protested the Bar decision, saying it would put community association managers out of work and increase costs to associations already grappling with foreclosures, delinquent dues and widening budget shortfalls.
The legislation signed into law by Gov. Rick Scott protects “more than 6 million Florida homeowners from what would have amounted to a tax increase,” said Mark Anderson, a lobbyist for a community association manager trade group that brought the issue to the attention of legislators last November.
“The governor’s action will also keep more than 18,000 licensed professionals on the job so they can continue to keep home values competitive and homeownership affordable, as they have done for the last 40 years,” Anderson said.
The Florida Bar was asked to review the duties of community association managers to see if any bordered on the unlicensed practice of law — a third-degree felony in Florida punishable by up to five years in prison, five years of probation and a $5,000 fine.
The Bar came with up 14 proposed clarifications to a law established in 1996. Those clarifications are awaiting review by the State Supreme Court, which has no deadline to issue an advisory opinion.
In response, the homeowner groups — there are an estimated 26,000 community associations across Florida — pushed for legislation to counteract the proposed changes this spring. They believe the new law protects managers and their duties.
“I became very concerned that the approach taken by the Florida Bar would ultimately require community associations to retain attorneys for ministerial tasks at significantly increased cost,” said Rep. Dana Young, R-Tampa, a member of the Civil Justice Subcommittee and a lawyer.
“The last thing we should do is increase financial burdens on our Florida homeowners without any measurable benefit.”
The bar’s proposal could have required associations to seek legal assistance for things such as drafting liens, sending homeowners letters demanding changes or payment of delinquent dues and collecting debts, in some cases.
But lawyers who do work for homeowners association argued that a majority of the tasks in question were already being handled by lawyers.
They said that the Bar’s proposed changes were never as extreme as opponents made them out to be and contended that hiring an attorney would save community groups from litigation and costly legal mistakes.
Dan Lobeck, a Sarasota lawyer who represents homeowner associations, said he is not sure how the changes to the law will affect the Supreme Court’s eventual opinion the Bar Association’s requested.
Now that lawmakers have weighed in, the state’s highest court may elect to drop the matter, he said.
“I do not think this new law will change anything, really, because the status quo is that in 99 percent of these cases, delinquency letters and the like, are already handled by attorneys,” Lobeck added.
“Simply stated, the managers were trying to take business from attorneys,” he said.
“They were still going to charge delinquent homeowners fees for the services, but they were trying to shift the fees for them from attorneys to themselves.”