Community Association Managers Beware: Unlicensed Practice of Law
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Community Association Managers (CAMS) in Florida are vital to the survival of condominium associations and homeowners’ associations. Associations and their board members rely on CAMS to ensure the associations run smoothly. CAMS must be licensed through the Florida Department of Business and Professional Regulation, and are governed by the Florida Statutes and the Florida Administrative Code. See Fla. Stat. 468.431-461.438 and Florida Administrative Code 61E14-2.001.
By definition, a CAM is required to possess “specialized knowledge, judgment, and managerial skill” in, among other things, controlling or disbursing funds; preparing budgets or other financial documents; assisting in the noticing or conduct of meetings; and collecting amounts due the association before the filing of a civil action. However, when performing their day-to-day duties, CAMS must be cognizant of whether they are engaging in the unlicensed practice of law.
Therefore, all Florida CAMS should be familiar with two Florida Supreme Court cases that provide guidance on what is and is not the unlicensed practice of law in their day-to-day activities. See The Florida Bar re Advisory Opinion – Activities of Community Association Managers, 177 So. 3d 941 and 681 So. 2d 1119.
As a general rule, CAMS’ activities that are ministerial in nature and do not require significant legal experience and interpretation or legal sophistication or training do not constitute the practice of law. These activities, that do not constitute the practice of law include:
- preparation of Certificate of Assessments due once a delinquent account is turned over to a lawyer;
- preparation of Certificate of Assessments due once a foreclosure against the unit has commenced;
- preparation of Certificate of Assessments due once a member disputes in writing to the Association the amount alleged as owed;
- modification of limited proxy forms that involve administerial matters, such as modifying the form to include the name of the community association and the phrasing of certain “yes” or “no” voting questions;
- completion of certain Florida Secretary of State forms;
- preparation of meeting agendas and notices of board meetings; and
- preparation of a pre-arbitration demand letter.
On the other hand, activities that constitute the practice of law and for which CAMs should not engage, include the following:
- preparing a Claim of Lien;
- preparing a Satisfaction of Claim of Lien;
- preparing a Notice of Commencement;
- determining the timing, method and form of giving notice of meetings;
- drafting amendments to the Association’s Declaration of Covenants, By Laws and Articles of Incorporation;
- preparing, reviewing, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts; and
- any activity that requires statutory or case law analysis to reach a legal conclusion.
While the activities listed above provide a good starting point to CAMs for purposes of what is and is not the unlicensed practice of law, it is not meant to be all inclusive. When in doubt about whether certain activities constitute the practice of law, CAMS should consult with the association’s attorney.