by Michael J. Gelfand, Esq. / Published Jul 2015
Is it silly to ask: how can you conserve your legal budget? Or in simpler terms, how can counsel save you money? We have suggested that an association’s manager undertake certain initial efforts, frequently communicating an initial demand for compliance with restrictions, and soliciting contract proposals.
Thus, budgets can be safeguarded for the day when a situation requires counsel. That said, staying within a budget has its limits. You do not want to cross the line where you are beginning to be proverbially “penny wise and pound foolish.” Does that description apply to your association?
Managers frequently complain that their association demands the manager to perform legal work beyond the manager’s training. While a manager understands their association’s desire to save money, the demand pushes the manager beyond his or her boundaries of training and the law, exposing the association, the manager, and their management company to liability when the manager’s “advice” is not correct.
This is where the refrain “Just Say No” may fit. Just as doctors, architects, and other professionals are licensed to keep quacks and imposters from injuring the public through improper diagnoses and plans, managers are licensed to protect unit owners from mismanagement, and attorneys are licensed to differentiate who is qualified to undertake legal work. When a layperson is asked to perform the work of a professional, being able to simply say “no” can avoid creating a worse situation.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & Arpe, P.A.
Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners’ Association Mediator, an Arbitrator, and Parliamentarian. He is the Director of the Real Property Division of The Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at Michael@flcaj.com or (561) 655-6224.
To help clarify for association directors what is legal work in the community association context, the Supreme Court of Florida was requested to identify specific boundaries, including whether certain activities performed by non-lawyer association managers constitute the unlicensed practice of law. In The Florida Bar Re: Advisory Opinion-Activities of Community Association Managers, 40 Fla. L. Weekly S 273 (Fla., May 14, 2015), the Florida Supreme Court approved The Florida Bar’s Advisory Opinion regarding the activities of community association managers.
The Advisory Opinion approved by the Court set boundaries for a number of activities. Thus, the following constitute the practice of law, and they are illegal for managers to undertake:
This list is not all inclusive. Some areas require a specific analysis.
The Court also identified conduct that normally is not the practice of law when undertaken by management. This includes drafting of certificates of assessments (estoppel letters) and pre-arbitration (enforcement) demand letters.
Much of the line drawing of what is management, versus what is the illegal practice of law appears to many to be a matter of common sense. The key for the Court when differentiating what is and what is not the practice of law appears to be whether legal analysis is necessary. Put in other terms, if the answer to a situation is spelled out in the plain and clear language of a statute or contract, without any addition, then normally answering the question would not be the practice of law.
A delicate, but practical, balance is the result. On the one hand, associations may want to save money by requesting managers to perform activities, which are legal in nature. On the other hand, managers should understand how to say no when requested to practice law without a license!
Thus, when an association requests a manager to create a contract, to draft an amendment or a motion to approve an amendment, or to determine when a community’s covenants have to be restated, the association not only places the manager in a precarious position, but creates significant risk of association, officer, director, manager, and management company liability. That is when the manager needs to be able to just say “no.”
Can an owner bring in an “emotional support animal” after agreeing not to replace his or her pet, even if the agreement is in writing? Does a change in the owner’s circumstances after a settlement justify overriding the terms of a settlement agreement? How can an owner’s claim of a “new” handicap status undermine what was supposed to be a “done deal?” How can an association protect itself?
A recent Florida appellate court decision held that a diagnosis of chronic depression may justify overriding the owner’s earlier agreement not to obtain another pet and to move from the community if she acquired another pet. In State of Florida v. Leisure Village, Inc. of Stuart, 40 Fla. L. Weekly D 935 (Fla. 4th DCA, April 22, 2015), the facts indicated that Hoffman and Leisure Village agreed that Hoffman would keep her current pet, but prohibited another pet and required her to move if she did acquire another pet.
After Hoffman’s dog died, Hoffman was diagnosed with chronic depression, and her doctor recommended that she get an “emotional support dog” to help with her treatment. Although Leisure Village denied her request for an accommodation, Hoffman acquired another dog.
Leisure Village sought to enforce the earlier stipulation agreement, which was followed by Hoffman’s fair housing complaint to the U.S. Department of Housing and Urban Development (HUD) claiming the association’s efforts violated the Fair Housing Act. While the complaint to HUD was pending, the trial court ordered Hoffman to remove her dog.
Three months after the trial court ordered Hoffman to remove her dog from the property, the Florida Commission on Human Relations found cause for the accommodation complaint; thus, Hoffman again sued Leisure Village this time alleging that the denial of the request was a discriminatory housing practice. The trial court dismissed Hoffman’s complaint.
The Florida appellate court reversed the trial court’s decision, holding that “administrative remedies” were not exhausted. Procedurally, the court could not proceed to a decision while the HUD complaint was pending. In essence, when the same fair housing claim is pending in two forums, in court and before HUD, the court must allow HUD to complete its effort. Therefore, the trial court order in the first case requiring the removal of the dog was premature because HUD had not completed its investigation.
The moral of the story is to take care in coming to an agreement with an owner when dealing with pets. What worked in the past may not work in the future. Drafting agreements to define a dog as a “dog” or “animal,” not as a “pet,” to minimize fair housing issues may be the first step.