In its decision made in 1996, Florida Bar re: Advisory Opinion – Activities of Community Association Managers, the Florida Supreme Court issued an advisory opinion regarding whether or not certain activities of licensed Community Association Managers (CAMS) constitute the unlicensed practice of law. In 2012, the Standing Committee on Unlicensed Practice of Law of the Florida Bar (the “Committee”) received a new petition to review these activities and some others, to clarify or update the decisions made in 1996 and advise the Supreme Court of its findings. Public hearings were held and a report was submitted to the Court by the Committee in 2013. The Court issued its updated ruling on these issues on May 14, 2015, in a similarly titled decision, Florida Bar re: Advisory Opinion – Activities of Community Association Managers, Case No. SC13-889. In the decision, there is some clarification, but also unresolved questions on many tasks.
Under the new decision, the Court stated that the decisions made in 1996 remain correct and appropriate and, in general, all of the activities identified in that decision as the unlicensed practice of law remain so, and those that were not are still not. However, in response to the 2012 petition, which had requested clarification on fourteen (14) specific matters, some of which were from the 1996 decision, and the Court adopted, in their entirety, the recommendations provided by the Committee in its 2013 report. More specifically, the Court agreed with the Committee that:
- the following tasks performed by CAMS are not considered the unlicensed practice of law under this decision: preparation of a Certificate of assessments due once the delinquent account is turned over to the attorney for the association; preparation of a Certificate of assessments due once foreclosure against the unit has commences; preparation of a Certificate of assessments due once the member disputes in writing to the association the amount alleged as owed; and, drafting pre-arbitration demand letters required by Section 718.1255 of Florida Statutes; and
- the following tasks performed by CAMS are considered the unlicensed practice of law under this decision: drafting of amendments to the declaration of covenants or condominium, bylaws, and articles of incorporation, when such documentation is to be voted on by the members, and certificates of amendment that are recorded in the official records; preparation of construction lien documents; preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, and the like; and, any activity that requires statutory or case law analysis to reach a legal conclusion.
The difficult part of this decision involves the following tasks performed by CAMS that may or may not be considered the unlicensed practice of law, depending upon the facts and circumstances involved:
(1) determination of number of days to be provided for a statutory notice;
(2) modification of limited proxy forms promulgated by the State;
(3) preparation of documents concerning the right of the association to approve new prospective owners;
(4) determination of affirmative votes needed to pass a proposition or amendment to recorded documents; and
(5) determination of owners’ votes needed to establish a quorum; and, identifying through review of title instruments, the owners to receive pre-lien letters.
While some examples are provided in the decision to illustrate the concepts, there remains many unanswered questions regarding particular tasks.
With respect to determining the number of days to be provided for a statutory notice, the decision indicates that if the determination requires the interpretation of statues, administrative rules, governing documents or rules of civil procedure, this would constitute the unlicensed practice of law for a CAM. If no such interpretation is required, the task would not then be considered the unlicensed practice of law.
On the modification of limited proxy forms, the decision provides examples of activities that would or would not cross the line. If there is no discretion involved in the phrasing of the issue on the limited proxy, it would not constitute the unlicensed practice of law by a CAM, such as “Do you want to provide for less than full funding of reserves than is required by Section 718.112(2)(f), Florida Statutes, for the next fiscal/calendar year? _____ YES ____ NO.” If the question requires discretion in the phrasing or involves the interpretation of statute or legal documents, the CAM may not modify the form.
For the preparation of documents concerning the right of the association to approve new prospective owners, if there are potential legal consequences to the association in the decision of the board, or requires the exercise of discretion or the interpretation of statutes or legal documents, preparing the documentation would then be the unlicensed practice of law. An example provided in the decision is when the governing documents contain a limitation on the size of the pet an owner may have, and the application reflects a pet that is larger than the limitation, the CAM may prepare such a document without it being the unlicensed practice of law.
When faced with determination of affirmative votes need to pass a proposition and/or amendment to the recorded documents, or in making the determination of owners’ votes needed to establish a quorum, the decision indicates if the determination requires the interpretation and application of the statutes and of the governing documents, doing so would constitute the unlicensed practice of law. If the determination on the issue can be made without such interpretation and application, then doing so would not constitute the unlicensed practice of law. The decision did not provide examples to clarify this issue, although one such situation would be if the document being amended indicated the requirement of a set number of owner votes to pass the proposition, that would seem to be a ministerial act, not the unlicensed practice of law. For example, if a declaration provides that an amendment requires the approval of 50 units, there is no interpretation requirement.
Identifying, through the review of title instruments, the owners to receive pre-lien letters is an issue that is not clear from the decision. While it indicates that a CAM may search the public records to identify who has owned a particular property over the years and just makes a list, this will not be considered the unlicensed practice of law. If the list is then used to make a legal determination of who needs to receive a pre-lien letter, this does constitute the unlicensed practice of law. The logical conclusion on this point is that making such a determination does constitute the practice of law and should be completed by an attorney.
While some clarification was provided in the decision, there are many issues which remain unclear. Whenever there is a doubt as to whether a task might fall into the category of the unlicensed practice of law, the matter should be referred to the association attorney.