While community association managers in Colorado have been working through the state mandated licensure process, the ‘hot button’ topic of discussion in Florida has been the Florida Supreme Court’s May 14, 2015 Advisory Opinion regarding the unlicensed practice of law by non-lawyer community association managers. While the decision is not binding in Colorado, it is likely to spark debate and conversation among community association managers for years to come. Did the Florida Supreme Court go too far? Will a similar decision issue in Colorado in the future?
The highlights of the Court’s opinion are as follows:
- The preparation of construction lien documents would constitute the unlicensed practice of law;
- Engaging in activity requiring statutory or case law analysis to reach a legal conclusion would constitute the unlicensed practice of law;
- The preparation of a certificate of assessments due once a member disputes in writing to the association the amount alleged as owed does not constitute the unlicensed practice of law;
- The drafting of documents (and certificates of amended that are recorded in the official records) to the declaration of covenants, bylaws and articles of incorporation when such documents are to be voted upon by the members would constitute the unauthorized practice of law;
- The determination of the number of days to be provided to a homeowner in a statutory notice may constitute the unauthorized practice of law;
- A substantive change to a limited proxy form would constitute the unauthorized practice of law;
- The determination of an owners’ votes needed to establish a quorum may constitute the unauthorized practice of law if it involves the interpretation and application of both the governing documents and statutes to make the determination;
- The drafting of a pre-arbitration demand letter does not constitute the unauthorized practice of law;
- The preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts would constitute the unauthorized practice of law; and
- If a licensed CAM is only searching the public records to identify who has owned the property over the years, then such review of the public records is ministerial in nature and not the unlicensed practice of law; but, if the manager then utilizes the list and makes a legal determination of who needs to receive a pre-lien letter; this would constitute the unauthorized practice of law.