Happy New Year to everyone.  In the condo and HOA world, with a few exceptions, the new year certainly means one thing; the annual meeting is almost here.  I’m often asked whether or not I recommend that an attorney be present at the annual meeting or if the association should simply allow the community association manager to run the show.  Each year I say that I think it’s a wise move to have an attorney present because of the plethora of legal issues that come up during the meeting and/or election.  This year I’m doubling down on that suggestion and taking the position that it’s as close to mandatory as you can get to have your attorney present.

In May, The Florida Supreme Court published an opinion that severely curtailed what a licensed community association manager can and cannot do, without being accused of practicing law without a license.  Here are some of the highlights of that opinion:

1. The Florida Supreme Court held that it is considered the practice of law to determine the number of owners needed for a quorum, if the determination must be made by a review of the association’s governing documents.

 

2. The Florida Supreme Court held that it is considered the practice of law to determine the votes necessary for certain actions which would entail interpretation of certain statutes and rules.

 

3. The Florida Supreme Court held that it is considered the practice of law for a CAM to engage in activity requiring statutory or case law analysis to reach a legal conclusion.

 

As we all know, that’s the very first thing that needs to be done at your annual meeting is to determine whether or not a quorum has been obtained.  That needs to be done by reviewing the bylaws which are part of the association’s governing documents.  Therefore, a CAM cannot perform this function.

In regards to point number two, in the condo scenario the manager must determine whether or not 20% of the eligible voters participated in the election in order to make the election valid.  We learn that by reading the statute.

In regards to point number three, in both the condo and HOA scenarios, we determine who is eligible to vote in a myriad of ways including interpreting other statutes in order to determine under what scenario a person’s right to vote may be denied.  Furthermore, we interpret arbitration decisions and case law to determine if proper notice was given before suspending an owner’s right to vote and we review the governing documents to determine if the “as amended from time to time” language is contained therein in order to advise the association as to whether or not the laws that allow you to suspend a person’s right to vote even apply in that community.

In addition to all that, the documents need to be reviewed to determine if voting certificates are required and under what circumstances.  Case law needs to be interpreted again if the association has failed to use voting certificates in the past but wants to do so for the first time that evening.  Arbitration decisions regarding married couples voting need to be analyzed.  The voting certificates need to be examined to ensure that all owners executed the voting certificate.  This often requires immediate access to the public records and a review of the deed to the property.  Certainly deed review and analysis of ownership and whether or not the voting certificate comports with the deed is considered the practice of law.

Often times issues arise regarding powers of attorney and corporate ownership. Finally, the statutes and rules must be interpreted in order to determine when the last ballot may be cast, who may assist in the election process and how the votes are to be tallied.   God forbid there is a tie.  Now we need to interpret the administrative code yet again.

When all is said and done, legal analysis needs to be made as to who won, and the governing documents again reviewed to determine whether or not the new Board can hold their organizational meeting that evening.

An error in any of the foregoing steps can result in an association having to defend an election challenge.  Worse yet, a community association manager who performs the functions mentioned above without counsel guiding the way, could face discipline if a resident or sore looser decides to file a complaint against them with the DBPR.

So, this year and into the future, there is no need to ask me whether or not I believe an association should have their counsel present at the annual meeting.  I think the answer is rather obvious.  To clarify however, your community association manager should also be present at the meeting because their assistance to the attorney is often times invaluable and time saving.

And one final suggestion……… put out a nice spread.  I promise the fighting will be less intense.

REMINDER:  START THE YEAR OFF RIGHT!  GET CERTIFIED AND GET EDUCATED!  OUR FREE BOARD CERTIFICATION COURSES ARE ON JANUARY 27^TH, 2016 AT THE HARD ROCK IN HOLLYWOOD AND FEBRUARY 13^TH, 2016 AT THE HOLIDAY INN AT UNIVERSAL STUDIOS IN ORLANDO.  TO REGISTER GO TO: WWW.CONDOCRAZEANDHOAS.COM 

 

 

REMEMBER: FAILURE TO GET CERTIFIED WITHIN ONE YEAR BEFORE GETTING ON THE BOARD OR WITHIN 90 DAYS OF ACTUALLY GETTING ON THE BOARD MEANS YOU ARE REMOVED FROM THE BOARD.  DON’T LET THAT HAPPEN TO YOU.  OUR COURSE PROVIDES BOARD CERTIFICATION TO CONDO AND HOA DIRECTORS AND TWO LEGAL UPDATE 2016 CREDITS AND ONE HUMAN RESPURCE CREDIT TO ALL FLORIDA COMMUNITY ASSOCIATION MANAGERS.