Amending an Association’s Governing Documents is the Practice of Law…at least in Florida
November 27, 2015
On May 14, 2015, the Supreme Court of the State of Florida rendered an advisory opinion on the activities of community association managers (which can be found here). The opinion addressed whether certain activities were, in the opinion of the Court, found to be the unlicensed practice of law. The Court held that certain practices being done by community association managers in Florida were the unlicensed practice of law. In particular, the highlight of the Court’s opinion was that: the drafting of documents (and certificates of amendment that are recorded in the official records) to the declaration of covenants, bylaws, and articles of incorporation/charter when such documents are to be voted upon by the members of the association constitute the unauthorized practice of law. In other words, the preparation of CCRs, bylaws, charters, and any amendment thereto by a non-lawyer is the unauthorized practice of law.
Admittedly, Tennessee is not Florida. That being said, in practicing in this field, we often see documents prepared by non-lawyers, be they community association managers or well-intentioned board members. The issue is that these documents, nearly universally, create more problems than they solve. Sometimes they do not address the issue they were intended to address. Sometimes they are improperly executed. Sometimes everything is wrong with them. In one noted example, we found an association with no lien rights that filed over one hundred (100) liens on property. While we were able to resolve the situation, the issue was created because well-intentioned board members sought to save money by doing the documents themselves. Unfortunately, fixing the problems caused by non-lawyers usually costs more.
When you consider amending your documents, be advised that your association should have legal representation. The documents being amended will impact your development for years to come. Whether you are aware of it or not, small changes in your governing documents may have significant impacts in how your Association operates.
The advisory opinion of the Supreme Court of the State of Florida is a reminder that we are dealing with legal documents. Just like you would not have a lawyer conduct your heart surgery, you should not have a non-lawyer drafting your association’s governing documents.
Tags: association, board of directors, bylaws, CCRs, Charter, condominium, condominium association, homeowner association, homeowners, homeowners association, Horizontal Property Act, laws, Master Deed, non-profit corporation, protective covenants, Tennessee, Tennessee Condominium Act, tn, unit