Association Services
General Corporate Counsel for Community Associations
First and foremost, an association needs an experienced attorney to provide counsel to its volunteer board. The role of counsel is to advise on real estate and corporate matters to enable the association to operate in compliance with its governing documents and applicable laws. The goal should be to preserve and enhance property values and enable owners to enjoy the benefits of property ownership. But effective counsel does more. Most associations occasionally encounter and must address non-recurring issues, such as insurance claims after casualty loss, employment issues, construction disputes, discrimination claims, and defense of personal injury or damage claims. A critical aspect of my job as general counsel is to assist with the handling of such matters, including filing and pursuing appropriate insurance claims and locating an expert, or team of professionals, to provide assistance. Knowing who to go to and what to expect is a learned facet of experienced counsel.
Daily Activities of Corporate Counsel
A good part of most days is spent on the phone or exchanging emails with Association representatives to answer inquiries about day-to-day operations. Clients are provided with my direct phone number and an assurance that I will make every effort to answer or return every phone call the same day as received. With over 35 years of experience, issues that are troubling or complex to a client are routine and are answered in a few minutes to provide direction and peace of mind without expensive research. Confirming opinion letters are provided upon request.
Document Interpretation
Perhaps the most common task of counsel is to interpret governing documents. Being familiar with the various forms of documents customarily used in southwest Florida with the benefit of many previous interpretations, and knowledge of court cases and arbitrations addressing the same or similar language in other documents, enables effective counsel to provide definitive interpretations without the indecisiveness so dreaded by board members and managers.
Governmental Regulation
There are many aspects to this area of community association practice. Counsel must be aware of the local, state and federal laws that impact association operations, the effective dates of the laws, whether the laws apply prospectively or retroactively, whether the purported retroactive application runs afoul of constitutional prohibitions on unlawful impairment of contract, and if the law or governing document takes precedence. One of the benefits of a board certified real estate lawyer as counsel is a broad knowledge of laws affecting real property and community associations, not just the chapter in the Florida Statutes that pertains to a particular type of community.
Covenant Enforcement
Social commentators make fun of community associations and often speak of the infamous dog or parking cases in which there is a perception of overregulation. Effective counsel can assist an association with the adoption of reasonable restrictions and a system likely to result in amicable resolution of enforcement matters. Neighborly work-outs without expensive litigation should be the goal. You may not want to hear it, but experienced counsel will deter an overly aggressive board from pursuit of a matter that is not in the best interest of the community. I pride myself on keeping association clients out of arbitrations and litigations, but am prepared to forcibly pursue matters in which the owner is not being reasonable and an adversarial situation is the only solution.
Contract and Lien Matters
It often comes as a surprise to those not familiar with association operations that a significant portion of time spent by counsel is reviewing and preparing construction contracts. As has been said on many occasions, community associations are akin to mini-municipalities. A key job of any municipality is to take care of its infrastructure. Experienced counsel can provide direction on whether an expert should be retained to prepare plans and specifications, and if so, review the boilerplate AIA or comparable engineering contract documents to conform to Florida law and better protect the interests of an association. Smaller jobs typically involve the preparation of an addendum to supplement the bare-bones proposal from the contractor, or a more comprehensive contract. It is critical for associations and management companies to consult with counsel to make sure the complex construction lien laws are fully complied with as those laws are unforgiving in a number of respects with significant penalties for failure to cross ‘t’s and dot ‘i’s.
Document Amendments
The preparation of many sets of governing documents for developer clients, and hundreds of amendment packages for associations, enables me to know what is wrong or missing from your governing documents, and how to fix it. My expertise in the preparation of amendments is illustrated by the fact I am the author of the chapter addressing amendments & mergers in Florida Condominium and Community Association Law, as published by the Florida Bar in 2004 and updated in 2007, 2010 & 2016.
Notices and Voting Materials for Board and Membership Meetings
The foundation for an effective meeting is to know the business to be conducted and how to go about it. Counsel can review notices, agendas, proxies, ballots and other materials and provide comment, or assist in the preparation of suitable packages. My practice is to provide documents in ‘word’ format so the notice packages can be easily modified in the future to change dates and the like, and then sent to counsel for a quick review to make sure no laws have changed or other adjustments necessary.
Borrowing and Loan Issues
More and more communities are recognizing a need for ready cash in the event of a hurricane and other casualty loss. Insurance companies rarely settle such matters without considerable delay, and under the best of circumstance there are likely to be significant costs and expenses not covered by insurance. Establishing a line of credit with a lender is often the preferred choice to address this issue. I have assisted with the negotiation and closing on many loans, and presented a lecture on Association Loans: Authority, Procedures, and Borrower Opinion Letters at an advanced condominium seminar sponsored by the Florida Bar in 2009, and again in 2017 with an emphasis on repayment options.
Collections and Foreclosures
The economic downturn over the last 8 years has resulted in numerous assessment delinquencies. Let me assist your association to put together a plan and team to effectively run the minefield of obstacles presented by upside down units, lender foreclosures, reverse mortgages, abandoned and deteriorating properties, and short sales. Courses of action appropriate to one situation do not apply to other situations. Effective counsel will avoid situations where an association is incurring legal expenses and court costs out-of-line with expected return. I participated as a panelist on the topic of “Distressed Community Associations-Collecting from Everyone- Owners, Tenants, Purchasers, Lenders- Strategies and Limits” at the Thirty-Sixth Institute on Condominium and Cluster Developments sponsored by the University of Miami School of Law in 2011.
First and foremost, an association needs an experienced attorney to provide counsel to its volunteer board. The role of counsel is to advise on real estate and corporate matters to enable the association to operate in compliance with its governing documents and applicable laws. The goal should be to preserve and enhance property values and enable owners to enjoy the benefits of property ownership. But effective counsel does more. Most associations occasionally encounter and must address non-recurring issues, such as insurance claims after casualty loss, employment issues, construction disputes, discrimination claims, and defense of personal injury or damage claims. A critical aspect of my job as general counsel is to assist with the handling of such matters, including filing and pursuing appropriate insurance claims and locating an expert, or team of professionals, to provide assistance. Knowing who to go to and what to expect is a learned facet of experienced counsel.
Daily Activities of Corporate Counsel
A good part of most days is spent on the phone or exchanging emails with Association representatives to answer inquiries about day-to-day operations. Clients are provided with my direct phone number and an assurance that I will make every effort to answer or return every phone call the same day as received. With over 35 years of experience, issues that are troubling or complex to a client are routine and are answered in a few minutes to provide direction and peace of mind without expensive research. Confirming opinion letters are provided upon request.
Document Interpretation
Perhaps the most common task of counsel is to interpret governing documents. Being familiar with the various forms of documents customarily used in southwest Florida with the benefit of many previous interpretations, and knowledge of court cases and arbitrations addressing the same or similar language in other documents, enables effective counsel to provide definitive interpretations without the indecisiveness so dreaded by board members and managers.
Governmental Regulation
There are many aspects to this area of community association practice. Counsel must be aware of the local, state and federal laws that impact association operations, the effective dates of the laws, whether the laws apply prospectively or retroactively, whether the purported retroactive application runs afoul of constitutional prohibitions on unlawful impairment of contract, and if the law or governing document takes precedence. One of the benefits of a board certified real estate lawyer as counsel is a broad knowledge of laws affecting real property and community associations, not just the chapter in the Florida Statutes that pertains to a particular type of community.
Covenant Enforcement
Social commentators make fun of community associations and often speak of the infamous dog or parking cases in which there is a perception of overregulation. Effective counsel can assist an association with the adoption of reasonable restrictions and a system likely to result in amicable resolution of enforcement matters. Neighborly work-outs without expensive litigation should be the goal. You may not want to hear it, but experienced counsel will deter an overly aggressive board from pursuit of a matter that is not in the best interest of the community. I pride myself on keeping association clients out of arbitrations and litigations, but am prepared to forcibly pursue matters in which the owner is not being reasonable and an adversarial situation is the only solution.
Contract and Lien Matters
It often comes as a surprise to those not familiar with association operations that a significant portion of time spent by counsel is reviewing and preparing construction contracts. As has been said on many occasions, community associations are akin to mini-municipalities. A key job of any municipality is to take care of its infrastructure. Experienced counsel can provide direction on whether an expert should be retained to prepare plans and specifications, and if so, review the boilerplate AIA or comparable engineering contract documents to conform to Florida law and better protect the interests of an association. Smaller jobs typically involve the preparation of an addendum to supplement the bare-bones proposal from the contractor, or a more comprehensive contract. It is critical for associations and management companies to consult with counsel to make sure the complex construction lien laws are fully complied with as those laws are unforgiving in a number of respects with significant penalties for failure to cross ‘t’s and dot ‘i’s.
Document Amendments
The preparation of many sets of governing documents for developer clients, and hundreds of amendment packages for associations, enables me to know what is wrong or missing from your governing documents, and how to fix it. My expertise in the preparation of amendments is illustrated by the fact I am the author of the chapter addressing amendments & mergers in Florida Condominium and Community Association Law, as published by the Florida Bar in 2004 and updated in 2007, 2010 & 2016.
Notices and Voting Materials for Board and Membership Meetings
The foundation for an effective meeting is to know the business to be conducted and how to go about it. Counsel can review notices, agendas, proxies, ballots and other materials and provide comment, or assist in the preparation of suitable packages. My practice is to provide documents in ‘word’ format so the notice packages can be easily modified in the future to change dates and the like, and then sent to counsel for a quick review to make sure no laws have changed or other adjustments necessary.
Borrowing and Loan Issues
More and more communities are recognizing a need for ready cash in the event of a hurricane and other casualty loss. Insurance companies rarely settle such matters without considerable delay, and under the best of circumstance there are likely to be significant costs and expenses not covered by insurance. Establishing a line of credit with a lender is often the preferred choice to address this issue. I have assisted with the negotiation and closing on many loans, and presented a lecture on Association Loans: Authority, Procedures, and Borrower Opinion Letters at an advanced condominium seminar sponsored by the Florida Bar in 2009, and again in 2017 with an emphasis on repayment options.
Collections and Foreclosures
The economic downturn over the last 8 years has resulted in numerous assessment delinquencies. Let me assist your association to put together a plan and team to effectively run the minefield of obstacles presented by upside down units, lender foreclosures, reverse mortgages, abandoned and deteriorating properties, and short sales. Courses of action appropriate to one situation do not apply to other situations. Effective counsel will avoid situations where an association is incurring legal expenses and court costs out-of-line with expected return. I participated as a panelist on the topic of “Distressed Community Associations-Collecting from Everyone- Owners, Tenants, Purchasers, Lenders- Strategies and Limits” at the Thirty-Sixth Institute on Condominium and Cluster Developments sponsored by the University of Miami School of Law in 2011.