Much like corporations and charity organizations, condos, co-ops and HOAs across the nation are helmed by groups of residents who volunteer to serve their communities, and who are elected to their post by their neighbors. This is of course the case in Florida, where multitudes of retirees and early retirees choose to resettle. These folks are healthy and active, mentally and physically, and it is not surprising to find talented individuals volunteering for board positions in their new communities.
While a volunteer may have retired from a successful, demanding career, there are many situations in which an HOA's board of directors may need an expert’s advice in law, finance, or corporate administration. Florida state laws in general, and association laws in particular vary from other states as well. This overall lack of specific experience or knowledge may lead a perfectly well-meaning board to make a decision with serious legal ramifications, putting the board at risk for lawsuits both within and outside the community.
Avoiding Legal Blunders
What is the best way for a board to avoid a legal foul when deciding on a course of action for the community? “Use your professional resources,” says Ryan D. Poliakoff, senior counsel in the Community Associations practice group of Sachs Sax Caplan in Boca Raton. As senior counsel, Poliakoff most often finds that boards fear using the association’s attorney services for a variety of reasons. Besides budget concerns, a board may not realize when it's time to call for professional consultation. Poliakoff points out the importance of calling upon the right resource for the need at hand, whether it be a property manager, bookkeeper or an attorney. “An elected board creates and defines policy but these professionals have specific knowledge on liability and risk for complex issues,” he says.
Lourdes Ferrer Lieberman, an attorney and founder of Ferrer Law Group in Weston, works with all aspects of community association law, and sees the same reluctance for boards to seek expert advice. “Many times a board doesn’t know what they don’t know—but as they say, ignorance of the law is no excuse,” she says.
Thomas R. Slaten Jr., managing shareholder of the law firm of Larsen & Associates, P.L. in Orlando, agrees with Poliakoff and Ferrer. “All community association boards have good intentions, but it is not always easy for a board to carry out their well-meaning plans. Forgetting to follow procedures buried in the association’s governing documents or state statutes are the most common legal mistakes that can derail a board.”