While the term “HOA attorney” (or for that matter, “HOA lawyer”) is neither an official designation from any governing body or organization, nor a recognized area of specialty requiring additional education, testing, and licensing, some attorneys who are intimately familiar with Florida’s expansive HOA laws (see below) use that term to differentiate themselves from other, more generalized “real estate attorneys.” Put simply, an HOA attorney is a lawyer whose primary practice focus is representing individual homeowners and/or HOAs (although I include the word “and” here, it’s unlikely that an HOA attorney will represent both homeowners and HOAs because of the conflicts of interest that would arise). Typically, therefore, you’ll likely see HOA attorneys represent either homeowners or HOAs, but not both. For example, Kushner Carlson, PC represents homeowners in all manner of disputes involving HOAs. But, except in very rare circumstances, it does not represent HOAs.
Now, as I said above, describing oneself as an “HOA attorney” doesn’t require any special licensing or education. That means that any lawyer licensed to practice law in Florida can call him/herself an “HOA attorney.” So, because all lawyers can adopt the term for themselves, homeowners who are actually in need of an HOA attorney have to have a way of separating the wheat from the chaff. They have to be able to differentiate between true HOA attorneys—those with substantial knowledge and experience of the laws governing HOAs in Florida, as well as understanding of the kind of disputes that occur most frequently—and the more general practitioners who have merely adopted that moniker, but whom otherwise lack the necessary experience and expertise.
Let’s start with the governing law.
Governing Law/Governing HOAs
HOAs in Florida are largely governed by three separate sets of laws: (i) the Homeowners’ Association Act; (ii) the Condominium Act; and (iii) the Cooperative Act. Each of those “Acts” lays out the ground rules regarding how HOAs may be formed, governed, and dissolved. In other words, all HOAs in Florida, depending upon the “type” of housing found in a particular community (e.g., single family home, condominium, or a co-op) must abide by the particular Act that governs that type of housing unit (as well as other applicable Florida laws, of course).
Each HOA in Florida is further governed by its own set of “governing documents,” the most important of which is a document known as the Declaration of Covenants, or in the case of a condominium association, the Declaration of Condominium. For our purposes, however, we’ll call that document by its most well-known name—the “CC&Rs” (which stands for Covenants, Conditions, and Restrictions). An HOA’s CC&Rs describes not only the rights, duties, and obligations that each member owes to the HOA, and vice versa, but also the rights, duties, and obligations that the members owe to each other. And, therefore, an HOA’s CC&Rs are intended to address a wide scope of governance type issues ranging from the maintenance of the common areas and property use restrictions (e.g., setbacks, view rights, neighborhood “character,” architectural guidelines, etc.), to enforcement powers, the raising and spending of revenues (e.g., regular and special assessments), and dispute resolution. HOAs have other governing documents (e.g., articles, bylaws, rules & regulations, etc.), but it’s not necessary for purposes of this article to go into too much detail about those documents.
In addition, like all corporations that you’re probably familiar with, an HOA is governed by a board of directors elected by its members. And just like other corporations, the board of directors of an HOA is responsible for managing its affairs and conducting the HOA’s business. To accomplish the task of managing and conducting the affairs and business of an HOA, its board of directors typically enjoys many of the same powers that any corporation’s board of directors enjoys, such as:
- creating committees and appointing people to sit on those committees;
- calling and running membership meetings;
- setting elections and selecting election inspectors;
- adopting and enforcing architectural guidelines and rules;
- filing and defending against lawsuits;
- entering into contracts (with, for example, vendors, contractors, management companies, etc.);
- hiring employees (e.g., handymen, landscapers, etc.);
- hiring accountants, attorneys, architects, and other professionals to guide the board;
- levying and collecting assessments (e.g., regular and special);
- paying HOA expenses;
- maintaining, improving, and/or repairing the HOA’s common areas;
- disbursing reserves; and
- adopting and managing budgets.
Because an HOA’s board of directors is tasked with so many important obligations, the law also imposes on the board, as well as on each individual board member (also called a director), a heightened duty of care and loyalty, often referred to as a “fiduciary duty.” This fiduciary duty requires an HOA’s board of directors to act reasonably and in good faith in carrying out the affairs of the association. An HOA’s board of directors must also treat all members of the HOAs fairly (i.e., an HOA can’t enforce certain rules against certain HOA members, but not others), without showing favoritism to certain members (e.g., to directors sitting on the board, or to families and friends).
The HOA Attorney
Given the sheer volume of specific laws aimed at HOA governance/disputes in Florida, it stands to reason that a “real” HOA attorney must not only be intimately familiar with the substance, requirements, and rights contained in the Acts, but a practiced HOA attorney must also have expertise in how Florida courts have interpreted those Acts. In addition, an experienced HOA attorney will have a long history of reviewing CC&Rs, a keen understanding of which fact patterns most commonly result in a good outcome for their clients, and be experienced guiding homeowners through alternative dispute resolution (most commonly in the HOA context, mediation).
Needless to say, less knowledgeable attorneys who hold themselves out as “HOA attorneys” will very likely find themselves grossly outmatched and outgunned.