A Florida condominium or homeowners association board should call its attorney before it acts, not after: before signing a significant contract, adopting a rule or amendment, levying a special assessment, imposing a fine, or answering a letter from another lawyer or a state agency. It should also call the day any document arrives that starts a legal clock, such as a construction defect report, an insurance denial, a recall agreement, an election challenge, a records request from counsel or a fair housing complaint. And it can save money by not calling for the routine matters that a well-built set of policies already answers. Here is how to tell the difference.
Why timing matters more than topic
Boards rarely get into trouble because they lacked a lawyer; they get into trouble because the lawyer was called after the contract was signed, the fine was imposed, or the deadline passed. Reviewing a roofing contract before signature costs a few hundred dollars; unwinding it costs tens of thousands. Structuring a special assessment notice correctly is an hour of work; defending a defective one is a lawsuit. The single most valuable habit a board can adopt is to ask, before any decision with money or an owner's rights attached, "should counsel see this first?"
Call before you act
- Contracts. Any agreement above the board's routine spending level, any multi-year or automatically renewing agreement, every management agreement, and every construction, restoration, roofing, elevator or security contract. Vendor forms shift risk to the association by default; reviewed forms shift it back. See our Contract Management page.
- Rules and amendments. Rules must be within the board's authority under the documents and adopted with the notice the statute requires; amendments to the declaration must follow the vote and recording requirements and may be limited by statutes such as the rental-restriction rules. A rule the board cannot enforce is worse than no rule.
- Special assessments and borrowing. Authority, notice content, purpose limits and owner votes are all traps; our special assessment article explains why.
- Fines and suspensions. The first violation notice under a new policy, any fine that may exceed the statutory limits, any suspension, and any case where selective enforcement is a plausible defense.
- Elections and meetings. The annual meeting and election package before it goes out; any contested election; any recall.
- Budgets and reserves. The reserve treatment, the notice package and any owner-vote items before the budget meeting.
- Owner requests that invoke a legal right. Reasonable accommodation and assistance animal requests, requests to install solar panels, flags, hurricane protection or EV chargers, and architectural applications the committee wants to deny.
- Communications with agencies and other lawyers. Any letter from the Division, a county code enforcement office, HUD or the Florida Commission on Human Relations, a lender, or an owner's attorney.
Call the day it arrives: events that start clocks
Some documents start deadlines that the board cannot extend:
| Event | Why it is urgent |
|---|---|
| Engineer's report identifying construction defects | Chapter 558 presuit notice and the statute of limitations and repose run from dates the board may not control |
| Insurance denial, partial denial or low estimate | Notice, supplemental claim, appraisal and presuit deadlines under Chapter 627 |
| Recall written agreement or petition for a recall meeting | The board has five full business days to meet and decide |
| Election challenge or notice of arbitration petition | Short response deadlines; records must be preserved |
| Records request from an owner's attorney, or any request the manager cannot fulfill within 10 days | Presumption of willful violation; statutory damages |
| Fair housing complaint from HUD or the Commission | Investigation response deadlines; D&O notice |
| Lawsuit, subpoena, lien from a contractor, or bankruptcy notice | Response deadlines; automatic stay; lien-law deadlines |
| Notice from the Division of a complaint or investigation | Response deadline; potential penalties |
| Hurricane or other declared emergency | Emergency-powers decisions must be documented as they are made |
| Developer turnover | Turnover audit, warranty and defect claims have limitations periods |
The right response to every item on this table is to forward it to counsel the day it is received, with a note of the date and how it arrived.
What usually does not need a call
If the board built its policies with counsel, the manager can handle most days without one:
- Routine violation notices and hearings under an adopted fining policy and standard forms
- Records requests handled under the written inspection procedure, where nothing on the protected list is involved
- Vendor renewals on previously reviewed contract forms without changed terms
- Owner questions about the rules that the rules themselves answer
- Routine collection through the statutory notice sequence, once the collection policy is in place (the attorney handles the lien stage as a matter of course)
- Meeting notices and agendas prepared from approved templates
The pattern is deliberate: spend legal dollars once on the policy, the form and the procedure, and then let the manager run it. Boards that call counsel for every violation letter are usually boards that never adopted a fining policy.
Using counsel efficiently
- One point of contact. The president or the manager communicates with counsel; other directors route questions through them. Five directors emailing five questions produces five bills and inconsistent answers.
- Write the question and attach the documents. A one-paragraph email with the declaration section, the contract, and the owner's letter attached gets a faster and cheaper answer than a phone call to reconstruct the facts.
- Batch non-urgent items for a monthly call or the pre-meeting review.
- Consider a general counsel arrangement. Ask whether a flat-fee or retainer arrangement is available for routine advice; a predictable cost encourages boards to ask early rather than late.
- Use closed sessions correctly. Board meetings may be closed to owners only for meetings with counsel regarding proposed or pending litigation (and personnel matters); the statute does not permit closed sessions for general legal advice. Counsel's written advice, however, is privileged and exempt from owner records inspection.
- Remember whom the lawyer represents. The association's attorney represents the association, acting through its board, not individual directors or owners. Directors should not seek personal advice from association counsel, and counsel cannot advise owners about their disputes with the association.
Budgeting for legal services
A realistic legal line in the budget reflects the community's size and age, its litigation history, whether a major project is planned, and the number of contracts up for renewal. Boards that budget nothing for legal advice tend to spend far more on legal defense. The reserve for legal expenses is not a statutory reserve, but a contingency line for unanticipated litigation is prudent in any community with more than a few dozen units.
For community association managers: see Manager or Lawyer? in the Manager Resource Center.
Frequently Asked Questions About Using Association Counsel
Do we need to run every vendor contract past the attorney?
No. Have counsel review the association's standard forms and the first contract with each significant vendor; routine renewals on unchanged forms can proceed without review. Any construction, restoration, roofing, management or multi-year agreement should be reviewed every time.
Can the board meet privately with the attorney?
Board meetings may be closed to owners only to discuss proposed or pending litigation with counsel, and for personnel matters. General legal advice should be given at an open meeting or in writing; written advice is privileged and exempt from owner inspection.
An owner is threatening to sue. Should we call?
Yes, before responding. A threat of litigation may trigger a litigation hold on records and a notice to the D&O carrier, and the board's first written response often frames the case.
Can directors ask the association's attorney about their personal liability?
The association's attorney represents the association, not the directors individually. Counsel can explain how the business judgment rule and D&O coverage protect directors acting in good faith, but a director facing a personal claim should consult his or her own attorney or the D&O carrier.
The manager says she can handle a records request. Do we need the attorney?
Usually not, if the association has a written inspection procedure and nothing on the protected list is involved. Call when the request comes from an attorney, seeks privileged or personal information, or cannot be met within ten days.
How much should we budget for legal fees?
It depends on size, age, projects and history, but a board that budgets nothing is planning to make its first call after the problem has grown. Ask counsel for a fee estimate for routine general counsel work and a separate contingency for contested matters.
Contact Hamilton Mikes
Hamilton Mikes serves as general counsel to condominium, cooperative, homeowners association, club and marina boards throughout Southwest Florida. Call 239-594-7227 or visit our Corporate Governance page.
Statutes and authorities referenced
- § 718.111(1)(a), (2) and § 720.303(1), Fla. Stat. (fiduciary duty; association powers)
- § 718.111(12)(c)5.a. and § 720.303(5)(g)1., Fla. Stat. (attorney-client privileged records)
- § 718.112(2)(c)3, Fla. Stat. (closed board meetings with counsel regarding litigation)
- § 718.1255 and § 720.311, Fla. Stat. (mandatory presuit dispute resolution)
- § 558.004 and § 95.11(3)(b), Fla. Stat. (construction defect notice and limitations)
- § 627.70132, Fla. Stat. (insurance claim notice deadlines)