In reference to some new roles of community association managers authorized by House Bill 7037, which became effective on July 1, 2014, the website, flcamtest.com directs some wise words to Florida community association managers: “As a practical tip, just because you are a CAM and CAN do those task [sic], does not mean you SHOULD do those tasks.”
Community associations, including condominium, residential homeowners’, and cooperative associations, are required to provide written notice to owners who are delinquent in the payment of association assessments prior to filing a lien against the delinquent owner’s property, and prior to foreclosing on the lien. While the statutes previously required certain information to be included in such notices, they now include actual forms that must be used for the notices, as well as a form for the release of the liens.
New Authorized Tasks for CAMS
The new law authorizes community association managers (CAMs) to determine the number of days required for statutory notices, determine amounts due to the association, collect amounts due to the association before the filing of a civil action, complete forms related to the management of a community association that have been created by statute or by a state agency, and draft pre-arbitration demands, among other more standard tasks. Since the statutes now have created forms for pre-lien and pre-foreclosure notices, CAMs are authorized to complete and send these notices.
It’s Not Just a Form
While perhaps filling out a form provided by the statute may seem pretty simple, there can actually be many variables that go into the calculation of the total amounts which can be claimed by an association. It should be verified that any claimed interest and late fees were properly calculated and provided for in the governing documents, and the effect of any foreclosures on the property on the amounts that are claimed due. Prior to filing a lien, an association should have its legal counsel verify that the calculations were properly made. The law in this area is constantly changing and association managers are not expected or equipped to keep up with current case law.
There are also requirements in the statutes that the pre-lien notices are sent by certified mail, return receipt requested, to the owner at their last address on record with the association and at the subject unit or parcel, if that is not the last address of the owner. If the notice is not sent properly, it can be deemed invalid and, thus, could possibly invalidate the entire lien, costing the association time and further delaying the recoupment of funds.
Potential Risks to CAMs and Associations
The new law also allows the CAM to contract with the association to indemnify the CAM for damages to the association resulting from the CAM’s ordinary negligence. While this language may put the association at risk by protecting the CAM should they make a mistake in carrying out their new roles, it also may not fully protect the association manager should they make a mistake that damages the association. Having the association counsel continue to prepare pre-lien and pre-foreclosure notices will further remove the CAM from that potential risk. The attorney handling the foreclosure suit may also prefer that the pre-suit notices are prepared by the attorney in order to prevent having the suit thrown out due to insufficient notice.
Debt Collection Protections
Finally, the association managers may not be required to comply with the Fair Debt Collection Practices Act (FDCPA) when sending collection demands. The purpose of the FDCPA is to protect the individual debtors from improper and harassing collections practices by third party debt-collectors by requiring certain disclosures and opportunities to dispute the claimed debt. The preparation of the pre-suit collections notices by association managers removes this protection.
With regard to the preparation of pre-suit arbitration demands involving association disputes, an association manager puts itself and its association client at risk of jeopardizing or delaying an association’s case if the claims are not properly stated in the initial pre-arbitration notice. Very likely an association attorney will take over the arbitration case after the demand is sent, and the attorney may need the demand to be resent if the claim is not made in the proper and legally sufficient manner.
Think Before Acting
Prior to this new legislation, association attorneys were increasingly concerned that some CAM’s who were performing some of these tasks were venturing into the “unauthorized practice of law.” Now that these tasks are “authorized” by the legislature, a CAM should carefully consider whether he or she feels capable of properly performing them, both for the protection of the CAM and the association.
Imagine Courtesy of Eugene Zemlyanskiy on Flickr