By Michael J Posner, Esq.
Realtors and Community Association Managers provide valuable real estate services to sellers and buyers of real estate, as well as managing homeowners and condominium associations respectively. However, in providing their respective services, they frequently have issues that have substantial legal ramifications and, in providing their advice and opinions, run the risk of being accused of the unlicensed practice of law. Knowing what is permitted and what requires specific use of a licensed attorney is important for both realtors and Community Association Managers.
For realtors there is a substantial difference between drafting contracts and drafting leases. The Florida Supreme Court held in 1950 in the case of Keyes Co. v. Dade County Bar Association that the drafting of the real estate contract by a licensed realtor who was a party to the transaction did not constitute the unlicensed practice of law. In 1992 the Supreme Court was asked if the drafting of a lease constituted the unlicensed practice of law and while the Supreme Court declined to specifically state so, they did adopt a formal lease which appears to restrict drafting of leases by realtors without legal counsel except by utilizing the Florida Supreme Court approved forms.
Aside from the right to draft contracts, realtors can cross the line when they modify preapproved forms adopted by the Florida Realtors Association or the Florida Bar. In addition, the drafting of a substantive addendum to form contracts can also lead to a claim of unlicensed practice of law. Realtors should err on the side of caution and avoid making any material, substantive changes to the form contract or an addendum unless aided by a licensed attorney. Further, other than filling in the blanks on the Florida Supreme Court approved lease forms, realtors should not make any changes to the approved lease or utilize any other form lease unless done by a licensed attorney. Continue reading
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