HOAleader.com - Tip of the Week - June 20, 2025
Published: Fri, 06/20/25
Updated: Wed, 06/25/25
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HOAleader.com - Tip of the Week - June 20, 2025
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In this week's tip, we answer a reader's implied question: Is my board taking a shortcut when it claims it consulted an expert on chemicals when all it did was ask the landscaper?
It's an important question because we all know that when you seek an expert's opinion, it protects your condo/HOA board from future claims of violations of the business judgment rule.
“At least here in Florida, one way to meet your fiduciary responsibility is to rely on the advice of experts,” explains Carolina Sznajderman Sheir, a partner at Eisinger Law in Hollywood, Fla., which represents 600-700 associations throughout the state, who is board certified in condo and planned development law by the Florida Bar. “We have a statute that says there's a presumption that you're reasonably relying on experts if you do certain things, such as consult with a certified expert. So we overwhelmingly encourage associations to engage professionals to guide them in certain processes.”
But who's an expert on what?
We ask in response to a question from an HOAleader.com reader in a community where there's a dispute over whether landscaping chemicals are safe. After hearing concerns, the board asked the landscaper, who confirmed they were safe. It didn't help that during the debate over the chemicals, a board member who was purportedly an expert said, “To get sick from it, you'd have to sprinkle it on your cereal and eat it. And I'm not trying to be funny.” And, “Liver cancer, anything driving out the door will give you liver cancer.”
“I hear people discuss landscaping chemicals all the time, and it's a fair point,” says Janet Oulousian Aronson, a partner at Marcus Errico Emmer & Brooks in Braintree, Mass., who is licensed in that state, in addition to Rhode Island and New Hampshire. “It may not make you feel great that your landscaper is using them, but these chemicals aren't illegal. They're still sold, and they're still being used.”
Does that mean this board's consultation of their own landscaper fulfills their duty to seek advice from an expert? In general, our experts say there are factors in support and against this board's action.
“There are different kinds of experts they could consult, such as an arborist, if they want the advice from a third party,” notes Aronson. “I do think boards should be sensitive to the community and investigate with someone professional. That may not be the landscaper because this landscaper has a vested interest in the situation.”
On the other hand, this landscaper may be the right expert to consult because of requirements for handling chemicals in some states.
Find out why our new article: https://www.hoaleader.com/members/5120.cfm
Best regards,
Matt Humphrey
President
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