Are You Seeking the Right Condo/HOA Experts? And Is This Board Member Too Dismissive?

June 2025

Tags: Business Judgment Rule, Landscaping

This article is part of an ongoing series in which we'll take your questions from the HOAleader.com discussion forum and get you the answers you need from experts who specialize in association management. If you have a question you need answered, post it on the message board.

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. They ask whether a landscaper is a qualified expert on landscaping chemicals. They also ask whether a board member's casual comments at a meeting show the board isn't meeting its duty of care.

Here are the basics of our reader's question: The community is a 55+ community, and the issue is the use of synthetic pesticides and herbicides. Last year, the board received emails about the toxicity of these products along with the idea that they had no place in a 55+ community.

Rather than review the issue from an intellectual perspective, they went to the landscaper to confirm the products were safe, the view being that the landscaper is the expert in these areas. Since then, there's a new board. It's spraying season again, and the issue has come up again.

Then a study came down connecting the particular chemical as being genotoxic to humans. The board was made aware of this study. At a meeting, a board member purporting to be a chemical 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.”

Our reader says: Don't get confused this is about the pesticide issue. The topic is bigger than that. It's about a board out of their element shutting down the conversation.

Those last italics were from our reader. So here, we ask our experts about those two issues: Who's a proper expert for a board to consult. And do this board member's comments show their board isn't taking its duty to seek expert opinions seriously?

Is a Landscaper a Chemical Expert?

“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.”

That was the exact argument in a community represented by Matt D. Ober, partner at Richardson Harman Ober, a Pasadena, Calif., law firm with a significant community association practice. “I had a similar issue with an association that was going to cut down a tree,” he says. “Some owners got upset, so the board asked their landscape vendor, who handles tree issues, ‘Is this tree sound, or does it have to be removed?'

“Then those homeowners said, ‘No, you have to go get a professional arborist,'” recalls Ober. “The board did that, and the arborist confirmed the tree had to be removed.”

On the other hand, this landscaper may be the right expert to consult because of requirements for handling chemicals in some states. “In California, it's OK to ask a landscape contractor for general maintenance-related issues,” notes Ober. “And if your contractor is qualified and certified in pest control, that landscape company should be providing written disclosure to owners, through the board, on what chemicals are being used, their toxicity, and so on.

“You have to disclose, ‘This is what we're using,'” he says. “Then if there's a concern and it seems legitimate, I'd say go get an independent consultant who's not your contractor.”

Sheir agrees that the landscaper may have the appropriate expertise to advise the board. “I had this situation happen once,” she recalls. “At least in Florida, I believe certain landscaping companies, if they're applying certain chemicals, need a license and documentation on how they train on and handle the application of these chemicals.

“When I had to deal with a question like this where someone was challenging the qualifications of the landscaper to apply chemicals, we requested that the landscaper provide us with the documentation required by the state,” says Sheir. “If they have these licenses, I think it would be appropriate to rely on the advice of the landscaper. If it's Joe Blow with a lawnmower, no.”

Scott D. Weiss, CCAL, a partner and the Tennessee office chair at Kaman & Cusimano in Nashville, Tenn., who represents more than 800 condos/HOA communities throughout the state, also says the professional landscaper may be the right choice.

“Can that landscaping company be considered an expert on that toxic stuff?” he asks. “Maybe not in a court of law, but if this is something they use in the regular and ordinary course of their business and it's used by other companies in the geographic area for the same purpose, I think that landscaper can speak to that. That's sufficient for a board to rely on.

“I also think there's an argument that the board would have a duty to do a little bit of due diligence and maybe not take their vendor's word on it,” he adds. “But I also don't think they have to go terribly far with that.

“Most states follow the general business judgment rule, though some states may be a little bit different,” says Weiss. “In Tennessee it's statutory. The person doesn't have to be an actual expert. It can be a special committee the board has created that they can reasonably rely on. The committee can investigate, then report back and say, ‘These are our findings.' In those cases, the board has no reason to believe that's not the way it is, so they can still rely on that process.”

What if you have an expert on your board? Even in those cases, Sheir recommends a second opinion. “I run into situations where boards are penny wise and pound foolish,” she explains. “Even though they may have very qualified people on the board—maybe a board member has construction experience and it's a construction project—who want to volunteer their services, I see that as a red flag.

“First, those board members are exposing themselves to additional liability,” says Sheir. “Also, they may have a lot of knowledge and insights they can offer, but it's wiser to go to a third party. It's great to have that on the board. But it's even better when you have that person work with an outside third party to provide the necessary advice.”

The Board Member's Response Doesn't Help

Our experts generally agree that the board member's comments in our reader's situation may not be the best way to handle questions from owners—with one exception.

“That's a little bit of a flippant type of comment to make,” says Weiss. “For these types of situations, I always encourage the board to invite the contractor to a meeting to have a Q&A with members.

“For instance, today insurance is a big deal,” he explains. “I can answer a lot of questions, but insurance isn't what I do. So if a question arose regarding insurance, I'd suggest that. That way, the information is coming from the people actually doing the work. The board doesn't need to be making a statement like the one in the reader's situation. They probably don't know this area of expertise, and it's not their place, either.”

Aronson agrees. “That board member probably isn't an expert, so he doesn't know,” she says. “I don't know what happened to humanity; it feels like it's on the back burner these days. Just as we don't want unit owners being rude and dismissive to board members, I wouldn't want a board member to do that, either. I always tell board members that I don't really care how low others go, we can't do that.”

The solution to this problem may also be simple. “Maybe other treatments don't cost much more,” says Aronson. “I own a home on Cape Cod, and I have a landscaper. If I said to him, ‘I don't want to use chemicals,' he'd provide organic alternatives for me to consider. This board could do that. Get pricing for other treatments, then show the owners the difference in price and ask for their input on whether it's worth it.”

There's another reason to be more cautious in dealing with owners: liability. “He's a board member, probably not a pesticide expert,” says Ober. “If an owner says, ‘I'm concerned about the toxicity of blah blah' and it's a legit complaint and you don't have the basis to say, ‘We've confirmed it's safe,' I think you have an obligation to look into that.

“If someone who's complaining gets sick, the first people they're going to go after are the association and the board of directors,” he says. “Anytime a board member dismisses someone like that with an offhanded comment, it doesn't go well. The better response is, ‘We've heard your concern, and we'll look into it.'”

Sheir, however, isn't quick to judge this board member. “I've seen really, really bad behavior on the part of unit owners,” she says. “It's hard for someone not to react and to make these types of comments.

“The more appropriate way to have responded would have been to get some sort of written documentation from your vendor that this is safe for this purpose,” says Sheir. “That's hindsight being 20-20. But after a while, some board members do become a little less politically correct in their responses. So I don't chastise that board member for being less than eloquent. There's probably more to this story than we're hearing.”

Reposted from HOALeader.com

The information contained, and the opinions expressed, in this article are not intended to be construed as investment advice. Housz, Inc. does not guarantee or warrant the accuracy or completeness of the information or opinions contained herein. Nothing herein should be construed as investment advice. You should always conduct your own research and due diligence and obtain professional advice before making any investment decision. Housz, Inc. will not be liable for any loss or damage caused by your reliance on the information or opinions contained herein.

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