A Miami judge is being
asked to put a quick end to a bizarre dispute in which two
luxury Key Biscayne condominium associations are suing each
other.
The question? Who pays maintenance fees
when an individual property owner falls behind on payments.
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The Emerald Bay condominium, one of four buildings at the posh Key Colony complex on Key Biscayne |
“This could be game over,” he said. “If
the court grants Plaintiff’s motion for a default judgment
and subsequently enters the default judgment, then Plaintiff
may seek to enforce the judgment by using the full range of
post-judgment provisional remedies under Florida law,
including attachment, garnishment [and] seizure,” he said.
Craig Minko, EmeraldBay’s attorney, did not return messages
seeking comment. Last week, however, he did file a response
denying all of the revised claims.
At the heart of the case is EmeraldBay’s decision to stop
paying some maintenance fees to the HOA in cases where unit
owners are themselves delinquent. The fees from the four
buildings pay for amenities at the sprawling 42-acre
complex, including tennis courts, two pools, saunas, and a
private Atlantic Ocean beach.
For decades, all of the Key Colony buildings have paid the
full HOA dues on behalf of their residents, regardless of
whether individual units were current with their
assessments.
But EmeraldBay says it is simply exercising its rights to
not be left holding the bag for its own members who choose
not to pay their bills to the HOA. Its decision “should not
be second-guessed,” court papers say.
“Over these many years, the EmeraldBay incurred substantial
losses by virtue of the EmeraldBay essentially fronting
total sum owed,” Minko wrote in a response filed Wednesday,
after the court-ordered deadline.
If EmeraldBay wins its case, the irony is that all Key
Colony residents — including those living at EmeraldBay —
might end up paying more for new collection efforts on
delinquent units.
Another motive: a condo election issue
The case, then, might not seem to make sense. But the master
association’s amended complaint laid out a theory: it’s all
about Michael Polakov, an EmeraldBay unit owner who won a
seat on the HOA’s governing board.
“[T]he true reason for Emeraldbay breaching its agreement
with Key Colony was related to an election issue,” wrote
Jennifer James, an HOA attorney.
Court papers point to an April, 2022 email in which Jorge
Cavalier, then-president of EmeraldBay, said that Polakov
didn’t deserve a seat on the board because he was in
arrears.
“The inequity of a delinquent unit owner being technically
eligible for candidacy and/or being able to serve on the
Master Board is totally unacceptable to EmeraldBay and must
no longer be tolerated,” Cavalier wrote.
The letter outlines discussions on a plan to change the
HOA’s election eligibility rules, but those changes were
never made, although HOA officials say a unit owner vote is
expected later this year.
Last year, EmeraldBay filed a foreclosure case against
Polakov, but court records show the case was settled.
Polakov, reached Monday, said he is now current with his
fees, saying the dispute had nothing to do with the HOA
case. “I withheld fees due to the total continued
uninhabitability of two units which EmeraldBay’s board
refused to take care of the problems for, stemming from the
still never completed 40 year recertification” of the
building.
And there’s another odd wrinkle, which given the complex’s
history, appears unlikely to be the final one: Polakov is
now back on the HOA board of directors, representing
EmeraldBay.
There were two EmeraldBay seats – but Polakov was the only
one who applied, and was deemed elected.