‘Inherent conflict’: Inside attorneys, property managers’ roles at South Florida condo and homeowners associations
Though paid from residents’ dues, they sometimes act on behalf of board members, critics say

Article Courtesy of  The Real Deal

By Lidia Dinkova

Published February 3, 2024


At El Conquistador condo complex in Kendale Lakes, an attorney for the association sent three unit owners letters accusing them of defaming the board and harassing staff.

Farther north, at the Star Lakes condo near North Miami Beach, when the association filed multiple foreclosures against residents over unpaid assessments, it was also the lawyer who did the legwork.

And in Miami Gardens, at the New World Condominium Apartments, a property manager allegedly failed to vet an unlicensed roofing contractor, leading to a fire, a lawsuit says.

Across South Florida, attorneys and property managers play an unusual role at communities governed by associations. Lawyers go after residents who are behind on special assessments and maintenance fees. Property managers send unit owners violation notices over everything from improperly placed trash cans to cluttered balconies.

Though hired by boards of directors, attorneys and property managers get paid via residents’ dues. The job description says they represent communities as a whole and work for their greater good.

The problem: Residents feel some attorneys and managers merely appear to work in the name of associations but cross the line into serving individual board members’ interests.

At some communities, attorneys and managers turn a blind eye to boards’ misdeeds. At others, it’s worse: They act as boards’ henchmen, silencing scrutiny through lawsuits and threatening letters, according to court records and interviews with experts and residents at multiple properties.

“Do sometimes community association managers and attorneys act in the interest of individual directors? Absolutely,” said attorney Eric Glazer, a condo law expert. “The management company and the attorneys are afraid that they are going to get fired should they not completely have the backs of the board members, even if they are engaging in wrongdoing.”

The extent to which they are aiding corrupt boards is unclear.

Attorneys and managers say all their filings are legal and warranted. Amid skyrocketing insurance costs and strict deadlines to repair and recertify properties, homeowners’ incessant complaints against boards scare off underwriters and lenders needed to finance renovations, attorneys and managers argue.

Residents counter that attorneys’ and managers’ work has become a tool for boards to quash opposition. At one condo building, a former board president filed a complaint against a resident who suspected board misspending, according to a lawsuit. The filing looked like it came from the president individually. Actually, the association attorney penned it, the suit says.

The professionals’ role at associations took center stage at the Hammocks, one of Florida’s biggest homeowners’ associations. In the wake of the 2022 criminal fraud charges against four former board members, civil suits took aim at ex-HOA attorneys.

At the very least, the lawyers unintentionally allowed the alleged scheme, and in the worst case, attorneys knowingly played a role in what happened, the lawsuits say.

Hammocks resident Ana Danton thinks it’s the latter.

“The lawyers are the ones that helped this corruption,” she said. “And they paid those lawyers with our money.”

Danton opposed the former board and sued the HOA.

Fees on fees

State law has no oversight on association attorneys, who are governed by the Florida Bar’s Division of Lawyer Regulation. If attorneys know about board misdeeds, they may be precluded from reporting issues to authorities due to attorney-client privileges, experts said.

Laws require that property managers take licensing exams, and hold them liable for accepting kickbacks and commingling funds. Statutes limit the state’s jurisdiction over what types of gripes it can investigate.

Lawyers’ and managers’ roles also are outlined in association declarations and retainer agreements. Many of the contracts provide for a flat fee, as well as extra charges for certain types of work.

Therein lies the issue.

“There is an inherent conflict,” said attorney William Sklar, a condo and HOA law expert. “What happens is obviously the more services rendered, the more fees involved.”

“That doesn’t make what the attorney [or manager] is doing wrong if the unit owner is violating” rules, he added.

“Do sometimes community association managers and attorneys act in the interest of individual directors? Absolutely.”
Attorney Eric Glazer

Communities also hire additional attorneys to defend them in litigation or enforce collections. At the Star Lakes condo, attorney Bradley Friedman charged at least $25,000 for liens and foreclosures over unpaid assessments from late 2021 to late last year, according to records. Although nothing was improper about the filings and charges, residents at the complex were angry that former board members imposed $3 million in assessments yet failed to make repairs.

“I take my ethical duties seriously, and obviously as an association attorney you speak with the board of directors, but your duty is to the association, not an individual,” Friedman said, adding that he was speaking generally and not specifically about Star Lakes.

In association disputes, the loser is responsible for attorney fees. Even if homeowners win a case, they could be on the hook if associations hike assessments, said attorney James Bishop, who represents unit owners in suits with associations.

“The statute itself creates a lot of incentives for attorneys and associations to work together against residents,” he said.

The Hammocks is likely the first major case where attorneys have been accused of wrongdoing.

David Gersten, the court-appointed receiver overseeing Hammocks affairs since the arrests, filed four suits against attorneys. Two settled, and two are fighting back.

In 2020, the former Hammocks board retained Rasco Klock Perez & Nieto and Hilton Napoleon II to help fight the Miami-Dade Police Department, which was then poking into the HOA.

The attorneys sued detectives looking into ex-board President Marglli Gallego, and aimed to “silence dissent” by suing residents who suspected her of wrongdoing, Gersten’s suit says. Association lawyers also waged court battles when investigators subpoenaed records. The association paid $1.5 million, combined, to Rasco Klock and Napoleon, according to the complaint.

Todd Boyd, Rasco Klock’s attorney in the case, said he has asked Gersten for evidence to support the allegations but that so far none has been provided.

“I haven’t found anything that would create liability on the part of Rasco Klock,” Boyd said.

Napoleon said that everything he did was justified. The receiver hasn’t “identified one document that I was supposed to go and see to show that they [the board] were actually stealing money,” Napoleon said.

Furthermore, investigators’ records requests were illegally burdensome and broad, he argues. The Hammocks initially provided a batch of 12,500 records, which took nearly 1,700 hours to compile, he said. Because investigators hadn’t paid for these records, the Hammocks board declined to provide another requested batch of 11,000 records.

“The board made every decision. I don’t have the documents, and I don’t have the authority to walk into an organization and tell them to give up all of those records,” Napoleon said.

Part of the issue is that the Hammocks, a 6,800-acre community with 44 sub-associations, kept records on paper, making the search for the requested documents long and costly, he said.

“It’s easy for people to just throw out these blanket allegations and say, ‘Oh, the lawyer filed these frivolous lawsuits,’” he said. “If my lawsuits were so frivolous, how come a judge never sanctioned me?”

Defamation is the name of the game

A common accusation against residents is that they have defamed the board of directors.

At associations, defamation suits are legal if a homeowner said the board committed fraud.

In some cases, courts have ruled that the state’s anti-Strategic Lawsuit Against Public Participation (SLAPP) provision, which protects residents who speak out against public figures such as politicians from being sued, does not extend to associations, a South Florida Sun Sentinel investigation found. A bill before the legislature this year aims to extend the anti-SLAPP rule to associations.

At El Conquistador, association attorney John Paul Arcia sent three unit owners cease-and-desist letters claiming they engaged in a “campaign to humiliate, intimidate, discredit and harass board members.”

“Your false allegations were intended by YOU to subject the board to hatred, ridicule [and] contempt,” Arcia wrote.

The homeowners deny the allegations, saying their speech wasn’t defamatory. Two unit owners pointed out that the letters came after they filed state complaints about El Conquistador. The association also sued one of the unit owners, Piedad Vergara, for defamation. Arcia filed the complaint.

“The statute itself creates a lot of incentives for attorneys and associations to work together against residents.”
Attorney James Bishop

Glazer, the condo law expert, said he has turned down board members’ requests to file defamation suits against unit owners at associations he represents as general counsel.

“It just comes down to ethics,” he said. “I think an association attorney does have an inherent conflict, as an association attorney needs to be investigating whether those allegations are true.”

Arcia said his filings weren’t meant to silence dissent and were necessary. If residents made claims against the board “with some substance,” then he would investigate. “But when they are over and over again and so vague, then there’s really nothing to look into,” he said.

“It’s certainly inappropriate to just level accusations of impropriety … especially against someone who works as a volunteer,” he said. “Remember these [board members] deserve to be protected because they are a member of the community and they are doing a service for free.”

The association also sued Vergara for failing to allow an inspector in her unit who needed to do a visual examination for the 40-year recertification. Arcia said that El Conquistador’s association is under a strict deadline to complete the recertification, and that the declaration mandates homeowners allow inspectors in. “If you are going to play around, you can expect to get a lawsuit,” he said.

Vergara’s attorney, Silvino Edward Diaz, said the number of association filings against her is worth noting.

“It can stand to be interpreted that there is some sort of retaliatory action,” he said.

Pass the buck

The power dynamic at associations is supposed to work like a checks-and-balances system.

Although boards are the elected officials who make executive decisions, attorneys and managers are the trained professionals who should alert the board if its decisions are not in line with laws, said Tamara Reyes, founder of South Florida Property Management Solutions, which helps homeowners look into suspected association mismanagement.

In January 2023, a fire engulfed one of the buildings at New World Condominium, displacing over 200 residents.

A lawsuit accuses Prestige Management Solutions, led by Denise Brooks, of hiring an unlicensed roofing contractor that “haphazardly” placed nails through live wires, leading to the blaze.

Before the fire, Miami-Dade County had cited New World over fire safety violations and failure to meet its 40-year recertification, according to records.

In court filings, Prestige said the contractor was licensed. The property manager had advised the board of the needed repairs, but “the board chose not to go with recertification, nor authorize necessary repairs against the advice of Prestige Management,” according to the firm’s response in court.

The case presents an issue attorneys and managers often cited: They can inform boards about best practices but can’t force them to act.

If a board “decides not to do anything with what [information] you have provided, there is absolutely nothing that a property manager can do,” Brooks said.

Yet some aren’t convinced that professionals act in the best interest of associations.

Brooks also was the property manager at Star Lakes when a building caught fire in 2017, as well as at Zurich Condominium in North Miami when a fire broke out in 2020, pointed out Kareen LeCorps. LeCorps became Star Lakes’ vice president in December after taking part in the recall of the previous board.

“I have no evidence to support that it was arson,” LeCorps said about the fires. “But it does seem coincidental.”

Brooks denies any wrongdoing, saying the Star Lakes fire started in a cluttered space on a resident’s balcony and the Zurich fire was started by a tenant who was being evicted. As for the New World fire, she declined to comment due to the litigation but pointed to a Miami-Dade Fire Rescue report concluding that the cause was undetermined.

Plenty of attorneys and managers work hard to inform boards, Reyes said, but not all of them.