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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. 

A hearing in the year-long lawsuit has been set for April 23 before Miami-Dade Circuit Court Judge Migna Sanchez-Llorens involving Key Colony Homeowners’ Association, the master association covering 1,179 units, and EmeraldBay, one of four constituent buildings in the seaside complex. 

The amount of disputed fees in 2023 was put at about $170,000, an HOA official said.  EmeraldBay historically collected fees from its residents to pay the master association for maintaining common areas.

The Key Colony HOA says EmeraldBay missed a March 11 deadline to respond to revised allegations, and therefore it should win its case by default. It also says EmeraldBay should be sanctioned for what it says are misleading pleadings, court papers say.

Motions for default can lead to a quick end to a case, said University of Miami Law School professor Anthony Alfieri, an expert in civil litigation. 

“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. 

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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.

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Tony Winton is the editor-in-chief of the Key Biscayne Independent and president of Miami Fourth Estate, Inc. He worked previously at The Associated Press for three decades winning multiple Edward R. Murrow awards. He was president of the News Media Guild, a journalism union, for 10 years. Born in Chicago, he is a graduate of Columbia University. His interests are photography and technology, sailing, cooking, and science fiction.

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Tony Winton is the editor-in-chief of the Key Biscayne Independent and president of Miami Fourth Estate, Inc. He worked previously at The Associated Press for three decades winning multiple Edward R. Murrow...