Article Courtesy of The Daily Business Review
By Lidia Dinkova
Published December 3, 2018
A Sunny Isles Beach hotel can pursue its legal claims against a neighboring
condominium and some unit owners accused of having protruding balconies that
encroach on hotel property.
The Third District Court of Appeal unanimously revived the lawsuit by
Newport Beachside Hotel & Resort’s lawsuit against La Perla Condominium
Association Inc. and owners.
The issue revolves around a 2004 agreement when the condo developer bought
the land at 16699 Collins Ave. from the hotel.
The 326-unit La Perla was allowed to build some units that extended over the
hotel’s property. In turn, the hotel had the right to use the condo’s
driveway for commercial deliveries, garbage pickup and valet parking,
according to the decision issued Wednesday.
The La Perla association was the first to raise an issue, saying in a 2016
lawsuit that the hotel at 16701 Collins Ave. overstepped the agreement by
building garbage enclosures with metal gates and concrete walls on condo
property and taking over some condo common areas by converting them to
offices for its exclusive use. The complaint also said the hotel tapped into
the condo tower’s power supply.
Hotel owner Five Seas Investors Inc. responded by denying the allegations
and saying anything that wasn’t covered by the agreement was done with the
condominium’s approval, including the garbage rooms.
“Plaintiff and/or its predecessor were aware that such rooms were being
constructed and allowed them to be built, without objection of any kind.
Plaintiff cannot now change its position to defendants’ detriment,” Five
Seas said in the court filing.
The company also filed a counterclaim against the condo association and the
owners of 10 units over the allegedly encroaching balconies.
Five Seas argued the agreement allowed only a few lower-level floors at La
Perla to encroach on the hotel property, but the encroaching balconies are
on higher floors and not covered by a limited easement area, according to
Those balconies are on floors 39 to 43, according to the opinion.
Miami-Dade Circuit Judge Thomas Rebull on Oct. 16, 2017, dismissed Five
Seas’ trespass claims, agreeing with motions filed by the association and
some of the owners.
In a subsequent order in May on a request for reconsideration, Rebull said
Five Seas’ claims were without merit and called its counterclaim retaliation
for La Perla’s original suit. He concluded the balconies in dispute didn’t
violate the easement agreement.
“It simply defies logic and common sense that sophisticated real estate
investors and developers would agree to the limited easement area … which is
low to the ground over the Five Seas property, but not agree to the
allegedly encroaching balconies, which … hang over the Five Seas property to
a much lesser extent,” Rebull wrote.
The appellate panel disagreed, saying this is a broad interpretation of the
“The trial court apparently accepted the argument of the condominium and the
unit owners that this agreement granted them air rights to build over ‘any
portion’ of the hotel’s property ‘without limitation,’ ” Judge Thomas Logue
wrote. “ This far-reaching interpretation would grant the condominium the
right to build over all of the hotel’s air space. We cannot read the
agreement so expansively.”
Judges Leslie Rothenberg and Vance Salter agreed.
On appeal, Five Seas named only some of the unit owners but not the
association, which still had claims pending in the trial court.
Ritter Chusid’s Gary Rosner and Shawn Horwick, who represented unit owners
on the appeal, declined to comment citing pending litigation.
The appellees also were represented by Shutts & Bowen partners Steven Ebner,
Stephen Maher and Jamie Wasserman in Miami. They didn’t return requests for
comment by deadline.
Saul Ewing Arnstein & Lehr partners Franklin Zemel and Alan Poppe and
associate Ariel Deray in Fort Lauderdale represented Five Seas on appeal.
They had no comment by deadline.