Trial ruling won’t stop development of Prive condo in Aventura

Article Courtesy of The South Florida Business Journal
By Brian Bandell  

Published October 6, 2017


Both sides claimed victory following a trial between the developer of the Prive at Island Estates and a neighboring homeowners' association, but it is clear that the judge’s ruling won’t stop construction from moving forward.

The 160-unit condo with two 16-story towers is under development on the North Island in Dumfoundling Bay in Aventura. It can only be accessed by driving over a bridge through the South Island, which connects to the mainland.

On the line is a $500 million project with condo units starting at $2.1 million. It should be completed in November.

In 2013, the Island Estates Homeowners Association, representing the single-family homeowners on the South Island, filed a lawsuit against Prive builder Two Islands Development Corp., led by Gary Cohen, seeking to block the project by throwing out numerous development agreements. After a non-jury trial in August, Miami-Dade County Circuit Court Judge William Thomas issued his ruling Sept. 26.

Glen Waldman, attorney for the developer, said the judge was a “welcome validation and acknowledgment'' of his client's right to build the condo.

Construction of Prive in Aventura should be completed in November.

But Susan Raffanello, who represents the homeowners association, said each of the four counts the judge ruled on was in favor of the association, and the ruling should be viewed as a victory for her client.

So who’s right? Essentially, the judge voided the specific agreements that allowed for access to the South Island, but created a common law easement that said North Island residents could still travel there. That means construction can continue.

The judge ruled that both a 2012 easement agreement and a 2013 easement operating and development agreement between Two Islands Development Corp. and the association were null and void. The goal of these agreements was to allow residents of Prive on the North Island to travel through the South Island to reach their condos and have access to common areas on the South Island.

In commenting on the 2012 easement that gave residents of the North Island access to all common areas of the South Island, Thomas ruled: “The developer acted for its own self-interested concerns without any regard for what would be deem[ed] necessary or desirable for the proper operation, maintenance, general health, welfare and /or safety of the South Island.”

The judge also said it was “overreach” for the homeowners association to say that development of a multifamily building on the North Island came as a surprise to residents of the South island.

Addressing the 2013 easement agreement that created a new master maintenance association to take over control of the South Island’s common areas from the homeowners association, the judge ruled that the process the developer used to pass it was “illogical and unreasoned.”

However, the judge ruled that Prive residents could still travel through the South Island to reach their homes. Thomas said there is an “implied easement of necessity” for access under common law because there is no other way for North Island residents to reach their property besides traveling through the South Island.

“A limited common law implied easement exists in favor of the North Island over the South Island that is reasonably necessary for the beneficial use or enjoyment of the North Island,” Thomas ruled. “This includes the development of multifamily condominiums presently being constructed on the North Island."

Raffanello said she intends to appeal the judge’s implied easement ruling. She said that nothing in his ruling would stop Prive from moving forward with construction, but it does limit the access of Prive residents to the common areas of the South Island.

The Prive developer has pitched the marina, which is located on the South Island, as an amenity for the condo owners. Of the 48 boat slips, 18 were assigned to residents of the South Island. Thomas ruled that only those 18 slips should be turned over to the association, not the entire marina, as requested by the association.

Thomas' ruling clarifies that the marina is common ground for residents of both islands, according to a statement from the Prive developer.

There’s still another pending lawsuit that could impact the project. A group of South Island homeowners filed a complaint in 2014, seeking to stop the Prive developer from building a sidewalk across the lawns of their homes, leading to the North Island. The homeowners claim that the sidewalk should be removed, and that would invalidate the city of Aventura’s approval of the entire condo. The developer claims it has a right to build the sidewalk.