It turns out that our association is now involved in a SECOND lawsuit filed yesterday — this time against the BKMA — in addition to last Friday’s lawsuit against Swire.
Let’s be clear about something important:
We are paying for BOTH sides of these fights.
We fund the lawsuits through our BK1 dues, while also funding the defense through BKMA dues.
Once again, this is another example of our board president, Olena Biletska, and the board committing owner money to major litigation without meaningful input from the owners themselves.
The lawsuit against Swire involves five condominiums. This BKMA lawsuit involves only four. Why is Isola not participating? Why are the other six condominiums and the two office buildings on Brickell Key not joining this effort?
Those are reasonable questions owners should be asking before additional association funds are spent.
The Cost of Constant Litigation
Using multiple law firms also increases costs because much of the same legal and factual groundwork must be repeated. In this case, we are reportedly funding 25% of the litigation costs. If these lawsuits fail, that comes on top of the roughly $30,000 already spent from owner dues on seawall-related legal battles.
And until these lawsuits are resolved, there will likely be increased scrutiny and costs involving:
• preventing apartment sales
• preventing mortgage approvals
• estoppel disclosures will include the lawsuits
• insurance cost considerations
• potentially future association borrowing costs would be higher
We are also building a reputation as an increasingly litigious condominium association, which may discourage vendors from doing business with us or increase costs to offset perceived risk.
Multiple Sides to this fight
To be clear, I am not defending the BKMA. I am simply pointing out some counterarguments that courts may consider. I am not a lawyer — nor do I play one on TV.
For example:
• Our association itself may face legal standing questions because it does not directly pay dues to the BKMA.
• The BKMA governing documents were established in 1982 and were publicly available to buyers before purchasing property on Brickell Key.
• Courts often defer to association boards (BKMA) under the business judgment rule, especially where engineering reports and safety concerns are involved.
• If engineers recommended seawall replacement and procedures were technically followed, courts may hesitate to invalidate the assessment entirely.
What about Need?
The lawsuit also questions the need for a new seawall. The images below show some of the damage directly in front of our building.
Anyone want to argue this is unnecessary?
In the end…
What happens if the end result of these lawsuits is that every condominium becomes responsible for its own seawall?
At the same time, the plaintiffs do raise issues that could resonate legally and politically:
• conflicts of interest
• developer influence
• transparency concerns
• and questions about assessment authority
The central legal question may ultimately become:
Does BKMA actually possess the contractual and statutory authority under the governing documents and Florida law to impose these seawall assessments?
But here is what we already know for certain: Owners are paying for the fight.
Owners are paying for the defense.
Owners Were Never Asked
Owners were never meaningfully consulted before association money was committed.
If owners had to voluntarily write personal checks outside of association dues to fund these lawsuits, would these lawsuits even exist?
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