Victory is ours — say both sides in the war surrounding Privé at Island Estates

Despite ongoing legal dispute, developers say condo project will be delivered at the end of November.

TRD MIAMI /
Sep.September 29, 2017 05:00 PM

Prive at Island Estates and BH3’s Charlie Phelan, Greg Freedman and Daniel Lebensohn and Gary Cohen

A judge granted partial ownership of the marina at Privé at Island Estates in Aventura to nearby homeowners, amid the tumultuous, years-long war pitting neighborhood residents against the developer of the condo project.

Yet both sides declared victory in the ruling issued this week by Miami-Dade Circuit Judge William Thomas.

The judge gave developers Gary Cohen and BH3’s Greg Freedman, Dan Lebensohn and Charles Phelan development access rights to its two-tower, 160-unit project under construction on an 8-acre island at 5000 Island Estates Drive.

In a 26-page opinion, Judge Thomas ruled as invalid the developer’s previous access easement agreement which gave unlimited access over the South Island Homeowners Association’s common areas to get to and from the Privé project on the North Island. In the ruling, the judge said the developer “acted for its own self-interested concerns without any regard for the proper operation, maintenance, general health, welfare and/or safety of the South Island.”

The future owners of the Privé condos will have only a common law implied “easement of necessity” according to the ruling. That means they can use the road to get to and from their project, said Susan Raffanello, partner at Coffey Burlington, who represents the homeowners.

“That is a far cry from the unlimited and unfettered access to future Privé residents over the South Island that existed under either of the two agreements that were declared void,” she said.

Yet according to Lebensohn, “We have absolute right to traverse the South Island through our easement as further affirmed by the judge, and it is without restriction…. It is unfettered. The only fettered access is in plaintiff counsel’s mind.”

The developer was also ordered to convey title to the marina  including 18 marina slips owned by the homeowners and submerged land — to the association for the South Island homeowners, as well all the common areas within six tracts of land which include bridges, road, traffic circle and other areas on the plat that the developer had wrongfully failed to convey in 2013, according to Rafanello.

But the developer maintains its ownership of more than 30 unsold boat slips, Lebensohn said.

“The court entered judgment in the association’s favor on each of the associations’ counts, which included invalidating two prior easement agreements, and forced the developer to convey common areas to the association that were wrongfully and maliciously withheld by the developer for years,” Raffanello said.

Privé Developers LLC’s principals said in a joint statement that they were “grateful” that the court acknowledged their “long-standing rights.” They say the project will be delivered in late November.

A spokesperson for the homeowners’ association said in a statement that “while the association is pleased with the verdict, it may seek further relief, in addition to the removal of the buildings, if necessary.”

In June, Judge Thomas ruled that the statute of limitations had long expired for the Island Estates Homeowners Association and the Williams Island Property Owners Association to challenge a vested rights determination agreement.

The legal wranglings have dragged on for years. Homeowner associations first sued the developers in 2013 in an attempt to stop construction of the Privé condo development on the basis Cohen had agreed in the late 1990s to only build single-family homes on the project site, which is on an isle north of Williams Island.

In a separate lawsuit, filed by neighborhood resident Dara Clarke against the developer, attorney Matt Leto of Hall Lamb Hall & Leto just secured a court order rejecting the city and developer’s motion to dismiss and paving the way for a trial set to begin in March, according to a spokesperson for Leto. Clarke had sued both entities alleging various violations, including defamation and excessive use of force.

In January, New York-based Maxim Capital and Austin-based Prophet Capital Asset Management provided $102 million in financing to the developers, adding to a previous $25 million loan from Maxim.

Privé topped off in November at 16 stories and is almost 75 percent sold with more than $350 million under contract, according to Lebensohn.


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