When Eileen Breitkreutz filed a request to inspect her condo association’s financial records six years ago, she had no idea it would spark six years of litigation and a $395,554 judgment against her.
Now, the registered nurse and single mother is talking to bankruptcy lawyers to find out whether she’ll be able to keep her home.
“I don’t know how they can do this. I don’t know why nobody stops them,” Breitkreutz said about the Boca View Condominium Association’s legal fights against her and several other unit owners who have asked to see their community’s books.
While state law gives condo owners the right to inspect their associations’ financial records, they’re not protected from getting hit with crippling legal fees if their associations fight back, hire expert attorneys and win.
Last month, a Palm Beach County circuit judge ordered Breitkreutz to pay $395,554 that the association’s attorneys, members of the powerful Becker law firm — formerly known as Becker & Poliakoff — said she owes for the time they spent fighting her request. She still hasn’t seen the association’s financial records.
Welcome to what Breitkreutz calls “a living hell.”
Conflict and distrust simmer at this seemingly tranquil four-story, 72-unit complex, located just a few blocks west of the beach in Boca Raton. Multiple lawsuits and protracted disputes have erupted between residents and the Boca View Condominium Association’s governing board, turning the property into the worst nightmare of anyone leery of buying into an association-controlled community.
A ‘warning’
In the room where unit owners get their mail, a notice of a $395,554 judgment lien that the association filed against Breitkreutz on June 3. She said she’s never seen any other liens or notices of fines against unit owners posted in the room before.
Breitkreutz feels it was posted there by association president Diana Kuka as “a warning” to others not to challenge Kuka’s authority.
Breitkreutz’s case is just one of numerous lawsuits that the association has pursued against unit owners who have pushed back against Kuka over the past decade by filing complaints with state Department of Business and Professional Regulation (DBPR) Division of Florida Condominiums, Time Shares and Mobile Homes, which investigates and arbitrates disputes between owners and associations.
Backed by Becker, the state’s most powerful community association law firm, Kuka and her association board are quick to challenge nonbinding arbitration rulings favorable to unit owners by suing the owners to overturn the rulings. They rarely lose, and the Becker attorneys rarely fail to extract legal fees from unit owners they vanquish.
The South Florida Sun Sentinel emailed three of the association’s Becker attorneys a list of questions raised by residents. The emails also sought an interview with Kuka to ask about the residents’ claims, and to ask why relations at the complex are so contentious. As of this story’s publication date, her attorneys have not answered the questions nor has Kuka agreed to an interview.
Jonathan Yellin, an attorney with the Boca Raton-based firm Backer Aboud Poliakoff & Foelster, said his firm has represented four Boca View residents, including Breitkreutz, who have asked to inspect the association’s financial records in recent years.
The residents, he said, have a right to know how the association is spending money that all owners pay for operations and maintenance. Breitkreutz said she and other unit owners see little evidence that the building is being kept up, citing what she calls an amateur exterior paint job by a maintenance worker and housekeeper, deteriorating concrete, and potholes in the parking lot, among other issues.
Breitkreutz is determined to stay at Boca View Condominiums. She has lived there since 2002, when it was an apartment complex, and was one of the original buyers when it converted to condominiums in 2004. State records show that Kuka has served as board president since 2007. Breitkreutz served with her, as secretary, for a year in 2007.
She’s hopeful that state law will prevent the association from seizing her home if she doesn’t pay the judgment, but a lien might prevent her from selling it for a profit or refinancing it, she says. She’s still exploring her legal options.
“I really don’t think I should have to leave my home because of someone else,” Breitkreutz said. “I want to live by the beach. I didn’t move to Florida to live in Coral Springs, Lighthouse Point or West Boca.”
A web of conflict
Court records reveal the $395,554 judgment against Breitkreutz is the end result of a long journey of intertwined cases involving several other owners:
The Shefets: In 2013 and 2014, David and Dganit Shefets, of Harrisburg, Pennsylvania, transferred ownership of two units to a company they formed, Cool Spaze LLC, for the purpose of leasing the units. But the association board refused to process and approve lease applications, stating the Shefets did not seek board approval to transfer ownership of the units. The Shefets sued, contending that the association’s governing documents did not require approval of sales. That lawsuit is ongoing, with 348 documents filed through June 3.
In August 2016, Cool Spaze filed a request to inspect the association’s financial records. The association denied the request, saying Cool Spaze was not entitled to see the records because it was not an association member.
The Lepselters: Edward Lepselter, a unit owner and Realtor with Remax LLC, filed two lawsuits in 2013. The first suit named Kuka as defendant. Lepselter claimed Kuka spit on him and called him “white trash” during a board meeting and denigrated his and his wife Eleanor’s work as Realtors in communications with other residents and Remax. Both parties agreed to dismiss the matter after the couple filed a separate lawsuit against the association.
The second suit, filed less than a month later in small claims court, sought $1,364 for damage to the couple’s unit that Leselter said was caused by a broken water pipe that the association failed to maintain.
In December 2013, a county judge ruled in the association’s favor in the pipe case, finding the Lepselters were not entitled to damages because the association had offered to have its own contractor make the repairs. But in April 2014, the same judge shot down the association’s claim that its attorneys were entitled to recover $120,000 in legal fees.
In her ruling, County Judge Sandra Bosso-Pardo wrote that the $120,000 bill was unsupported by the attorneys’ documentation. “The amount claimed in this case shocks the court,” the judge’s ruling stated. “In reviewing defense counsel’s time records it is clear that many entries are duplicative, unreasonable, unnecessary and excessive.”
After the association unsuccessfully appealed the denial of their full fee request, Lepselter was ordered to pay about a third of the original amount — $32,290.
Of 287 filings in the case, fewer than 100 involved the original complaint and the rest dealt with entitlement to attorneys’ fees and how much money the association would be allowed to recover.
Eileen Breitkreutz: On Wednesday, Oct. 12, 2016, Breitkreutz submitted her request “for myself or my authorized representative” to inspect and copy association records. She sent the request to the association’s property manager, Pointe Management Group Inc., via certified mail as required by state law, and cited the law’s requirement that the records be made available within five business days. (A change in state law now gives associations 10 business days to provide records.)
Records she sought spanned 2014 to 2016 and included annual operating budgets and reserve budgets, monthly financial statements, annual audits or reviews, bank statements, detailed ledgers, receivables for each unit owner, paid invoices, and invoices for legal representation.
On Friday, Oct. 14, the date the certified letter was scheduled for delivery, Breitkreutz sent an email to the property manager that she noted was a follow-up to her formal request. The email requested an appointment to inspect the records on any business day during the upcoming week.
The record request was a verbatim copy of one the Shefets had sent two months earlier and were told would not be fulfilled because of the Cool Spaze deed transfer dispute. In a later deposition, Yellin’s partner Ryan Poliakoff (son of Becker co-founder Gary Poliakoff), acknowledged that their firm, which also represents the Shefets, looked for “other concerned owners” to submit the record request. The Shefets, Breitkreutz later testified, agreed to pay for her legal representation if the association fought the request.
A short window
Breitkreutz said she fired up her computer on late Thursday afternoon of the week after she mailed her request and found an email dated the previous day, Oct. 19, at 5:15 p.m. It was from the property manager informing her that “the association is setting your date and time” — less than 24 hours later — “for inspection of records.”
As she looked at the email, Breitkreutz realized the scheduled day was now and the time — 3 p.m. — had passed. Quickly she emailed Ryan Poliakoff, one of her two attorneys: “I just opened this letter and realized the time has passed. Please advise.”
Thirty minutes later, Poliakoff emailed Becker litigator Robert Rubinstein, who was handling the request for the association, and asked to reschedule.
Two minutes later, Rubinstein responded: “I will find out what other days you can inspect the records and thanks for letting me know you will do the inspection.”
Ten days later, after two more emails from Poliakoff, Rubinstein responded, “Ryan, I do not know what to tell you, other than I have never heard back from the Association and I do not expect to hear back from them.”
It was clear to Breitkreutz and Poliakoff that the association had no intention of making the records available again.
‘It can get very expensive’
On Dec. 5, 2016, Breitkreutz filed a petition seeking arbitration by the Department of Business and Professional Regulation’s Division of Land Sales, Condominiums, and Mobile Homes.
Arbitration requests are a required first step in disputes between unit owners and association boards, and arbitrators’ decision, while nonbinding, are typically accepted by unit owners and associations, says Jan Bergemann, president of Cyber Citizens for Justice, which bills itself as the state’s largest statewide property owners advocacy group.
“People don’t want to spend the money (to appeal) because it can get very expensive,” he said.
In Breitkreutz’s case, the arbitrator found that the association “willfully denied” her record request by giving her less than 24 hours’ notice, “thereby failing to give (her) a reasonable opportunity to inspect its records,” according to the order issued on April 8, 2017. The association was ordered to provide Breitkreutz access to the association’s records within 10 days and pay “the maximum statutory damages of $500.”
Breitkreutz got neither access to the records nor the $500. On July 5, 2017, the association sued her in Palm Beach County Circuit Court. Becker attorney JoAnn Nesta Burnett filed a complaint asserting that the arbitrator’s decision “misapprehended the law and the facts.”
In its complaint and in later filings over the following five years, the association not only argued that it fulfilled its requirements under state law by granting Breitkreutz access to the records, it also called into question her motives for making the record request.
The association argued that it was unknown whether Breitkreutz was telling the truth when she said she didn’t open the email scheduling the record inspection until after it was to have taken place.
The association argued that Breitkreutz purposely missed the records inspection so she could file her petition for arbitration and “leverage claims” by her attorneys’ other clients, the Shefets, in their lawsuit over the deed transfers.
In another filing, the association claimed the Shefets enlisted Breitkreutz as a “straw person” to make a record request identical to the one that they tried to make.
That’s irrelevant, Jonathan Yellin, lead counsel for Breitkreutz, said in an interview.
As a unit owner, Breitkreutz has a right under state law to inspect records regardless of the reason, he said. All unit owners who have requested to inspect the association’s records “have their own reasons,” he said.
In addition to questioning Breitkreutz’s motives, the association’s lawyers argued that a handful of factual errors in her petition for arbitration proved her motives were unpure. The petition was legally flawed, they said, because it stated that the property manager received the record inspection request on Oct. 13 and not Oct. 14. They also claimed that calling her email a “follow-up” to her record request was “yet another misrepresentation” because the property manager received the email before the certified letter.
The association’s arguments prevailed in a non-jury trial on Dec. 20, 2018, before Palm Beach County Circuit Judge Donald Hafele. The judge determined that Breitkreutz had the responsibility to “carefully monitor her email” during the five-day response window triggered by her record request.
‘Most boards are happy’ to provide records
Travis Moore, Florida-based lobbyist for the national industry trade group Community Associations Institute, said the Boca View hostilities are not typical of communities across Florida.
“Most boards are happy to facilitate access to documents,” Moore said by email. “Yes, sometimes the logistics associated with record inspections become cumbersome. In some cases, owners request record access for sport, spite or simply to rile up the leadership and that leads to a plethora of complaints to DBPR but those instances represent a tiny fraction as record inspections take place every day among Florida’s 50,000+ associations.”
Bergemann, of the unit owners’ advocacy group, says the way it should work is, “The member making a request would get a phone call: ‘How about coming in at 10 a.m. tomorrow?’”
Whatever the reason, that’s not the way it works at Boca View Condominiums.
The Becker lawyers began their efforts to collect attorneys’ fees in June 2019, six months after the judge ruled against Breitkreutz.
Citing testimony by Breitkreutz and Yellin that the Shefets were paying her attorneys, the association filed a motion in September 2019 to have the Shefets named as parties to the suit so they could be billed for the fees. The Shefets objected, saying they had no formal written agreement to indemnify Breitkreutz.
Judge Hafele ruled that the association waited too long. The Shefets could not be added to the suit six months after his final ruling, he said.
The association appealed and lost. In all, it spent more than two years trying to hold the Shefets responsible for their fees.
On May 18, 2022, six years after Breitkreutz sent her request to inspect the association’s financial records, Hafele issued a judgment ordering Breitkreutz to pay the association’s $395,554 legal bill for 1,234 hours that the Becker team spent litigating the case. Those hours were billed through February 2022 and included time spent in the unsuccessful two-year effort pursuing fees from the Shefets.
Hafele’s ruling found that the $395,544 billing was “necessary and reasonable” in light of the amount of litigation required by Breitkreutz’s team’s “aggressive defensive posture.”
In an email, Yellin said Breitkreutz should not have been billed for the association’s pursuit of fees from the Shefets. “How is it fair to award fees against a party that had nothing to do with a post-judgment wild goose chase that failed miserably?” he asked. “Shouldn’t the award of fees be limited to the efforts taken by the prevailing party that were actually successful?”
Two days later after the ruling ordering Breitkreutz to pay all of the fees, the association filed a demand for a detailed accounting of all of her assets and liabilities, including tax returns, general ledgers, customer invoices, vendor contracts, deeds, bank statements, stock certificates, and broker statements.
Another record request
On Feb. 6, 2019, two months after Breitkreutz’s court loss, Eleanor Lepselter filed her own request to inspect the association’s financial records. Yellin would be her authorized representative, Lepselter’s request stated. Eric Estabanez, Boca View’s property manager, responded by stating that only Lepselter or Yellin, and not both, would be allowed to inspect the records.
Yellin and Lepselter both showed up at Estabanez’s office for the scheduled inspection and were again told only one would be allowed into the room with the records.
In an email to Estabanez filed in court, Yellin wrote that Kuka, the association president, her brother Igly Kuka and the board’s vice president and treasurer Giuseppe Marcigilano “took turns coming out, trying to intimidate us into giving up this fight, refusing to allow me to inspect the records.”
Yellin recently recounted, “I wasn’t going to allow [Lepselter] to go into that room by herself with them.”
In a pattern recalling Breitkreutz’s case, Lepselter filed a complaint with DBPR and requested arbitration.
The association was wrong, the arbitrator ruled, in its interpretation of a clause in state law that says records must be made available to “the member or the authorized representative of such member.” Clearly, the arbitrator ruled, the language was written “in anticipation that a member and her attorney would review the records together.”
The association was ordered to pay $500 in damages and make the records available “immediately ... and at all times in the future.”
Lepselter got neither. On Jan. 9, 2020, the association filed suit against her to overturn the arbitrator’s ruling.
The suit said the arbitrator “misapprehended the law,” and that Lepselter’s record request was “fatally flawed” and made in “bad faith” on behalf of Cool Spaze.
Two and a half years and 236 filings later, the lawsuit remains open.
