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Filing # 197782658 E-Filed 05/07/2024 01:07:33 PM
IN THE CIRCUIT COURT OF THE 11"
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
EPIC WEST CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-profit
corporation,
Plaintiff,
CASE NO. 2024-
vs.
EPIC HOTEL, LLC, a Florida limited liability
company, and EPIC WEST TOWER MASTER
ASSOCIATION, INC., a Florida limited liability
company,
Defendants. /
COMPLAINT
Plaintiff, EPIC WEST CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit
corporation, acting on its own behalf and on behalf of its unit owner members, sues Defendants
EPIC HOTEL, LLC, a Florida limited liability company, and EPIC WEST TOWER MASTER
ASSOCIATION, INC., a Florida limited liability company, and in support, states as follows:
JURISDICTION AND VENUE
1 This is an action for reformation, declaratory, equitable, and injunctive relief, and
for damages challenging the legality of a master declaration under the Florida Condominium Act
and for overcharges and wrongful assessments in excess of $75,000 exclusive of interest, attorney’s
fees, and costs within the jurisdiction of this court pursuant to Fla. Stat. §26.012.
2 The subject property of this action is the Epic West Tower, a mixed-use
hotel/condominium tower in Downtown Miami comprised of a 415-room luxury hotel and 342
condominium residences (“Epic West Tower”).
3 Plaintiff, the Epic West Condominium Association, Inc. (hereinafter, the
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 2
“Condominium Association”), is a not-for-profit corporation located in Miami-Dade County,
Florida. Plaintiff is a condominium association organized pursuant to the provisions of Chapter
718, Florida Statutes (the “Condominium Act” or the “Act”), which governs the Epic West
Condominium (“Condominium”) located within the Epic West Tower at 200 Biscayne Boulevard
Way, Miami, Florida. The Epic West Condominium was established as a condominium by the
recording of its Declaration of Condominium on December 12, 2008 in Official Records Book
26683 at Page 3040, of the Public Records of Miami-Dade County, Florida (“Condominium
Declaration”). A copy of the Condominium Declaration is attached hereto as Exhibit A.
4 Defendant, Epic Hotel, LLC (the “Hotel Lot Owner” or “Defendant”) is a Florida
limited liability company which, as more particularly set forth in the Master Declaration (defined
below), owns the hotel component (“Hotel”) located at the Epic West Tower and purports to own,
manage, and control the “Shared Facilities” as defined by the Master Declaration.
5 Defendant, Epic West Tower Master Association, Inc., is a Florida limited liability
company (“Master Association” or “Defendant”), that was created by the recording of the
Declaration of Covenants, Restrictions and Easements for the Epic West Tower (the “Master
Declaration”) in the Official Records Book 26683 at Page 2853 of the Public Records of Miami-
Dade County, Florida. A copy of the Master Declaration is attached hereto as Exhibit B. The
Master Association governs the interrelationship between the Condominium Association and the
Hotel Lot Owner at the Epic West Tower and effectuates the provisions of the Master Declaration.
As stated in the Articles of Incorporation for the Master Association, the “objects and purposes of
the [Master] Association are those objects and purposes as are authorized by [the Master
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Declaration].”! (Master Articles, Art. III).
6. The court has personal jurisdiction over Defendants because they transact and
conduct business and committed the breach of contract and tortious acts that are the subject of this
case in Miami-Dade County, Florida.
7
Venue is proper in Miami-Dade County, Florida because the property at issue, the
Epic West Tower, is located in Miami-Dade County, Florida, and the causes of action alleged herein
accrued in Miami-Dade County, Florida.
8 The Condominium Association brings this action pursuant to Fla. Stat. §718.111
and Fla. R. Civ. P. 1.221 in its own right and as the lawful representative of its unit owner members.
9 The causes of action herein concern matters of common interest to the
Condominium Association’s unit owners, which matters include, but are not limited to, the
governing documents relating to the Condominium Association, including the Condominium
Declaration and the Master Declaration, the operation of the Condominium Association as a
condominium in connection with the Hotel Lot Owner and the Master Association, and the
assessments imposed against all Condominium unit owners.
10. All conditions precedent to the commencement of this action have been satisfied,
performed, are futile, or have been waived.
11. As a direct and proximate cause of the foregoing, the Condominium Association has
retained the undersigned law firm and has agreed and is obligated to pay the Condominium
' Paul Willingham and Richard Ortoli are board members of both Plaintiff, the Epic West
Condominium Association, Inc. and Defendant Epic West Tower Master Association, Inc.
Because of the voting structure of the Defendant Master Association, which gives eternal control
to the Defendant Epic Hotel, LLC as the Hotel Lot Owner, Willingham and Ortoli’s votes cannot
overcome the Hotel’s majority on the Master Association Board. The actions of the Master Board
are not to be attributed to the actions of Willingham and Ortoli for that reason.
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 4
Association’s reasonable attorney’s fees for the undersigned law firm’s services.
BACKGROUND
The Florida Condominium Act
12. Section 718.201(2) of the Act states that its purpose is “to establish procedures for
the creation, sale, and operation of condominiums.”
13. Section 718.104 of the Act states that “[e]very condominium created and existing
in this state shall be subject to the provisions of this chapter.”
14. Section 718.104(2) of the Act requires that a condominium’s declaration identify
the precise property being submitted into the condominium form of ownership.
15. A condominium declaration must identify “[t]he undivided share of ownership of
the common elements and common surplus of the condominium that is appurtenant to each unit
stated as a percentage or a fraction of the whole” and specify “the ownership share of the common
elements assigned to each resident unit...based either upon the total square footage of each
residential unit in uniform relationship to the total square footage of each other residential unit in
the condominium or on an equal fractional basis.” §718.104(4)(f), Fla. Stat.
16. The Act states that each unit shall: (a) “own [a]n undivided share in the common
elements and common surplus” and (b) enjoy “the exclusive right to use and enjoy all common
elements” in accordance with their intended purposes. §§718.106(2) and (3), Fla. Stat.
17. The Act declares that each unit owner’s undivided share of the common elements
“shall not be separated from [the unit] and shall pass with the title to the unit.” §718.107, Fla. Stat.
18. Section 718.108(1) of the Act mandates that “common elements” include:
(a) The condominium property which is not included within the units;
(b) Easements through units for conduits, ducts, plumbing, wiring, and other
facilities for the furnishing of utility services to units and the common
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elements;
(c) An easement of support in every portion of a unit which contributes to the
support of a building; and
(d) The property and installations required for the furnishing of utilities and
other services to more than one unit or to the common elements.
(Emphasis added). The Act does not list any exceptions.
19. The Act dictates that “[t]he operation of the condominium shall be by the
association...,” dispelling any notion that anyone other than the condominium unit owners,
through their condominium association, can operate condominium property. §718.111(1)(a), Fla.
Stat.
20. When these provisions are read together, the Act decrees that condominium
property must be owned and operated by the unit owners, through their condominium association.
21. The Act further mandates that if facilities, amenities, or components serving a
condominium meet the statutory definition of “common elements,” then they must be owned and
operated collectively by the unit owners through their condominium association.
22. Epic West Tower is not exempt from the Act merely because it is a mixed-use
building, containing both condominium units and a hotel.
23. A developer or its successor cannot circumvent the requirements of the Act by
improperly reclassifying common elements as “Shared Facilities,” “Shared Components,” or any
other nomenclature. More specifically, a hotel developer cannot strategically avoid submitting to
the “condominium form of ownership” parts of the property that the Act requires to be common
elements and thereby evade the Act on grounds that the property is not “association or
condominium property.” But that is exactly what the developer, and subsequently, the Hotel Lot
Owner have sought to do at Epic West Tower, in violation of the Florida Condominium Act.
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 6
24. In his Order Granting Summary Judgment in Central Carillon Condominium Beach
Association, Inc. v. Carillon Hotel, LLC, et al., Case No. 2016-011172-CA-01 (Jan. 30, 2023),
(hereinafter “Carillon”), Judge Michael Hanzman explained that “[E]mbedded throughout Chapter
718 is an unambiguous legislative edict: condominium property, including common elements, is
to be owned and controlled by all unit owners, and control over such property must be exercised
democratically.” Carillon at p. 23 (citing White Egret Condo., Inc. v. Franklin, 379 So. 2d 346,
350 (Fla. 1979)). Common elements are “the portions of the condominium property not included
in the units.” Fla. Stat. § 718.103(8). (Emphasis added). “The Act makes no exception for
condominiums located within, and a part of, a ‘mixed-use development.’” Carillon at p. 24.
25. Judge Bailey, Judge Hanzman’s successor, entered a Final Judgment that confirmed
Judge Hanzman’s summary judgment ruling and ordered the following parts of the Carillon
property, which constituted common elements, be transferred to the condominium association
within 90 days:
(a) utility, mechanical, electrical, telephonic, telecommunications, plumbing
and other systems; utility, mechanical, electrical, telephonic,
telecommunications, plumbing and other systems;
(b) heating, ventilating and air conditioning systems;
(c) trash rooms, trash systems, and trash chutes;
(d) structural components of the improvements and/or air space, exterior walls,
exterior glass surfaces, finishes and balconies, terraces and/or facades
attached or affixed thereto;
(e) roofs, all roof trusses, roof support elements and roofing insulation;
elevators, elevator shafts, elevator cabs, elevator cables and/or systems
and/or equipment used in the operation ofthe elevators;
(f) life safety systems including all gates, doors, fencing, the perimeter of the
property, and any points of entry onto the property;
(g) lawns, landscaping;
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(h) street and exterior lighting fixtures, installations and equipment;
@) sidewalks, alleyways, drives, pedestrian and vehicular ingress and egress;
G) lobbies, receptions, hallways, landings, vestibules;
(k) rooms, offices, meeting rooms, bathrooms, closets, and other spaces
associated with operating or maintaining Association properties or any of
the foregoing facilities;
@) easements in favor of the Hotel Lot Owner or any of North Carillon Beach
Condominium Association, Inc., Central Carillon Beach Condominium
Association, Inc., or South Carillon Beach Condominium Association, Inc.
under Master Declaration;
(m) and easements through units for conduits, ducts, plumbing, wiring, and
other facilities associated with the foregoing, easements of support in every
portion of unit contributing to any of the foregoing, and property and
installations required for the furnishing of the foregoing;
26. Under well-settled Florida law, a developer may not use a master association to
circumvent the protections of the Act. Downey v. Jungle Den Villas Recreation Ass'n, Inc., 525
So. 2d 438, 441 (Fla. Sth DCA 1988) (“The legislative intent of the requirement in section
718.110(4) of unanimous approval of any material alteration or modification of the appurtenances
to a condominium unit should not be vulnerable to circumvention by the simple act of setting up
an ostensibly independent corporation empowered to perform some of the functions of a
condominium association but without the unit owner protection provided by chapter 718, Florida
Statutes”); Carillon; IconBrickell Condo. No. Three Ass'n, Inc. v. New Media Consulting, LLC,
310 So. 3d 477, 481 (Fla. 3d DCA 2020); (Order Granting Motion for Judgment on the Pleadings,
D&J South Beach Investments, LLC v. De Soleil South Beach Residential Condominium
Association, Inc., Case No. 2021-027604-CA-44 (Oct. 24, 2022)).
27. Defendants cannot lawfully turn fee simple unit owners into individuals who
simply “live in [their] hotel” and “have no more rights ‘than would a transient hotel room occupant
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have over the hotel in which they book a room. oo Carillon at p. 3. To hold otherwise would allow
Defendants to “circumvent the statutory protections afforded by the Act by simply placing
condominium associations under the umbrella of a master association and using that master
association to grant a commercial operator complete ownership of, and control over, property the
Legislature has said must be owned/controlled by unit owners, would neuter Chapter 718 and
render its protections anemic.” Carillon at p. 28.
The Interrelationship Between the Condominium Declaration and the Master Declaration
28. The Condominium Declaration expressly and accurately provides that the Epic
West Condominium is a condominium “governed by the Florida Condominium Act (Chapter 718
of the Florida Statutes) as it exists on the date hereof and as it may be renumbered.” Condominium
Declaration, sections 1.2 and 2.2.
29. Thus, the applicable Condominium Act that governs the Epic West Condominium
and the Condominium Association is as it existed on December 12, 2008 (the date of the
Condominium Association’s creation) and as the Act may be renumbered, not as the Condominium
Act has subsequently been amended.
30. According to the Master Declaration, the Condominium Association and the Hotel
Lot Owner each own a “Lot” within the Epic West Tower. The two Lots are defined as the
“Condominium Lot” and the “Hotel Lot.”
31. The Condominium Declaration was drafted by the same author as the Master
Declaration.
32. The two declarations dovetail so that, notwithstanding the express intent for the
Condominium Lot to be a condominium and to conform to the Act; and, while the Condominium
Declaration purports to submit certain realty and improvements to the condominium form of
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ownership, the Condominium Declaration simultaneously carves out almost all of the property that
services the Condominium (which property is then improperly redefined as the “Shared Facilities”
of the Master Declaration).
33. The Condominium Declaration defines the “common elements” a:
(a) The portions of the condominium Property which are not included in the
units.
(b) An easement of support in every portion of a Unit which contributes to the
support of the Building.
(c) Any and all portions of the Life Safety Systems (as hereinafter defined),
regardless of where located within the Condominium Property.
(d) Any other parts of the Condominium designated as Common Elements in
this Declaration.
Condominium Declaration, section 2.11. (Emphasis added).
34. While this definition ostensibly attempts to track the definition of “common
elements” in section 718.108, Fla. Stat., cited supra, the rest of the Condominium Declaration’s
section 2.11 unabashedly acknowledges that the “Common Elements” would typically be part of
the Condominium but here, the Master Declaration has redefined those areas as “Shared Facilities”
for the specified purpose of circumventing the Condominium Act:
Inasmuch as the Condominium is just a portion of a Building, many components
which are typical "common elements" of a condominium have instead been
designated herein as part of the Shared Facilities of the Hotel Lot. No portion of
the Shared Facilities shall be deemed Common Elements hereunder.
Condominium Declaration, section 2.11. (Emphasis added).
35. The Master Declaration correspondingly provides:
“Lot" shall mean and refer to a portion of the Properties (as hereinafter defined)
which is designated as such in this Declaration or in a Supplemental Declaration
executed and recorded by the Declarant (and joined into by the Owner of such
parcel, if different from the Declarant). In the event that any Lot is submitted to the
condominium or cooperative form of ownership, it shall nevertheless be deemed a
single Lot hereunder, as more particularly described in Article 18 of this
Declaration. Initially, The Properties shall contain two (2) Lots - the "Hotel Lot"
and the "Condominium Lot,”- each of which is legally described on Exhibit ”D."
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Together, the improvements comprising the Hotel Lot and the Condominium Lot
have been, or shall be, constructed as to contain, among other things, a single
unified structure. Given the integration of the structure of the improvements; and
notwithstanding the legal descriptions contained on Exhibit “D” thereto, there is
necessity to share certain components of the Properties. Those shared
components shall be deemed to be the “Shared Facilities," which are defined in
greater detail in Section 1.1(bb) below.
Master Declaration, section 1.1(v) (Emphasis added).
36. The Master Declaration goes on to define the expansive “Shared Facilities”:
"Shared Facilities’ shall mean and refer to the following components of the
Properties (together with a license for reasonable pedestrian access thereto), which
are hereby deemed to be part of the Hotel Lot, whether or not contained within the
legal description of any other Lot now or hereafter submitted to this Declaration,
which are intended for use by and/or enjoyment of all of the Lot Owners (and their
guests, tenants and invitees), all subject to such regulation and restrictions as may
be imposed from time to time by the Hotel Lot Owner:
@) all sidewalks, walkways, loggia areas situated on the perimeter or
exterior of enclosed air-conditioned spaces contained in the
Structures,
(ii) the Master Life Safety Systems,
(iii) any perimeter and interior courtyards landscaping,
(iv) all patios, balconies, terraces and lanai patio areas,
(vy) the main lobby areas (serving all Lots),
(vi) all drives, paths and other areas serving all Lots,
(vii) all structural components of the improvements or air space
comprising any portion of the improvements, including, without
limitation, all exterior or atrium walls and all finishes and balconies,
terraces and/or facades attached or affixed thereto,
(viii) the roof and all roof trusses, roof support elements and roofing
insulation,
(ix) all utility, mechanical, electrical, telephonic, telecommunications,
plumbing and
(x) other systems serving all of the Lots, including, without limitation,
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all wires, conduits, pipes, ducts,
(xi) transformers, cables and other apparatus used in the delivery of the
utility, mechanical, ‘telephonic, telecommunications, electrical,
plumbing and/or other services,
(xii) all heating, ventilating, and air conditioning systems, serving all the
Lots including, without limitation, compressors, air handlers, ducts,
chillers, water towers and other
(xiii) apparatus used in the delivery of HVAC services, all elevator
shafts, elevator cabs, elevator cables and/ or systems and/or
equipment used in the operation of the elevators traversing and/or
serving all d the Lots,
(xiv) all trash rooms, trash chutes and any and all trash collection and/or
disposal systems serving all of the Lots,
(xv) the parking facilities located in the parking garage (as described more
fully in Section 4.4 below); and
(xvi) the pool and pool deck areas within The Properties; and
(xvii) the fitness center (as distinguished from the spa, which spa shall not
be deemed to be part of the Shared Facilities).
Master Declaration, section 1.1(bb).
37. To be sure, what remained for the Condominium Declaration to submit to the
condominium form of ownership was effectively limited to just “air rights” within a particular unit:
Submission Statement. Except as set forth in this Subsection 1.2, the Developer
hereby submits the Realty and all improvements erected or to be erected thereon
and all other property, real, personal or mixed, now or hereafter situated on or
within the Realty - but excluding (i) all public or private (e.g. cable television)
utility installations therein or thereon, (ii) the Shared Facilities (as defined in the
Master Covenants, as hereinafter defined), and (iii) all leased property therein or
thereon - to the condominium form of ownership and use in the manner provided
for in the Florida Condominium Acct as it exists on the date hereof and as it may be
hereafter renumbered. Without limiting any of the foregoing, no property, real,
personal or mixed, not located within or upon the Realty, and no portion of the
Shared Facilities, shall for any purposes be deemed part of the Condominium or
be subject to the jurisdiction of the Association, the operation and effect of the
Florida Condominium Act or any rules or regulations promulgated pursuant
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thereto, unless expressly provided. In furtherance of the foregoing, it is recognized
and agreed that the Realty consi ts primarily of air rights, and that no portion of
the Realty other than that described in Exhibit "1" attached hereto shall be
deemed part of the Condominium.
Condominium Declaration, section 1.2.
38. The Epic West Condominium (and, thereby, its unit owners) own little more than
“air rights” within the interior walls of their individual condominium units. For example,
condominium unit balconies are Shared Facilities, owned by the Hotel Lot Owner. Master
Declaration, section 4.6. Upon information and belief, the Condominium Association and its unit
owners also do not own the condominium hallways and condominium lobby. The unit owners own
only the finishes they have supplied and 100% paid for, such as tile or carpet on the floors and paint
on the walls while the Hotel Lot Owner owns the structural elements of the hallway floors (concrete)
and walls (drywall). Everything else is owned by the Hotel Lot Owner, either as part of the Hotel
or as one of the Shared Facilities.
39. As more particularly described above, the Master Declaration improperly redefined
the Shared Facilities to include parts of the property that, pursuant to the Act, are statutorily required
common elements to be owned by the Condominium Association and its unit owners.
40. Lest there be any doubt, the Master Declaration provides that the Master
Association governing the Epic West Tower was created with the express intent to elude the
provisions of the Condominium Act, notwithstanding the fact that a large portion of the property
consists of common elements:
Limitation on Master Association. Anything in this Declaration to the contrary
notwithstanding, the existence or exercise of any easement, right, power, authority,
privilege or duty of the Master Association as same pertains to any condominium
located within the Properties which would cause the Master Association to be
subject to Chapter 718, Florida Statutes, or any related administrative rules or
regulations, shall be null, void and of no effect to the extent, but only to the extent,
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that such existence or exercise is finally determined by a court or administrative
hearing officer of competent Jurisdiction (after all appellate rights have been
exercised or waived) to subject the Master Association to said Chapter 718. It is
the intent of this provision that the Master Association not be deemed to be a
condominium association, nor the Common Properties be deemed to be common
elements of any such condominium.
Master Declaration, section 19.12. (Emphasis added).
Al. The Master Declaration’s definition of “Common Properties” provides additional
reinforcement of this unlawful goal: “[t]he Properties have been developed and structured in such
a manner to minimize the Common Properties. Most components which are typical "common
properties" of a development of this nature have instead been designated herein as part of the
Shared Facilities.” Master Declaration, section 1.1(g).
42. As Judge Hanzman stated, a master declaration is illegal and void to the extent that
“it gives the Hotel Lot owner the right to own, control and assess for the cost of
operating/maintaining Shared Facilities that are “condominium property” which is not included
within the units, or otherwise “common elements” as defined by Chapter §718.108(1). (Carillon
at p. 29) The Master Declaration for the Epic West Tower does exactly what Judge Hanzman says
is prohibited by law.
43. By improperly redefining statutorily required common elements or common
properties as “Shared Facilities” and ignoring the statutory requirement that common elements
include “the portions of the condominium property which are not included within the units,” the
developer has given its successor, the Hotel Lot Owner, ownership over parts of the condominium
that must belong to the Condominium Association and its unit owners as a matter of law.
44. Other provisions in the two declarations engage in the same giveth and taketh away
paradigm by purporting compliance with the Act under certain provisions and undercutting that
compliance with other provisions. For instance, the Condominium Declaration’s definition of
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“Common Elements,” in section 2.11 referenced above, includes “[a]ny and all portions of the Life
Safety Systems (as hereinafter defined), regardless of where located within the Condominium
Property.” (Emphasis added) Under the Act, such Life Safety System throughout the
Condominium also should be a common element. See §718.108(1).
45. However, the definition of “Life Safety Systems" in section 2.25 of the
Condominium Declaration contradictorily gives ownership and control over the Life Safety
Systems to the Master Association. It states that Life Safety Systems:
mean and refer to any and all emergency lighting, audio and visual signals, safety
systems, sprinklers and smoke detection systems, which are now or hereafter
installed in the Building, whether or not within the Units. All such Life Safety
Systems, together with all conduits, wiring, electrical connections and systems
related thereto, regardless of where located, shall be deemed part of the Shared
Facilities of the Hotel Lot. Notwithstanding anything herein contained to the
contrary, any portion of the Life Safety Systems, as defined above, which serves
any other Lot governed by the Master Covenants and/or the Common Properties,
shall be deemed excluded from the Life Safety Systems hereunder, and be deemed
to be part of the "Master Life Safety Systems.
(Condo Declaration, section 2.25) (Emphasis added)
46. In addition to usurping control of the Shared Facilities, the Master Declaration
delegates to the Hotel Lot Owner the unbridled power to charge and to assess the Condominium
Association’s unit owner members for the cost of the Shared Facilities:
Maintenance. The Hotel Lot Owner shall maintain in good repair, and shall replace
as often as necessary, the Shared Facilities, all such work to be done as determined
and ordered by the Hotel Lot Owner. Each Owner, by acceptance of a deed or other
conveyance of any portion of The Properties, shall be deemed to have agreed that
the level of service and quality of maintenance and repair shall be commensurate,
in the opinion of the Hotel Lot Owner, with the quality of the hotel operation (if
any) being offered from the Hotel Lot, which may, without creating any obligation,
exceed that which would typically be performed at a purely residential project. All
work pursuant to this Section related to the foregoing shall be paid for through
assessments (either general or special) imposed in accordance herewith.
Master Declaration, section 17.2.
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"Assessments" shall mean and refer to the various forms of payment to the
Association and/or Hotel Lot Owner which are required to be made by Owners, as
more particularly described in Section 7.1 of this Declaration.
Master Declaration, section 1.1(b).
47. The Hotel Lot Owner assesses the Condominium Association’s unit owner
members for 50% for the management, operation, reserves, and insurance of the Shared Facilities.
The Condominium Association, however, has no control, input, or vote as to the manner or amount
of such expenditures. The Master Association, which is controlled by the Hotel Lot Owner, has
full discretion to determine what maintenance or capital improvements to perform - or not to
perform - on the Shared Facilities, much of which, again, would typically be deemed the common
elements of the Condominium and would be under the Condominium Association’s control:
Assessment to Hotel Lot Owner; Lien. Declarant (and each party joining in any
Supplemental Declaration), as the initial owner of all of the Lots, hereby covenants
and agrees, and each owner of a Lot (including, without limitation, a Unit Owner)
or any portion thereof, by acceptance of a deed therefor or other conveyance
thereof, whether or not it shall be so expressed in such deed or other conveyance,
shall be deemed to covenant and agree, to pay to the Hotel Lot Owner annual
assessments and charges for the operation and insurance of, and for payment of
expenses (and real estate and personal property taxes) allocated or assessed to or
through the Hotel Lot Owner, of and/or for the maintenance, management,
operation and insurance of the Shared Facilities, the establishment of reasonable
reserves for the replacement of same, capital improvement assessments, special
assessments and all other charges and as: sments hereinafter referred to or
imposed by the Hotel Lot Owner in connection with the repair, replacement,
improvement, maintenance, management, operation and insurance of, and taxes
on, the Shared Facilities, all such assessments to be fixed, established and
collected from time to time as herein provided. Without limiting the generality of
the foregoing, any and all costs, allocations of financial obligations burdening The
Properties pursuant to the Easement Agreement, shall be deemed costs of operating
and maintaining the Shared Facilities, to be assessed against each of the Lot Owners
as herein provided and any and all costs incurred in financing insurance premiums
shall be deemed part of the costs of insuring the Shared Facilities to be assessed
against each of the Lot Owners as herein provided. The annual assessment, capital
improvement assessment and special ass sment, together with such interest
thereon and costs of collection thereof as hereinafter provided, shall be a charge
on the Condominium Lot and shall be a continuing lien upon the Condominium
Lot and upon all improvements thereon, from time to time existing...
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With respect to the Shared Facilities, the Condominium Lot shall be assessed fifty
percent (50%) of the total estimated charges and expenses for the repair,
replacement, improvement, betterment, maintenance, management, operation,
alteration, relocation and/or Insurance of, reserves (if determined to be maintained
in the sole discretion of the Hotel Lot Owner) for, and taxes on, the Shared
Facilities, with the balance of such expenses to be borne by the Hotel Lot Owner.
Master Declaration, section 17.4. (Emphasis added).
48. Because the Hotel Lot Owner can also lien any unit for nonpayment of the
Assessments, the Hotel Lot Owner is akin to a dictator that operates not just without consideration
for the views of the Condominium, but also without transparency. The Hotel has not produced all
the financial records requested by the Condominium.
49. Even more egregious, the Master Declaration grants the Hotel Lot Owner the power
to remove or add portions of the property from the “Shared Facilities” designation in its sole
discretion. The effect is that the Hotel Lot Owner can unilaterally, and without the Condominium
Association’s consent, reduce or shift expenses from itself to the Condominium Association by
simply redefining the Shared Facilities as a “Condominium only” expense or reclassifying a “Hotel
only” expense as attributable to the Shared Facilities:
The Declarant shall have the right (but not the obligation), by Supplemental
Declaration executed by Declarant and the Hotel Lot Owner to supplement the
Shared Facilities by adding additional facilities or to designate additional portions
of the Project as Shared Facilities hereunder (or redesignate any portion of same).
Notwithstanding the designation of the Shared Facilities, Declarant (together with
the Hotel Lot Owner) shall have the right, from time to time, to expand, alter,
relocate and or eliminate the Shared Facilities, or any portion thereof, without'
requiring the consent or approval of the Association, any other Owner, any
Neighborhood Association or any member thereof including, without limitation,
any and all owners or mortgagees of the condominium units established within the
Condominium Lot). In furtherance of the foregoing, Declarant also reserves the
absolute right at any time, and from time to time, to construct additional facilities
upon or adjacent thereto and to determine whether same shall be deemed Shared
Facilities. Without limiting the generality of Section 12, in the event that the
Hotel Lot Owner determines that a particular portion of the Properties is or is not
Shared Facilities, such determination shall be binding and conclusive.
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 17
Condo Declaration, section 1.1(bb). (Emphasis added).
50. A “Hotel only” charge is paid 100% by the Hotel. Ifthe Hotel re-defines that charge
as pertaining to the Shared Facilities, then the Hotel only pays 50% of the charge and the
Condominium must pay 50% even though that charge does not benefit the Condominium.
S51. The Hotel Lot Owner has also abused its rights under the Master Declaration by
improperly recharacterizing some of the Shared Facilities as “Condominium only” property. The
result is that, instead of sharing such Shared Facilities expense 50/50, the Condominium
Association now is improperly charged 100% and the Hotel Lot Owner pays nothing.
§2. For example, the Hotel Lot Owner has been charging the Condominium Association
for 100% of the heating, ventilation, air conditioning (HVAC) expenses, including the replacement
of one of the Roof Top Units (RTU-3), major rotating assembly replacements for two cooling
towers, and (RTU-1 and RTU-2) compressor replacements.
53. The Hotel Lot imposed the full amount of these charges on the Condominium
Association even though the HVAC is clearly defined by the Master Declaration as one of the
Shared Facilities, as the air conditioning system services both the Hotel Lot and the Condominium
Lot. Master Declaration, section 1.1(bb).
54. The Hotel Lot Owner should have paid 50% of several HVAC related costs,
including but not limited to RTU compressors, cooling tower fan assemblies, and RTU-3 system
replacement costs because the Hotel benefits from the HVAC; instead, the Hotel Lot Owner forced
the Condominium Association to bear the full expense. This was illegal.
55. The Shared Facilities designation is also wrongly applied to areas that are purely
Hotel property (“Hotel only”) so that the Hotel can charge the Condominium for 50% of the
Hotel’s expenses. For instance, the Hotel’s administrative “back of the house,” located on the
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 18
second floor of the Epic West Tower, is predominantly for Hotel use, but the Hotel Lot Owner
charges 50% of the back of the house expenses to the Condominium Association and its unit
owners.
56. The Hotel's administrative offices are located in the Hotel’s back of house. But
because the Condominium Association’s small management office also happens to be located in
that area, the Hotel Lot Owner treats the whole back of house as one of the “Shared Facilities,”
even though according to the Master Declaration, the Hotel back of the house area is not a Shared
Facility. In this manner, the Hotel Lot Owner improperly charges the Condominium Association
50% of the cost of operating the entire space.
57. Similarly, while the Condominium Association and its unit owners pay 100% of
the costs for the Condominium Lobby, they also pay 50% of the costs for the Hotel’s Lobby
because the Hotel Lobby is one of the “Shared Facilities” under the Master Declaration. The Hotel
has charged the Condominium Association numerous times for 50% of the costs of décor and
renovation for the Hotel Lobby as a Shared Facility but has never paid any monies toward the
refurbishing of the Condominium Lobby, also designated as a Shared Facility under the Master
Declaration. The Hotel treats the Hotel Lobby as a shared expense to defray its own costs and the
Condominium Lobby as a “Condo Only” expense to avoid contributing any costs.
58. The Condominium Association is forced to subsidize 50% of the cost of the Hotel
Lobby, even though the Hotel Lobby gets far more wear and tear than the Condominium Lobby,
and even though the Hotel’s guests’ use of the Hotel Lobby is disproportionate to the
Condominium Association’s unit owners’ use, and even though the Hotel Lot Owner does not
contribute a penny to the costs of the Condominium Lobby. This is one of many examples of the
Hotel’s collecting assessments and/or reserves for capital improvements from the Association and
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 19
spending those monies only on the Hotel and not the Condominium Association. The Hotel’s
refurbishment of the Hotel pool furniture several times without any corresponding refurbishment
of the Condominium Association’s pools even one time is another example.
59. The Hotel Lot Owner’s conduct —improperly transferring expenses from itself to
the Condominium Association using the authoritarian powers bestowed upon it by the Master
Declaration—is illegal under Florida law and the Condominium Act.
60. The Master Declaration also authorizes the Hotel Lot Owner to unilaterally
determine the annual budget for the Shared Facilities expenses and to charge the Condominium
Association and its unit owners accordingly.
61. The Condominium Association and its unit owners have no right to participate in
the Hotel Lot Owner’s budgeting decisions:
The Hotel Lot Owner shall budget and adopt assessments for the Hotel Lot Owner's
general expenses for repair, operation, maintenance, improvement, betterment,
replacement, insurance, alteration or relocation of, and taxes on the Shared
Facilities (and :the establishment of reserves thereof at the election of the Hotel Lot
Owner) based, in part, upon Hotel Lot Owner's reasonable projections of the
lintensity of use of the Shared Facilities for the period subject to the budget...
The assessment amount (and applicable installments) may be changed at any
time by the Hotel lot Owner from that originally stipulated or from any other
assessment that is in the future adopted by the Hotel lot Owner...
Master Declaration, section 17.4. (Emphasis added)
62. Regarding insurance specifically, section 13.2(b) of the Master Declaration
provides that the Hotel Lot Owner shall be the only “named insured” on any insurance policies for
the Shared Facilities and that the Condominium Association has the unequal status of an
“additional insured.” This is the case even though the Condominium Association shares equally
in the premium. And, as illustrated further below, the Condominium Association actually pays in
excess of its fair share of the premium.
Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al.
Complaint, Page 20
63. In the event of a payout of claims by the insurer regarding Shared Facilities, section
13.2(b) of the Master Declaration authorizes the Hotel Lot Owner to receive the insurance
proceeds. Section 13.8 appoints the Hotel Lot Owner as agent and attorney-in-fact for the
Condominium Association to adjust any claims unilaterally even though, again, the Condominium
pays (at least) half the premium.
64. The Hotel Lot Owner’s grossly one-sided power is exacerbated by the Hotel Lot
Owner’s failures to operate, maintain, and repair the entire Epic West Tower to the standards
required by the Master Declaration and anticipated by the residents of this luxury building.
65.
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Filing # 197782658 E-Filed 05/07/2024 01:07:33 PM IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA EPIC WEST CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Plaintiff, CASE NO. 2024- vs. EPIC HOTEL, LLC, a Florida limited liability company, and EPIC WEST TOWER MASTER ASSOCIATION, INC., a Florida limited liability company, Defendants. / COMPLAINT Plaintiff, EPIC WEST CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, acting on its own behalf and on behalf of its unit owner members, sues Defendants EPIC HOTEL, LLC, a Florida limited liability company, and EPIC WEST TOWER MASTER ASSOCIATION, INC., a Florida limited liability company, and in support, states as follows: JURISDICTION AND VENUE 1 This is an action for reformation, declaratory, equitable, and injunctive relief, and for damages challenging the legality of a master declaration under the Florida Condominium Act and for overcharges and wrongful assessments in excess of $75,000 exclusive of interest, attorney’s fees, and costs within the jurisdiction of this court pursuant to Fla. Stat. §26.012. 2 The subject property of this action is the Epic West Tower, a mixed-use hotel/condominium tower in Downtown Miami comprised of a 415-room luxury hotel and 342 condominium residences (“Epic West Tower”). 3 Plaintiff, the Epic West Condominium Association, Inc. (hereinafter, the Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 2 “Condominium Association”), is a not-for-profit corporation located in Miami-Dade County, Florida. Plaintiff is a condominium association organized pursuant to the provisions of Chapter 718, Florida Statutes (the “Condominium Act” or the “Act”), which governs the Epic West Condominium (“Condominium”) located within the Epic West Tower at 200 Biscayne Boulevard Way, Miami, Florida. The Epic West Condominium was established as a condominium by the recording of its Declaration of Condominium on December 12, 2008 in Official Records Book 26683 at Page 3040, of the Public Records of Miami-Dade County, Florida (“Condominium Declaration”). A copy of the Condominium Declaration is attached hereto as Exhibit A. 4 Defendant, Epic Hotel, LLC (the “Hotel Lot Owner” or “Defendant”) is a Florida limited liability company which, as more particularly set forth in the Master Declaration (defined below), owns the hotel component (“Hotel”) located at the Epic West Tower and purports to own, manage, and control the “Shared Facilities” as defined by the Master Declaration. 5 Defendant, Epic West Tower Master Association, Inc., is a Florida limited liability company (“Master Association” or “Defendant”), that was created by the recording of the Declaration of Covenants, Restrictions and Easements for the Epic West Tower (the “Master Declaration”) in the Official Records Book 26683 at Page 2853 of the Public Records of Miami- Dade County, Florida. A copy of the Master Declaration is attached hereto as Exhibit B. The Master Association governs the interrelationship between the Condominium Association and the Hotel Lot Owner at the Epic West Tower and effectuates the provisions of the Master Declaration. As stated in the Articles of Incorporation for the Master Association, the “objects and purposes of the [Master] Association are those objects and purposes as are authorized by [the Master Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 3 Declaration].”! (Master Articles, Art. III). 6. The court has personal jurisdiction over Defendants because they transact and conduct business and committed the breach of contract and tortious acts that are the subject of this case in Miami-Dade County, Florida. 7 Venue is proper in Miami-Dade County, Florida because the property at issue, the Epic West Tower, is located in Miami-Dade County, Florida, and the causes of action alleged herein accrued in Miami-Dade County, Florida. 8 The Condominium Association brings this action pursuant to Fla. Stat. §718.111 and Fla. R. Civ. P. 1.221 in its own right and as the lawful representative of its unit owner members. 9 The causes of action herein concern matters of common interest to the Condominium Association’s unit owners, which matters include, but are not limited to, the governing documents relating to the Condominium Association, including the Condominium Declaration and the Master Declaration, the operation of the Condominium Association as a condominium in connection with the Hotel Lot Owner and the Master Association, and the assessments imposed against all Condominium unit owners. 10. All conditions precedent to the commencement of this action have been satisfied, performed, are futile, or have been waived. 11. As a direct and proximate cause of the foregoing, the Condominium Association has retained the undersigned law firm and has agreed and is obligated to pay the Condominium ' Paul Willingham and Richard Ortoli are board members of both Plaintiff, the Epic West Condominium Association, Inc. and Defendant Epic West Tower Master Association, Inc. Because of the voting structure of the Defendant Master Association, which gives eternal control to the Defendant Epic Hotel, LLC as the Hotel Lot Owner, Willingham and Ortoli’s votes cannot overcome the Hotel’s majority on the Master Association Board. The actions of the Master Board are not to be attributed to the actions of Willingham and Ortoli for that reason. Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 4 Association’s reasonable attorney’s fees for the undersigned law firm’s services. BACKGROUND The Florida Condominium Act 12. Section 718.201(2) of the Act states that its purpose is “to establish procedures for the creation, sale, and operation of condominiums.” 13. Section 718.104 of the Act states that “[e]very condominium created and existing in this state shall be subject to the provisions of this chapter.” 14. Section 718.104(2) of the Act requires that a condominium’s declaration identify the precise property being submitted into the condominium form of ownership. 15. A condominium declaration must identify “[t]he undivided share of ownership of the common elements and common surplus of the condominium that is appurtenant to each unit stated as a percentage or a fraction of the whole” and specify “the ownership share of the common elements assigned to each resident unit...based either upon the total square footage of each residential unit in uniform relationship to the total square footage of each other residential unit in the condominium or on an equal fractional basis.” §718.104(4)(f), Fla. Stat. 16. The Act states that each unit shall: (a) “own [a]n undivided share in the common elements and common surplus” and (b) enjoy “the exclusive right to use and enjoy all common elements” in accordance with their intended purposes. §§718.106(2) and (3), Fla. Stat. 17. The Act declares that each unit owner’s undivided share of the common elements “shall not be separated from [the unit] and shall pass with the title to the unit.” §718.107, Fla. Stat. 18. Section 718.108(1) of the Act mandates that “common elements” include: (a) The condominium property which is not included within the units; (b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 5 elements; (c) An easement of support in every portion of a unit which contributes to the support of a building; and (d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements. (Emphasis added). The Act does not list any exceptions. 19. The Act dictates that “[t]he operation of the condominium shall be by the association...,” dispelling any notion that anyone other than the condominium unit owners, through their condominium association, can operate condominium property. §718.111(1)(a), Fla. Stat. 20. When these provisions are read together, the Act decrees that condominium property must be owned and operated by the unit owners, through their condominium association. 21. The Act further mandates that if facilities, amenities, or components serving a condominium meet the statutory definition of “common elements,” then they must be owned and operated collectively by the unit owners through their condominium association. 22. Epic West Tower is not exempt from the Act merely because it is a mixed-use building, containing both condominium units and a hotel. 23. A developer or its successor cannot circumvent the requirements of the Act by improperly reclassifying common elements as “Shared Facilities,” “Shared Components,” or any other nomenclature. More specifically, a hotel developer cannot strategically avoid submitting to the “condominium form of ownership” parts of the property that the Act requires to be common elements and thereby evade the Act on grounds that the property is not “association or condominium property.” But that is exactly what the developer, and subsequently, the Hotel Lot Owner have sought to do at Epic West Tower, in violation of the Florida Condominium Act. Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 6 24. In his Order Granting Summary Judgment in Central Carillon Condominium Beach Association, Inc. v. Carillon Hotel, LLC, et al., Case No. 2016-011172-CA-01 (Jan. 30, 2023), (hereinafter “Carillon”), Judge Michael Hanzman explained that “[E]mbedded throughout Chapter 718 is an unambiguous legislative edict: condominium property, including common elements, is to be owned and controlled by all unit owners, and control over such property must be exercised democratically.” Carillon at p. 23 (citing White Egret Condo., Inc. v. Franklin, 379 So. 2d 346, 350 (Fla. 1979)). Common elements are “the portions of the condominium property not included in the units.” Fla. Stat. § 718.103(8). (Emphasis added). “The Act makes no exception for condominiums located within, and a part of, a ‘mixed-use development.’” Carillon at p. 24. 25. Judge Bailey, Judge Hanzman’s successor, entered a Final Judgment that confirmed Judge Hanzman’s summary judgment ruling and ordered the following parts of the Carillon property, which constituted common elements, be transferred to the condominium association within 90 days: (a) utility, mechanical, electrical, telephonic, telecommunications, plumbing and other systems; utility, mechanical, electrical, telephonic, telecommunications, plumbing and other systems; (b) heating, ventilating and air conditioning systems; (c) trash rooms, trash systems, and trash chutes; (d) structural components of the improvements and/or air space, exterior walls, exterior glass surfaces, finishes and balconies, terraces and/or facades attached or affixed thereto; (e) roofs, all roof trusses, roof support elements and roofing insulation; elevators, elevator shafts, elevator cabs, elevator cables and/or systems and/or equipment used in the operation ofthe elevators; (f) life safety systems including all gates, doors, fencing, the perimeter of the property, and any points of entry onto the property; (g) lawns, landscaping; Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 7 (h) street and exterior lighting fixtures, installations and equipment; @) sidewalks, alleyways, drives, pedestrian and vehicular ingress and egress; G) lobbies, receptions, hallways, landings, vestibules; (k) rooms, offices, meeting rooms, bathrooms, closets, and other spaces associated with operating or maintaining Association properties or any of the foregoing facilities; @) easements in favor of the Hotel Lot Owner or any of North Carillon Beach Condominium Association, Inc., Central Carillon Beach Condominium Association, Inc., or South Carillon Beach Condominium Association, Inc. under Master Declaration; (m) and easements through units for conduits, ducts, plumbing, wiring, and other facilities associated with the foregoing, easements of support in every portion of unit contributing to any of the foregoing, and property and installations required for the furnishing of the foregoing; 26. Under well-settled Florida law, a developer may not use a master association to circumvent the protections of the Act. Downey v. Jungle Den Villas Recreation Ass'n, Inc., 525 So. 2d 438, 441 (Fla. Sth DCA 1988) (“The legislative intent of the requirement in section 718.110(4) of unanimous approval of any material alteration or modification of the appurtenances to a condominium unit should not be vulnerable to circumvention by the simple act of setting up an ostensibly independent corporation empowered to perform some of the functions of a condominium association but without the unit owner protection provided by chapter 718, Florida Statutes”); Carillon; IconBrickell Condo. No. Three Ass'n, Inc. v. New Media Consulting, LLC, 310 So. 3d 477, 481 (Fla. 3d DCA 2020); (Order Granting Motion for Judgment on the Pleadings, D&J South Beach Investments, LLC v. De Soleil South Beach Residential Condominium Association, Inc., Case No. 2021-027604-CA-44 (Oct. 24, 2022)). 27. Defendants cannot lawfully turn fee simple unit owners into individuals who simply “live in [their] hotel” and “have no more rights ‘than would a transient hotel room occupant Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 8 have over the hotel in which they book a room. oo Carillon at p. 3. To hold otherwise would allow Defendants to “circumvent the statutory protections afforded by the Act by simply placing condominium associations under the umbrella of a master association and using that master association to grant a commercial operator complete ownership of, and control over, property the Legislature has said must be owned/controlled by unit owners, would neuter Chapter 718 and render its protections anemic.” Carillon at p. 28. The Interrelationship Between the Condominium Declaration and the Master Declaration 28. The Condominium Declaration expressly and accurately provides that the Epic West Condominium is a condominium “governed by the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof and as it may be renumbered.” Condominium Declaration, sections 1.2 and 2.2. 29. Thus, the applicable Condominium Act that governs the Epic West Condominium and the Condominium Association is as it existed on December 12, 2008 (the date of the Condominium Association’s creation) and as the Act may be renumbered, not as the Condominium Act has subsequently been amended. 30. According to the Master Declaration, the Condominium Association and the Hotel Lot Owner each own a “Lot” within the Epic West Tower. The two Lots are defined as the “Condominium Lot” and the “Hotel Lot.” 31. The Condominium Declaration was drafted by the same author as the Master Declaration. 32. The two declarations dovetail so that, notwithstanding the express intent for the Condominium Lot to be a condominium and to conform to the Act; and, while the Condominium Declaration purports to submit certain realty and improvements to the condominium form of Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 9 ownership, the Condominium Declaration simultaneously carves out almost all of the property that services the Condominium (which property is then improperly redefined as the “Shared Facilities” of the Master Declaration). 33. The Condominium Declaration defines the “common elements” a: (a) The portions of the condominium Property which are not included in the units. (b) An easement of support in every portion of a Unit which contributes to the support of the Building. (c) Any and all portions of the Life Safety Systems (as hereinafter defined), regardless of where located within the Condominium Property. (d) Any other parts of the Condominium designated as Common Elements in this Declaration. Condominium Declaration, section 2.11. (Emphasis added). 34. While this definition ostensibly attempts to track the definition of “common elements” in section 718.108, Fla. Stat., cited supra, the rest of the Condominium Declaration’s section 2.11 unabashedly acknowledges that the “Common Elements” would typically be part of the Condominium but here, the Master Declaration has redefined those areas as “Shared Facilities” for the specified purpose of circumventing the Condominium Act: Inasmuch as the Condominium is just a portion of a Building, many components which are typical "common elements" of a condominium have instead been designated herein as part of the Shared Facilities of the Hotel Lot. No portion of the Shared Facilities shall be deemed Common Elements hereunder. Condominium Declaration, section 2.11. (Emphasis added). 35. The Master Declaration correspondingly provides: “Lot" shall mean and refer to a portion of the Properties (as hereinafter defined) which is designated as such in this Declaration or in a Supplemental Declaration executed and recorded by the Declarant (and joined into by the Owner of such parcel, if different from the Declarant). In the event that any Lot is submitted to the condominium or cooperative form of ownership, it shall nevertheless be deemed a single Lot hereunder, as more particularly described in Article 18 of this Declaration. Initially, The Properties shall contain two (2) Lots - the "Hotel Lot" and the "Condominium Lot,”- each of which is legally described on Exhibit ”D." Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 10 Together, the improvements comprising the Hotel Lot and the Condominium Lot have been, or shall be, constructed as to contain, among other things, a single unified structure. Given the integration of the structure of the improvements; and notwithstanding the legal descriptions contained on Exhibit “D” thereto, there is necessity to share certain components of the Properties. Those shared components shall be deemed to be the “Shared Facilities," which are defined in greater detail in Section 1.1(bb) below. Master Declaration, section 1.1(v) (Emphasis added). 36. The Master Declaration goes on to define the expansive “Shared Facilities”: "Shared Facilities’ shall mean and refer to the following components of the Properties (together with a license for reasonable pedestrian access thereto), which are hereby deemed to be part of the Hotel Lot, whether or not contained within the legal description of any other Lot now or hereafter submitted to this Declaration, which are intended for use by and/or enjoyment of all of the Lot Owners (and their guests, tenants and invitees), all subject to such regulation and restrictions as may be imposed from time to time by the Hotel Lot Owner: @) all sidewalks, walkways, loggia areas situated on the perimeter or exterior of enclosed air-conditioned spaces contained in the Structures, (ii) the Master Life Safety Systems, (iii) any perimeter and interior courtyards landscaping, (iv) all patios, balconies, terraces and lanai patio areas, (vy) the main lobby areas (serving all Lots), (vi) all drives, paths and other areas serving all Lots, (vii) all structural components of the improvements or air space comprising any portion of the improvements, including, without limitation, all exterior or atrium walls and all finishes and balconies, terraces and/or facades attached or affixed thereto, (viii) the roof and all roof trusses, roof support elements and roofing insulation, (ix) all utility, mechanical, electrical, telephonic, telecommunications, plumbing and (x) other systems serving all of the Lots, including, without limitation, Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 11 all wires, conduits, pipes, ducts, (xi) transformers, cables and other apparatus used in the delivery of the utility, mechanical, ‘telephonic, telecommunications, electrical, plumbing and/or other services, (xii) all heating, ventilating, and air conditioning systems, serving all the Lots including, without limitation, compressors, air handlers, ducts, chillers, water towers and other (xiii) apparatus used in the delivery of HVAC services, all elevator shafts, elevator cabs, elevator cables and/ or systems and/or equipment used in the operation of the elevators traversing and/or serving all d the Lots, (xiv) all trash rooms, trash chutes and any and all trash collection and/or disposal systems serving all of the Lots, (xv) the parking facilities located in the parking garage (as described more fully in Section 4.4 below); and (xvi) the pool and pool deck areas within The Properties; and (xvii) the fitness center (as distinguished from the spa, which spa shall not be deemed to be part of the Shared Facilities). Master Declaration, section 1.1(bb). 37. To be sure, what remained for the Condominium Declaration to submit to the condominium form of ownership was effectively limited to just “air rights” within a particular unit: Submission Statement. Except as set forth in this Subsection 1.2, the Developer hereby submits the Realty and all improvements erected or to be erected thereon and all other property, real, personal or mixed, now or hereafter situated on or within the Realty - but excluding (i) all public or private (e.g. cable television) utility installations therein or thereon, (ii) the Shared Facilities (as defined in the Master Covenants, as hereinafter defined), and (iii) all leased property therein or thereon - to the condominium form of ownership and use in the manner provided for in the Florida Condominium Acct as it exists on the date hereof and as it may be hereafter renumbered. Without limiting any of the foregoing, no property, real, personal or mixed, not located within or upon the Realty, and no portion of the Shared Facilities, shall for any purposes be deemed part of the Condominium or be subject to the jurisdiction of the Association, the operation and effect of the Florida Condominium Act or any rules or regulations promulgated pursuant Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 12 thereto, unless expressly provided. In furtherance of the foregoing, it is recognized and agreed that the Realty consi ts primarily of air rights, and that no portion of the Realty other than that described in Exhibit "1" attached hereto shall be deemed part of the Condominium. Condominium Declaration, section 1.2. 38. The Epic West Condominium (and, thereby, its unit owners) own little more than “air rights” within the interior walls of their individual condominium units. For example, condominium unit balconies are Shared Facilities, owned by the Hotel Lot Owner. Master Declaration, section 4.6. Upon information and belief, the Condominium Association and its unit owners also do not own the condominium hallways and condominium lobby. The unit owners own only the finishes they have supplied and 100% paid for, such as tile or carpet on the floors and paint on the walls while the Hotel Lot Owner owns the structural elements of the hallway floors (concrete) and walls (drywall). Everything else is owned by the Hotel Lot Owner, either as part of the Hotel or as one of the Shared Facilities. 39. As more particularly described above, the Master Declaration improperly redefined the Shared Facilities to include parts of the property that, pursuant to the Act, are statutorily required common elements to be owned by the Condominium Association and its unit owners. 40. Lest there be any doubt, the Master Declaration provides that the Master Association governing the Epic West Tower was created with the express intent to elude the provisions of the Condominium Act, notwithstanding the fact that a large portion of the property consists of common elements: Limitation on Master Association. Anything in this Declaration to the contrary notwithstanding, the existence or exercise of any easement, right, power, authority, privilege or duty of the Master Association as same pertains to any condominium located within the Properties which would cause the Master Association to be subject to Chapter 718, Florida Statutes, or any related administrative rules or regulations, shall be null, void and of no effect to the extent, but only to the extent, Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 13 that such existence or exercise is finally determined by a court or administrative hearing officer of competent Jurisdiction (after all appellate rights have been exercised or waived) to subject the Master Association to said Chapter 718. It is the intent of this provision that the Master Association not be deemed to be a condominium association, nor the Common Properties be deemed to be common elements of any such condominium. Master Declaration, section 19.12. (Emphasis added). Al. The Master Declaration’s definition of “Common Properties” provides additional reinforcement of this unlawful goal: “[t]he Properties have been developed and structured in such a manner to minimize the Common Properties. Most components which are typical "common properties" of a development of this nature have instead been designated herein as part of the Shared Facilities.” Master Declaration, section 1.1(g). 42. As Judge Hanzman stated, a master declaration is illegal and void to the extent that “it gives the Hotel Lot owner the right to own, control and assess for the cost of operating/maintaining Shared Facilities that are “condominium property” which is not included within the units, or otherwise “common elements” as defined by Chapter §718.108(1). (Carillon at p. 29) The Master Declaration for the Epic West Tower does exactly what Judge Hanzman says is prohibited by law. 43. By improperly redefining statutorily required common elements or common properties as “Shared Facilities” and ignoring the statutory requirement that common elements include “the portions of the condominium property which are not included within the units,” the developer has given its successor, the Hotel Lot Owner, ownership over parts of the condominium that must belong to the Condominium Association and its unit owners as a matter of law. 44. Other provisions in the two declarations engage in the same giveth and taketh away paradigm by purporting compliance with the Act under certain provisions and undercutting that compliance with other provisions. For instance, the Condominium Declaration’s definition of Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 14 “Common Elements,” in section 2.11 referenced above, includes “[a]ny and all portions of the Life Safety Systems (as hereinafter defined), regardless of where located within the Condominium Property.” (Emphasis added) Under the Act, such Life Safety System throughout the Condominium also should be a common element. See §718.108(1). 45. However, the definition of “Life Safety Systems" in section 2.25 of the Condominium Declaration contradictorily gives ownership and control over the Life Safety Systems to the Master Association. It states that Life Safety Systems: mean and refer to any and all emergency lighting, audio and visual signals, safety systems, sprinklers and smoke detection systems, which are now or hereafter installed in the Building, whether or not within the Units. All such Life Safety Systems, together with all conduits, wiring, electrical connections and systems related thereto, regardless of where located, shall be deemed part of the Shared Facilities of the Hotel Lot. Notwithstanding anything herein contained to the contrary, any portion of the Life Safety Systems, as defined above, which serves any other Lot governed by the Master Covenants and/or the Common Properties, shall be deemed excluded from the Life Safety Systems hereunder, and be deemed to be part of the "Master Life Safety Systems. (Condo Declaration, section 2.25) (Emphasis added) 46. In addition to usurping control of the Shared Facilities, the Master Declaration delegates to the Hotel Lot Owner the unbridled power to charge and to assess the Condominium Association’s unit owner members for the cost of the Shared Facilities: Maintenance. The Hotel Lot Owner shall maintain in good repair, and shall replace as often as necessary, the Shared Facilities, all such work to be done as determined and ordered by the Hotel Lot Owner. Each Owner, by acceptance of a deed or other conveyance of any portion of The Properties, shall be deemed to have agreed that the level of service and quality of maintenance and repair shall be commensurate, in the opinion of the Hotel Lot Owner, with the quality of the hotel operation (if any) being offered from the Hotel Lot, which may, without creating any obligation, exceed that which would typically be performed at a purely residential project. All work pursuant to this Section related to the foregoing shall be paid for through assessments (either general or special) imposed in accordance herewith. Master Declaration, section 17.2. Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 15 "Assessments" shall mean and refer to the various forms of payment to the Association and/or Hotel Lot Owner which are required to be made by Owners, as more particularly described in Section 7.1 of this Declaration. Master Declaration, section 1.1(b). 47. The Hotel Lot Owner assesses the Condominium Association’s unit owner members for 50% for the management, operation, reserves, and insurance of the Shared Facilities. The Condominium Association, however, has no control, input, or vote as to the manner or amount of such expenditures. The Master Association, which is controlled by the Hotel Lot Owner, has full discretion to determine what maintenance or capital improvements to perform - or not to perform - on the Shared Facilities, much of which, again, would typically be deemed the common elements of the Condominium and would be under the Condominium Association’s control: Assessment to Hotel Lot Owner; Lien. Declarant (and each party joining in any Supplemental Declaration), as the initial owner of all of the Lots, hereby covenants and agrees, and each owner of a Lot (including, without limitation, a Unit Owner) or any portion thereof, by acceptance of a deed therefor or other conveyance thereof, whether or not it shall be so expressed in such deed or other conveyance, shall be deemed to covenant and agree, to pay to the Hotel Lot Owner annual assessments and charges for the operation and insurance of, and for payment of expenses (and real estate and personal property taxes) allocated or assessed to or through the Hotel Lot Owner, of and/or for the maintenance, management, operation and insurance of the Shared Facilities, the establishment of reasonable reserves for the replacement of same, capital improvement assessments, special assessments and all other charges and as: sments hereinafter referred to or imposed by the Hotel Lot Owner in connection with the repair, replacement, improvement, maintenance, management, operation and insurance of, and taxes on, the Shared Facilities, all such assessments to be fixed, established and collected from time to time as herein provided. Without limiting the generality of the foregoing, any and all costs, allocations of financial obligations burdening The Properties pursuant to the Easement Agreement, shall be deemed costs of operating and maintaining the Shared Facilities, to be assessed against each of the Lot Owners as herein provided and any and all costs incurred in financing insurance premiums shall be deemed part of the costs of insuring the Shared Facilities to be assessed against each of the Lot Owners as herein provided. The annual assessment, capital improvement assessment and special ass sment, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the Condominium Lot and shall be a continuing lien upon the Condominium Lot and upon all improvements thereon, from time to time existing... Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 16 With respect to the Shared Facilities, the Condominium Lot shall be assessed fifty percent (50%) of the total estimated charges and expenses for the repair, replacement, improvement, betterment, maintenance, management, operation, alteration, relocation and/or Insurance of, reserves (if determined to be maintained in the sole discretion of the Hotel Lot Owner) for, and taxes on, the Shared Facilities, with the balance of such expenses to be borne by the Hotel Lot Owner. Master Declaration, section 17.4. (Emphasis added). 48. Because the Hotel Lot Owner can also lien any unit for nonpayment of the Assessments, the Hotel Lot Owner is akin to a dictator that operates not just without consideration for the views of the Condominium, but also without transparency. The Hotel has not produced all the financial records requested by the Condominium. 49. Even more egregious, the Master Declaration grants the Hotel Lot Owner the power to remove or add portions of the property from the “Shared Facilities” designation in its sole discretion. The effect is that the Hotel Lot Owner can unilaterally, and without the Condominium Association’s consent, reduce or shift expenses from itself to the Condominium Association by simply redefining the Shared Facilities as a “Condominium only” expense or reclassifying a “Hotel only” expense as attributable to the Shared Facilities: The Declarant shall have the right (but not the obligation), by Supplemental Declaration executed by Declarant and the Hotel Lot Owner to supplement the Shared Facilities by adding additional facilities or to designate additional portions of the Project as Shared Facilities hereunder (or redesignate any portion of same). Notwithstanding the designation of the Shared Facilities, Declarant (together with the Hotel Lot Owner) shall have the right, from time to time, to expand, alter, relocate and or eliminate the Shared Facilities, or any portion thereof, without' requiring the consent or approval of the Association, any other Owner, any Neighborhood Association or any member thereof including, without limitation, any and all owners or mortgagees of the condominium units established within the Condominium Lot). In furtherance of the foregoing, Declarant also reserves the absolute right at any time, and from time to time, to construct additional facilities upon or adjacent thereto and to determine whether same shall be deemed Shared Facilities. Without limiting the generality of Section 12, in the event that the Hotel Lot Owner determines that a particular portion of the Properties is or is not Shared Facilities, such determination shall be binding and conclusive. Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 17 Condo Declaration, section 1.1(bb). (Emphasis added). 50. A “Hotel only” charge is paid 100% by the Hotel. Ifthe Hotel re-defines that charge as pertaining to the Shared Facilities, then the Hotel only pays 50% of the charge and the Condominium must pay 50% even though that charge does not benefit the Condominium. S51. The Hotel Lot Owner has also abused its rights under the Master Declaration by improperly recharacterizing some of the Shared Facilities as “Condominium only” property. The result is that, instead of sharing such Shared Facilities expense 50/50, the Condominium Association now is improperly charged 100% and the Hotel Lot Owner pays nothing. §2. For example, the Hotel Lot Owner has been charging the Condominium Association for 100% of the heating, ventilation, air conditioning (HVAC) expenses, including the replacement of one of the Roof Top Units (RTU-3), major rotating assembly replacements for two cooling towers, and (RTU-1 and RTU-2) compressor replacements. 53. The Hotel Lot imposed the full amount of these charges on the Condominium Association even though the HVAC is clearly defined by the Master Declaration as one of the Shared Facilities, as the air conditioning system services both the Hotel Lot and the Condominium Lot. Master Declaration, section 1.1(bb). 54. The Hotel Lot Owner should have paid 50% of several HVAC related costs, including but not limited to RTU compressors, cooling tower fan assemblies, and RTU-3 system replacement costs because the Hotel benefits from the HVAC; instead, the Hotel Lot Owner forced the Condominium Association to bear the full expense. This was illegal. 55. The Shared Facilities designation is also wrongly applied to areas that are purely Hotel property (“Hotel only”) so that the Hotel can charge the Condominium for 50% of the Hotel’s expenses. For instance, the Hotel’s administrative “back of the house,” located on the Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 18 second floor of the Epic West Tower, is predominantly for Hotel use, but the Hotel Lot Owner charges 50% of the back of the house expenses to the Condominium Association and its unit owners. 56. The Hotel's administrative offices are located in the Hotel’s back of house. But because the Condominium Association’s small management office also happens to be located in that area, the Hotel Lot Owner treats the whole back of house as one of the “Shared Facilities,” even though according to the Master Declaration, the Hotel back of the house area is not a Shared Facility. In this manner, the Hotel Lot Owner improperly charges the Condominium Association 50% of the cost of operating the entire space. 57. Similarly, while the Condominium Association and its unit owners pay 100% of the costs for the Condominium Lobby, they also pay 50% of the costs for the Hotel’s Lobby because the Hotel Lobby is one of the “Shared Facilities” under the Master Declaration. The Hotel has charged the Condominium Association numerous times for 50% of the costs of décor and renovation for the Hotel Lobby as a Shared Facility but has never paid any monies toward the refurbishing of the Condominium Lobby, also designated as a Shared Facility under the Master Declaration. The Hotel treats the Hotel Lobby as a shared expense to defray its own costs and the Condominium Lobby as a “Condo Only” expense to avoid contributing any costs. 58. The Condominium Association is forced to subsidize 50% of the cost of the Hotel Lobby, even though the Hotel Lobby gets far more wear and tear than the Condominium Lobby, and even though the Hotel’s guests’ use of the Hotel Lobby is disproportionate to the Condominium Association’s unit owners’ use, and even though the Hotel Lot Owner does not contribute a penny to the costs of the Condominium Lobby. This is one of many examples of the Hotel’s collecting assessments and/or reserves for capital improvements from the Association and Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 19 spending those monies only on the Hotel and not the Condominium Association. The Hotel’s refurbishment of the Hotel pool furniture several times without any corresponding refurbishment of the Condominium Association’s pools even one time is another example. 59. The Hotel Lot Owner’s conduct —improperly transferring expenses from itself to the Condominium Association using the authoritarian powers bestowed upon it by the Master Declaration—is illegal under Florida law and the Condominium Act. 60. The Master Declaration also authorizes the Hotel Lot Owner to unilaterally determine the annual budget for the Shared Facilities expenses and to charge the Condominium Association and its unit owners accordingly. 61. The Condominium Association and its unit owners have no right to participate in the Hotel Lot Owner’s budgeting decisions: The Hotel Lot Owner shall budget and adopt assessments for the Hotel Lot Owner's general expenses for repair, operation, maintenance, improvement, betterment, replacement, insurance, alteration or relocation of, and taxes on the Shared Facilities (and :the establishment of reserves thereof at the election of the Hotel Lot Owner) based, in part, upon Hotel Lot Owner's reasonable projections of the lintensity of use of the Shared Facilities for the period subject to the budget... The assessment amount (and applicable installments) may be changed at any time by the Hotel lot Owner from that originally stipulated or from any other assessment that is in the future adopted by the Hotel lot Owner... Master Declaration, section 17.4. (Emphasis added) 62. Regarding insurance specifically, section 13.2(b) of the Master Declaration provides that the Hotel Lot Owner shall be the only “named insured” on any insurance policies for the Shared Facilities and that the Condominium Association has the unequal status of an “additional insured.” This is the case even though the Condominium Association shares equally in the premium. And, as illustrated further below, the Condominium Association actually pays in excess of its fair share of the premium. Epic West Condominium Association, Inc. v. Epic Hotel, LLC, et al. Complaint, Page 20 63. In the event of a payout of claims by the insurer regarding Shared Facilities, section 13.2(b) of the Master Declaration authorizes the Hotel Lot Owner to receive the insurance proceeds. Section 13.8 appoints the Hotel Lot Owner as agent and attorney-in-fact for the Condominium Association to adjust any claims unilaterally even though, again, the Condominium pays (at least) half the premium. 64. The Hotel Lot Owner’s grossly one-sided power is exacerbated by the Hotel Lot Owner’s failures to operate, maintain, and repair the entire Epic West Tower to the standards required by the Master Declaration and anticipated by the residents of this luxury building. 65.