Monthly Archives: November 2011

When things get bitter

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Disillusioned and disappointed this week at the outcome of a court case, I took to a series of papers on alternative dispute resolution in strata communities. Two of my colleagues are studying this subject for their masters degree.

The most recent (Leshinksy, 2011) begins with the observation that owner / occupier and neighbour disputes can be some of the most bitter and protracted types of disputes in our communities. Ain’t that the truth!

Another (Fitzgerald, 1985), found 39% of households interviewed had experienced one or more neighbourhood grievances within the preceding three year period. Thirty five percent of these reached a dispute level in that one neighbour approached the other or a third party about the matter.

There was a high likelihood that those conflicts that reached the dispute level would lead to a damaged or destroyed relationship. Lower income groups were found to have a higher level of unresolved grievances and ethnic groups tended not to take their grievances to a third party.

Staggeringly, the local government (39%), police (29%) and lawyers (10%) were approached in almost 80% of cases.

My conclusion is this: there is no perfect form of dispute resolution. Every conflict is different but somehow the same. The saddest statistic of all from these papers is that nearly one quarter (24%) are not resolved at all. This is when things really get bitter.

Strata Industry Working Group disrespects the legal process

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…….. on common property definitions and a new legal debacle is set to unfold

The latest issue of ‘Inside Strata’, the magazine of Strata Community Australia (NSW/ACT Edition Oct/Nov 2011), claims a new memorandum will resolve common property confusion when nothing could be further from the truth.

The memorandum, originated by SCA and championed by the Strata Industry Working Group, seeks to define the difference between common property and lots for determining who is responsible for repair, replacement, or maintenance of an item or area within a scheme.A laudable objective though this is, the initiative goes one step too far by suggesting it can be adopted by existing schemes as well as new schemes.

The problem you see is that a strata scheme’s plan together with the strata legislation does this work. Where there is conflict the courts resolve the matter and under our system of justice, these judgments are binding precedents for determining future disputes.

The imposition of a generic list written by the bureaucracy and supported by a group of surveyors and strata managers disrespects this legal process.

The adoption of the list by existing schemes will inevitably create more confusion not less and will give oxygen to invalid claims that might otherwise have died the natural death they deserved.

Apparently neither the Law Society of NSW nor the Australian College of Community Association Lawyers Inc was part of the SWIG meeting that lead to this initiative.

If there is confusion about the current legislation and court rulings, then this can only be fixed by new legislation. Issuing a memorandum and a press release just doesn’t cut it, and with good reason. Governing by press release is not subject to the same degree of public consultation, parliamentary debate, and intellectual rigor that accompanies drafting new legislation.

This initiative, far from resolving strata community conflict will fuel more and a whole new legal debacle is about to unfold.

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