The various policy options for the settlement of disputes in residential community schemes

Van der Merwe, C. G. (2014-01)

CITATION: Van Der Merwe, C.G. 2014. The various policy options for the settlement of disputes in residential community schemes. Stellenbosch Law Review = Stellenbosch Regstydskrif 25(2): 385-407.

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This contribution in honour of David Butler surveys the various policy options for the resolution of disputes in community schemes. The options are internal mechanisms, co-regulation, government regulation, a simplified procedure in ordinary courts, the establishment of specialised strata title tribunals and the establishment of a specialised sectional title ombud service. The basic characteristics of each policy option are explained and each option is subjected to critical assessment. Illustrations of self-regulation are the neighbourhood committees of Colombia in South America and the meetings convened by the President (chairperson) of Catalan condominium schemes to attempt dispute resolution. Instances of co-regulation are provided by the Ontario Condominium Act of 1998, the British Columbia Strata Property Act SBC 1998, the Florida Civil Rights statute on Condominiums (Florida Civil Rights 2013 FlaStat XL Ch 718 Condominiums) and the English Commonhold and Leasehold Reform Act of 2002. These statutes oblige strata owners to resort to mediation and arbitration before approaching the courts. Similar dispute resolution mechanisms are encountered in Catalonia and the Basque Region of Spain and in the Dutch Model Bylaws for apartment ownership schemes. Under the heading government regulation the functions of the Singaporean Commissioner of Buildings and the Sri Lankan Condominium Management Authority are explained. After a brief discussion of the simplified court proceedings practised in Germany and the streamlined dispute resolution proceedings before a Justice of the Peace in Portugal, the role of specialised tribunals in dispute resolution in Singapore and New South Wales is attended to. The article is concluded with a survey of the special ombudsman service in Nevada and Florida in the United States and the South African ombud service in terms of the newly promulgated Community Schemes Ombud Service Act 9 of 2011. The latter mechanism is hailed as one of the most advanced dispute resolution systems in the world.

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