Understanding Disputes

Understanding Disputes in an Owners Corporation

Common Disputes

In a body corporate situation, disputes will usually either arise between unit owners, owner/owners and the body corporate or an owner/the body corporate and a neighbour. The most common owner-to-owner disputes tend to be over noise, lack of appropriate maintenance of their own property or the use of common property (such as someone parking a car in the common area or someone else's private car space). Owner–body corporate disputes are commonly over maintenance issues or fees and body corporate to neighbour issues can be over anything from overhanging trees to construction noise.

The First Steps

Larger bodies corporate will often have an internal dispute or grievance resolution process documented and many dispute-resolving tribunals will have expected the parties to have gone through such an internal process before they will consider reviewing the issue. In Tasmania, common property is usually so clear cut that any disagreements are rarely escalated outside the body corporate. In Western Australia, about 95 per cent of cases are either dismissed or withdrawn by consent.

Formal dispute-resolution processes vary from state to state, but the road to them should be universal. The best way to deal with a dispute, if possible, is to not let it get out of hand in the first place. Good communication is vital.

Talk it Over

It’s amazing how often people who are involved in a dispute have not sat down together to discuss the issue calmly. Some people are inclined to go into battle at the first sign of trouble rather than actually approaching the people with who they’re in dispute and putting forward to their case.

Resolving disputes amicably often relies of both sides making some concessions. Listen to the other side’s point of view, respect it and see if you can’t come to an arrangement that will suit you both. Going in for all or nothing is no way to resolve a disagreement in a civil community.

Dealing with Difficult People

No matter what you do some people are and will remain difficult. How they act is beyond your control, but you do have a choice when it comes to how you respond to them.
People can be influenced by the responses they receive and some will push you to your limit. This is when it’s important to set boundaries on their unacceptable behaviour.
Give yourself time to choose your reactions. Flying off the handle won’t solve anything and will, in fact, probably enrage (or satisfy!) the prickly person even more. Some ways you can diffuse angry people is to:

  • Let them get their point across. Some people just want to be heard and feel like they are being understood.
  • Step back from the situation while you both cool down. A night’s sleep can do wonders to shed new light on a situation.
It’s important to realise that the situation is probably not personal. Difficult people tend to be that way with everyone. It might help to try to understand where the person’s personality is stemming from – often it’s a position of fear. Getting to know someone better might help you understand this fear and go part way to brokering a solution.

If no concurrence can be reached, the next step in resolving an owner-to-owner dispute is through the body corporate.

Get the Owners Corporation Involved

Taking your dispute to a meeting is the next relatively contained way of reaching a resolution. It’s important that this step is a mutual decision between both parties and that both will accept the resolution suggested by the owners corporation as final.

If the dispute is over a by-law, the body corporate can issue a written notice to the recalcitrant tenant/owner. If the notice is not actioned, the body corporate may by resolution decide to take the matter to the tribunal (or ajudicator) to seek an order to impose a fine or rectification or both. The body corporate would have to fund the process initally but may be awarded costs from the outcome of the hearing.
Of course, if your dispute is with the body corporate, the next step is mediation.

Mediation

Mediation is a process used more and more frequently by the legal system as a first point of call for dispute resolution. It is favoured for the potential time and cost savings it can create by not dragging a frivolous or more-straightforward dispute though the courts.

Mediation is the process whereby a neutral or independent moderator assists the quarrelling parties to reach their own solution. It is a reality inexpensive process (you only pay the mediator for their time) and can be accessed through your state/territory-based consumer authority or through the legal system. It is important to remember that this process is not legally binding, but is made in good faith.

The mediator’s role is to:
  • Help both parties to understand and clarify the issues in dispute
  • Suggest ways to address the disagreement
  • Come up with a means of settling the dispute that is agreeable to both parties.

Adjudication

In some states, like News South Wales, there is an extra step in the process here: adjudication. Adjudicators usually hear disputes related to issues such as repairs, water penetration, unapproved parking, unapproved pets, noise and alterations to common properties (such as closing in balconies). In this process, both parties make submissions to the independent adjudicator and a decision is returned within about 10 weeks. The parties do not need to appear before anyone such as in mediation. The adjudicators ruling (and reasons behind it) are then sent back to all parties in writing. An adjudicator’s decision is legally binding but dissatisfied parties can appeal to the relevant tribunal. In Tasmania, the Recorder of Titles settles strata scheme disputes and may or may not request a hearing.

Tribunal Hearings

The next step, in most Australian states and territories, is to apply to a government-run tribunal for help. In Victoria, this is VCAT (Victorian Civil and Administrative Tribunal) and in Western Australia is the State Administrative Tribunal. These authorities make legally binding decisions about how disputes are to be settled. Tribunals are run like mini courts with similar protocols and processes, although not quite as formal. Solicitors are not usually required and parties usually argue their case by themselves. Applications are usually available online and submissions must include all information relevant to the case. Tribunal rulings include:

  • Ordering someone to do something or stop doing something
  • Imposing a financial penalty for breaking a rule
  • Ordering damages to be paid to the successful party
  • Varying a contract or specifying that the contract is now void
  • Appointing or removing a manager, chairperson or secretary
  • Appointing an administrator.