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Article: The Courts
& Property Dispute Resolution
The courts are one means of
resolving disputes between individuals, companies and
landlords and tenants, but they are not necessarily the
most effective, particularly where the parties
previously enjoyed and may well want to continue to enjoy
a close working relationship.
The main problem with the court
system is that it is primarily an antagonistic process:
it pits one party against the other in order to determine ultimately
a winner and a loser.
As a consequence the court system
tends to emphasise and heighten the tension and conflict
between the parties as each tries to show the other in
the worst possible light, rather than trying to reach
an amicable compromise.
Alternative
Dispute Resolution (ADR)
The courts themselves recognise the
effectiveness and increasing importance of alternative
means of resolving disputes, and indeed judges will
sometimes suggest this course of action prior to a court
hearing.
What
is Arbitration
This is a procedure where the
parties to a dispute refer the issue to a third party
(usually an expert in the field) for resolution rather
than taking the matter to the law courts.
Section 1 of the Arbitration Act
1996 states:
- The object of arbitration
is to obtain the fair resolution of disputes by an
impartial tribunal without unnecessary delay or
expense.
- The parties should be free to
agree how their disputes are resolved, subject
only to such safeguards as are necessary in the public
interest.
Many lease agreements make
provision for disputes arising between landlord and
tenants to be dealt with by arbitration as opposed to
a court of law, and usually specify how the arbitrator is
to be appointed, often with ultimate reference to the President
of RICS.
If one party seeks to start a court
action in the face of a prior agreement to arbitration,
the other party can request a stay of litigation from
the court. If, on the other hand both parties opt for
court action the arbitration agreement can be ignored.
There a limited rights of appeal
after an arbitration decision is made and may only be
allowed at the discretion of the courts on a point of law.
The court has the power to order a
party to comply with an order of an arbitration
tribunal.
In general the courts have no
objections to individuals settling their disputes by voluntary
means such as arbitration though they are careful to
maintain their supervisory role.
Arbitration agreements are no
different to other forms of contract and as with other
forms of contract law disputes the courts will strike
out any attempt to oust their ultimate jurisdiction as
being against public policy.
Both parties to an arbitration
dispute will be jointly and severally liable for the
costs and fees involved.
The
Advantages of Arbitration:
- Privacy - Arbitration
tends to be a private procedure so outsiders do not
have access to sensitive information and the parties
do not have the risk of bad publicity arising from
newspaper reports.
- Informality - the proceedings
are much less formal that a court case and scheduling
is often more flexible.
- Speed - The process is
usually much quicker that a court case. However, if
one party decides to challenge the decision through
the courts then the process will be ultimately longer
and greater in cost.
- Expertise - The person
appointed is usually someone with expert knowledge of
actual practise in the filed, whose decision should
reflect this.
- Cost - Arbitration is
usually a much cheaper process. However, the cost of
expert's fees should not be underestimated.
Small
Claims Procedure in the County County
The Small Claims procedure is
another for of arbitration service which has been
available since 1973.
The procedure is operated by county
court district judges.
Reference to arbitration is now
automatic in cases involving amounts of less than £5,000,
and may also be used for greater amounts when both parties
agree. See Small Claims
Court
Arbitration
for Codes of Conduct
As part of its remit in the
regulation of trade practices the Office of Fair
Trading has encouraged the development of several voluntary
codes of practise within several areas. It is usual that
such schemes provide for arbitration schemes to resolve
the most intractable of disputes.
These schemes are not compulsory and
do not replace the consumers legal rights, but they
do provide a quick and inexpensive means to resolves
disputes shout of court actions. Consumer
Arbitration Act 1988
The
Housing Ombudsman Scheme
The Independent Housing
Ombudsman Scheme deals with disputes between landlords and
tenants in England.
The Scheme was established
under the Housing Act 1996 with covering more than 2,000
landlords.
The Housing Act 1996
requires all social landlords to belong to the Scheme. But
it does NOT include local councils: council tenants must
complain to the Local Government Ombudsman.
It includes all landlords
registered with the Housing Corporation and any landlord
who has taken over local authority homes, such as a 'local
housing company'.
The Scheme also includes
private landlords which have joined it voluntarily. Many
unregistered subsidiaries of registered social landlords
have joined, as have some other landlords.
Tenants can search our
online for registered landlords.
Complaints should be made
as soon as possible to the landlord, and within any time
period they specify in their procedures. The Ombudsman
will normally only accept a complaint which was made to
the landlord within 12 months.
Complaints about landlords
generally fall into the following categories:
- Failure to carry out
repairs in a reasonable time
- Claiming tenants
were in rent arrears when they were not
- Charging you more than
anybody else for the same service
- Unreasonably refusing to
give tenants a home or a transfer
Generally the Ombudsman
will not deal with:
-
Complaints because
tenants do not agree with general policies or
decisions of the landlord
-
Quarrels between
tenants and neighbours - but the Ombudsman will
consider a complaint about how the landlord dealt with
a nuisance created by a neighbour
-
Problems that are about
to go to court (or have already done so), or that the
Ombudsman thinks would be dealt with better that way
-
Complaints about the
level and amount of rent and service charges - rent
offices or rent assessment committees will generally
consider these. But the Ombudsman will consider
complaints about how rents or service charges are
administrated or calculated, failures to supply
services, or how charges are applied to an individual
-
Complaints from
contractors, consultants, employees or others who are
paid by the landlord, about their professional or
commercial relationship
-
Complaints from
neighbours who live near a landlord's property.
Administrative
Tribunals
examples include:
Types of
Tribunal
There are two main types of
tribunal: the
policy tribunal - for example, welfare tribunals; and the
court-substitute tribunal - for example, industrial
tribunals.
For policy tribunals it is important
to limit appeals, since one of the main reasons for the tribunal rather than
the court is to
avoid legal decisions that would inevitably result from
the court's involvement.
Tribunals heard 1.15 million cases
in 1995-96.
The three largest tribunals
heard 940,000
cases and decided 290,000. The Valuations Tribunal 670,000 cases (58%) (cost
£10.9 m), the Social
Security Appeals Tribunal 160,000 cases (14%) (cost £42.5m),
and the Industrial Tribunal - 110,000 cases (10%) (cost £
34.7m).
Some
Examples of Tribunals
- The industrial
tribunals. These
have legally qualified chairmen, and an employer's
(usually from the CBI) and employee's representative
(usually from a trade union). Appeals lie to the
Employment Appeal Tribunal on law or as a rehearing
before a differently constituted IT on fact.
- The social security appeal
tribunals, of which there are more than 200. They,
like the ITs, have a legally qualified chairman and
two lay members. Appeals lie to the Social Security
Commissioner, on point of law. Similar tribunals
include the NHS and mental health review tribunals.
- The Lands Tribunal - on the same
level as the High Court
- Valuation Tribunals
- tax and VAT assessment appeals.
Why
has Tribunal use Grown?
Tribunals become more
popular because:
- there has been an extension of
the powers and duties of the State - e.g. in welfare,
housing and tax
- there has been a creation of
rights and duties between private individuals and
companies - e.g. in employment
- administrative decisions are now
more complex and too legal in nature for the departments of government,
and too many in number for them to be dealt with
solely by the courts - there are now more cases taken to
administrative tribunals than to ordinary courts
- tribunals are made up of
experts in the field making it more efficient for them
to deal with specific aspects of the law.
Tribunals are essentially courts
with simplified procedure, and such differences as there
are not significant in most cases.
The Tribunals and
Inquiries Act 1992 requires reasons for decisions
to be given by tribunals, and allows for appeals to the
High Court from most tribunals.
The
Advantages and Disadvantages of
Tribunals
Low cost
- Accessible
- Expert knowledge of their
particular subject
- Legally qualified chairmen - helping to ensure
justice is done
- Balance
- The no-costs rule and lack of legal aid penalise
poor litigants, although they do keep costs down.
- The procedure means that if you do not know what you
are doing the tribunal will help you.
- Tribunals' local knowledge can be beneficial.
- The lack of fees encourages poor applicants,
although it may also result in ill-founded claims.
- They help reduce the workload of the judiciary.
- They reduce the workload of government departments.
How
are Tribunals Controlled
- Judicial review
- Appeals are usually to the High Court on points of
law
- Appeal tribunals
Note: never rely totally on these standard
answers. Before taking action or not, always seek
professional advice with the full facts of the case and
all documents to hand. LandlordZONE.co.uk
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LandlordZONE® 2007 all
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