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ARBITRATIONS: Sectional Title Arbitration Process Needs An Overhaul


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Whether it's unauthorised home extensions, a noisy dog or a new satellite dish the size of a small planet, disputes are bound to arise in sectional title complexes, where people live in close proximity. However, it's how these disputes are resolved that is becoming an increasingly thorny issue, according to specialist sectional title attorney, Marina Constas, a director of BBM Attorneys.

“The normal route of arbitration is not achieving what the legislators originally intended, and sectional title owners need access to a more affordable, expedient process,” she asserts. Spearheading the development of this process, BBM Attorneys, has joined forces with dispute settlement specialist Equillore and the National Association of Managing Agents (NAMA) in an initiative that aims to streamline sectional title disputes, and, Constas states, “take mediation and arbitration to a new level”.

She explains that currently, in terms of Management Rule 71, if disputing sectional title parties cannot agree on an arbitrator, the matter must be referred to the Chief Registrar in Pretoria. “While this system is slightly better than having to go to the Registrar in every Deeds office, there are still serious concerns. A few of the people being appointed as arbitrators have no experience at all in sectional title matters,” Constas says. She adds that in addition to this, many arbitrators are overcharging, and cites a recent, simple matter in which the arbitrator, an Advocate, charged R54 000. These types of matters should cost a maximum of R15 000, she contends.

Sectional Title Association of Arbitration's to Appoint a Specialised Panel

While interested parties had thought a solution may lie in the appointment by the Chief Registrar of a nominee with a specialist sectional title background, Constas says that it is now clear this won't happen at this time. She explains: “In terms of Management Rule 71, a Registrar can have a nominee, but after numerous meetings with the representatives of the Chief Registrar, it is clear that they will not relinquish their duty to appoint a nominee. They are, however, willing to work with the Association of Arbitrators to appoint from a specialised panel, which is what Equillore, BBM Attorneys and NAMA are currently putting together.”

While this panel will go a long way towards streamlining sectional title disputes, Constas believes there is also a need to introduce more mediation into the mix. “Mediation doesn't really play a role in sectional title currently. I feel really strongly that it should, because it can work here. If an objective person, having knowledge of sectional title, as well as a background in mediation, can sit between two sparring parties and direct and guide them with possible compromise instead of entering into costly litigation, it will make a huge difference in the Industry,” she states.

The first obstacle to overcome, however, is the shortage of qualified mediators in South Africa. “There are only two accredited sectional title mediation courses on offer at the moment, and these are expensive, which is surprising in view of the fact that mediation will become compulsory with our Court system shortly.”


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