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                Dispute Avoidance -

Dispute Resolution: Statutory, Contractual, Voluntary.

                      JAMES O’DONOGHUE
            SEMINAR     DUBLIN CASTLE 5 APRIL 2011
                                                     COPYRIGHT RIAI
•   Dispute Avoidance – Dispute Resolution

•   Characteristics of MUDs – from a potential Dispute perspective

•   Typical Development Phase agreements & Ownership Model

•   Dispute Resolution Provisions in the Act

•   The Contracts– Opportunity to close gaps in Dispute Resolution options

•   What would we like to happen when something goes wrong ?

•   Who might help ?

•   Dispute Avoidance.
Dispute Avoidance – Dispute Resolution

• In drafting, think of Avoidance as well as Resolution provisions.

• Techniques well developed:
   – Negotiations skills,
   – Mediation,
   – Conciliation (Mediation – Recommendation) Med-Rec
   – Expert Determination,
   – Court Proceedings,
   – Alternatively, Arbitration.
Characteristics of Multi-unit Developments

• Variety of Developer types: Private Capitalist: Not for Profit Social:
  Local Authority, etc.

• New Build – Unique design for each location – one-off relationships.

• Buyers are Consumers – High level of trust – Buyers expected to
  live in close proximity – quiete enjoyment – often family homes –
  high expectation.

• Technically and aesthetically demanding.
                                             The Legal Architecture – Typical:

• The “ Land” Agreement between;
    (1) Developer /Lessor and (2) Management Company and (3) Buyer/Lessee.
         With maps, plans and draft Certs of Compliance displayed .

• An Agreement between Management Company and the
      Buyer/Lessor whereby the Lessor becomes a Member

•   Building Agreement between Building Company (usually the
    Developer, not always) and Employer / Buyer - with an Arbitration
    Clause and with Specifications and Drawings relating to the specific unit in its
                                       Typical Development Model


    Usually owned               Arm of Developer
    by Developer                or Contracted Out

                    OMC                      Builder


     Agreement                         Building

                           Typical Ownership Model

                 OMC                 Manager

Landlordship               Membership

Section 3.—(1) A person to whom this section applies shall not, …
transfer his or her interest in a residential unit in a multi-unit development
…unless —

• (d) a contract in writing is entered into between the developer and
  the owners’ management company concerned prior to such
  transfer setting out the rights and obligations of each of those
  persons relating to the completion of the development and which
  includes particulars of the arrangements relating to—
• …........
    – (iv) the process for resolving disputes between the parties to
      the contract as respects the completion of the development.
Section 24.—(1) A person specified in section 25 may make, in
respect of a multi-unit development, an application to the court—

(a) for an order under this section to enforce any rights conferred, or
obligation imposed, by this Act or any rule of law, or

(b) for an order relating to any matter to which reference to making an
application under this section is made in this Act.
Section 25.—(1) The following persons may apply for, or
appear and be heard at an application for, an order under
section 24:

(a) the owners’ management company relating to the relevant
multi-unit development or a part of the relevant multiunit
(b) any member of such an owners’ management company;
(c) any trustee under a will, settlement or other disposition of
land by such member;
(d) the personal representative of a member of such an
owners’ management company;
(e) the developer of the multi-unit development;
(f) with the permission of the court, such other person as the
court sees fit.
Sections 27 and 28 - Mediation

• Mediation Model well developed – similar to PIABs and PRTB

• Facilitative Mediation now well established .

• New Court Rules for Mediation.

• Significant increase in number and range of Mediation Service
Section 29

• Nothing in this Act shall be taken to derogate from any
  Right or Power which may, whether before or after the
  passing of this Act be vested in any Person or Court, by
  Statute or otherwise and the Powers conferred by this
  Act shall be in addition to and not in substitution for
  such other Rights or Powers.
Contractual Models – Opportunity to close gaps and
Dispute Resolution options.

• Golden opportunity to improve the Agreements
   – The “Land - / space” element,
   – The OMC suite of Agreements,
   – The Building Agreement.

• Ensure that Dispute Resolution Provisions are consistent with the
  terms of the Act.
   – i.e; That Arbitration is at the option of the Consumer / Buyer,

• The introduction of stepped Dispute Resolution Clauses providing
  for Mediation or Conciliation as Step 1 (save for “urgent”
• Statutory Adjudication – For the future
What would we like to happen when something goes
wrong ?

• That the Rights and Obligations of the parties are sufficiently clear to
  help identify the problem and the responsible party.

• That the problem can be dealt with speedily – preferably without
  resort to third party help or the Courts.

• That the provisions for Resolution start with Negotiation and
  escalate to third party help.
Who might help ?

• Facilities Manager,

• The Parties Solicitors,

• Mediators:    Legal for predominately legal issues;
                Technical for predominately technical issues,

• Arbitrators: Greater emphasis on Party selection,
Dispute Avoidance.

• Good Contracts –   Well thought out and comprehensive, legally
                     and technically.

• Good Faith !

                          Thank you.
                        James O’Donoghue

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