THE SUSTAINABLE COMMUNITIES & HOUSING COMMITTEE
MULTI-UNIT DEVELOPMENTS ACT 2011
Dispute Avoidance -
Dispute Resolution: Statutory, Contractual, Voluntary.
SEMINAR DUBLIN CASTLE 5 APRIL 2011
• 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,
– 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 –
• 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
Typical Ownership Model
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
• (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
(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
• 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
• 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,
• Good Contracts – Well thought out and comprehensive, legally
• Good Faith !