Wednesday, June 30, 2010

Toohey & Toohey on Therapeutic Jurisprudence in Community Titles Disputes

Lisa C. Toohey (Queensland) and Daniel J. Toohey (New South Wales) have posted Achieving Quality Outcomes in Community Titles Disputes: A Therapeutic Jurisprudence Approach.  The abstract:

Community title schemes are an increasingly popular form of housing in Queensland and throughout Australia in general. Community title housing (typically apartment buildings and townhouses) involve medium to high-density living, which in turn tend to produce a higher incidence of neighbourhood disputes than lower density living options. However, a second reason for the prevalence of the disputes is the varied nature of interests in a community title scheme. Within the single scheme, there may be owner occupiers (either residential or commercial or both), tenants (again, residential, commercial or both), members of the body corporate committee, and property managers. Each of these types of stakeholders has different interests and perceptions of how a scheme ought to operate, with the potential for serious disputes to result.

Recognising the potentially harmful effects of community title disputes and the need for accessible dispute resolution options, the Office of the Commissioner for Body Corporate and Community Management (OBCCM) was established to provide specialist dispute resolution procedures. The OBCCM offers conciliation and adjudication, with avenues of appeal available to the newly-established Queensland Civil and Administrative Tribunal. 

The OBCCM’s self-identified objective in relation to this service is to offer “a quality dispute resolution service which is timely and responsive.” In practice, the dispute resolution services are a hybrid of inquisitorial and adversarial approaches, focussing on the legal aspects of the dispute. 

This paper combines academic and practitioner perspectives to explore the possibility of a therapeutic approach to body corporate and community title disputes. The paper firstly provides an overview of the dispute resolution context of community title disputes and the role of the OBCCM. It then considers the effect of current OBCCM practices on participant wellbeing, and questions whether the introduction of a therapeutic approach might not only improve outcomes in discrete cases, but in fact have the potential to enhance or restore community living within troubled schemes. Finally, the paper comments on the type of legal and dispute system changes that might be required to facilitate such an approach.

Matt Festa

http://lawprofessors.typepad.com/land_use/2010/07/toohey-toohey-on-therapeutic-jurisprudence-in-community-titles-disputes.html

Comparative Land Use, Housing, Scholarship | Permalink

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