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The noble Baroness said: I tabled the amendment after having spent most of the summer Recess in Australia. I lived in a strata title unit in New South Wales, an arrangement which is the equivalent of commonhold. That experience taught me a great deal about the difficulties that people encounter in such apartment blocks. It also made me curious to learn as much as I could about the legalities of the New South Wales system.
I invested in a definitive volume on the subject, Strata Title Units in New South Wales, although I should tell noble Lords that it was horribly expensive. It provides all the information required to respond to many commonly asked questions and is written in such a way that ordinary people can understand it. I was interested to learn that the author of the book had been the commissioner for strata title. I wondered why a commissioner had been appointed. I learned from the book the reasons why the position was created. My proposal for the establishment of a commonhold commissioner and regional boards seeks to create a parallel with the strata title commissioner.
Perhaps I may draw the attention of Members of the Committee to the text of this book. However, first I should point out that many people lived in strata title accommodation before any specific law had been enacted to control such accommodation. Until a law was passed in July 1973 and enacted in 1974, any dispute between individuals or bodies corporate,
The book contains a great list of the kinds of cases that can be determined. I was particularly interested in one example--there are a number of examples given--which is exactly the kind of thing that occurs even now in other types of properties. Example No 1 states:
The essence of it is that it would be an inexpensive way of operating the system. If, as the Government claim, they really want to see commonhold come in, it is important to place a provision such as this into the Bill at this stage so that if at a later time it was found that such a commissioner was needed, one could be appointed quite simply. It will be no good at all if we have to come back with further primary legislation to do this. That is the kind of thing that never happens soon enough. If we consider how leasehold and commonhold have taken years to reach this point, it would certainly be a long time before there was enough parliamentary time to come back again on this.
I do not think that it is at all parallel to the ombudsman scheme referred to in Clause 41. It is quite different from that. The idea is to make it easy for people to handle disputes and to reduce the very high cost of the legal fees involved. I was impressed in New South Wales by how simple all kinds of tenancy matters are and how minimal are the costs for both landlord and tenant compared to this country in terms of letting or sale of a lease. It was quite enlightening for me to see the difference.
It is a simple idea. I am putting it forward today in order that the Government may give thought to the matter. I obviously do not expect the amendment to be accepted without thorough investigation, but it deserves thorough investigation as it may prove to
Lord Monson: In rising to support the noble Baroness, Lady Gardner, perhaps I may clear up a misconception on the part of the Government. At Second Reading, I ventured to suggest that, for all the Government's good intentions, the commonhold system would not automatically lead to sweetness and light all round. In his reply, the noble and learned Lord, Lord Falconer of Thoroton, said:
I am afraid that I have no suggestions to make.
I am not blaming the Government for anything; I think that they have done as good a job as they can. The problem lies with human nature. It is in the nature of neighbours to quarrel sooner or later. Those in semi-detached or terraced houses will quarrel more frequently than those in detached houses; those in flats will quarrel more frequently than those in semi-detached or terraced houses. In flats, noise comes not only laterally but from above and below, and there is the added problem of the eventual use or misuse of common parts.
This applies equally of course to leasehold flats where the lessees have the right to manage, as I know from personal experience, albeit at one remove, as I have mentioned two or three times before. I do not think anything can be done about it. You can draw up a very rigid legal framework, but there still has to be give and take between occupants of flats which cannot be encompassed within a legal framework. There are bound to be disputes and the proposal of the noble Baroness seems as good a way as any of resolving them.
Baroness Scotland of Asthal: May I say straightaway to the noble Baroness, Lady Gardner, how pleased we are that she is involving herself with such energy in this regard. I shall be very pleased indeed to see the results of her investigations. I can reassure her that we are committed to the development of commonhold and want to see it thrive.
The noble Baroness, Lady Gardner, is widely experienced in the ways of commonhold in other jurisdictions. As she is aware, while developing this Bill we have quite shamelessly borrowed good ideas from a number of other jurisdictions. We make no apologies for that. We are aware of the good work done by the strata title commissioners and their counterparts around the world, but we wonder whether the dispute resolution function is not better carried out in the way that we are proposing.
To arrive at the noble Baroness's model, particularly in the early stages of commonhold, would be prohibitively expensive. Of course there will be disputes within commonhold, and of course they will
As the noble Baroness will be aware, we are keen to promote alternative dispute resolution processes in the commonhold context. As the noble Baroness mentioned, Clause 41 provides for the approval of an ombudsman scheme. Our thinking at the moment is that the commonhold ombudsman scheme should be very closely modelled on that of the Independent Housing Ombudsman, whose input into our planning process has been most welcome and has been viewed by many as a great success.
One of the possibilities open to us would be to appoint the Independent Housing Ombudsman as the commonhold ombudsman in the first instance. This would bring us expertise, a wide range of alternative dispute resolution processes, excellent value for money and a system well used to dealing with disputes from all around the country which works well and is well respected.
In other jurisdictions, as the noble Baroness said, the equivalent of the proposed commissioner has other duties such as the maintaining of registers, zoning and planning regulation and the collection and scrutiny of accounts. All of these functions are carried out by other distinct bodies in England and Wales, and the noble Baroness has recognised this in proposing only that the commissioner should deal with disputes.
I hope that I have said enough to persuade the noble Baroness that we are taking dispute resolution seriously and intend to see that it is in good hands from the outset. An appropriate mixture of locally served notices, an ombudsman, tribunals and courts ought to provide all that we need to resolve any dispute arising in commonhold.
We shall look at this matter because it is our intention to have a system which will give effective resolution, speedily and in a cost-efficient way, for those who engage in commonhold. We gratefully take into account everything that the noble Baroness said in relation to this matter. We thank her for the interest and the energy with which she has raised these matters in the past. It has given us great pause for thought.
"COMMONHOLD COMMISSIONER AND REGIONAL BOARDS
(1) The Secretary of State may by regulations establish the post of Commonhold Commissioner.
(2) The Commonhold Commissioner may determine such disputes and complaints arising within a commonhold association as the Secretary of State may by regulations prescribe.
(3) Regulations may provide for the establishment of Commonhold Regional Boards which may act on behalf of the Commonhold Commissioner.
(4) The Commonhold Commissioner shall, on receipt of an application for an order under subsection (2) above--
(a) determine the application himself, or
(b) remit the application to the appropriate regional board for determination,
as he considers appropriate.
(5) The power to confer jurisdiction on a tribunal under section 64(3) above shall include the power to confer jurisdiction on the Commonhold Commissioner."
"could only be remedied by instituting proceedings in the Supreme Court. In many instances the nature of the dispute neither warranted the attention of that Court nor was it practicable to institute those proceedings. It was for this reason that once a dispute arose, whether between residents in the scheme or between a resident and the body corporate, it lingered on until such time as common sense prevailed or the disputants found some other means by which it might be resolved".
People became extremely frustrated when they found that their problems could not be dealt with in a simple and straightforward manner. The book goes on to explain that:
"The Act creates the position of Strata Titles Commissioner"
--whose equivalent would be a commonhold commissioner--
"and invests in the holder of that position the power to determine a wide range of disputes or complaints capable of arising within a strata scheme. It further provides that within a prescribed area, there shall be a Strata Titles Board".
I shall not go into the detail at this point because later I can give the book to the Minister, who might be interested to read it. However, I shall cover one or two further points:
"[The board] is invested with exclusive jurisdiction to hear certain types of dispute which, through the nature of those disputes, merit judicial determination. In the case of any dispute capable of being determined by the Commissioner, there is no right of appearance of the parties before the Commissioner".
The text covers the details of application and so forth. It then states that:
"It should be appreciated . . . that only disputes arising within a strata scheme, are capable of being settled by either the Commissioner or a Board. Disputes arising under any other form of property ownership",
are not covered by this jurisdiction.
"Furthermore, any dispute arising between the participants of two different strata schemes or between a participant in a strata scheme and an occupier of adjoining premises unrelated to the scheme, are equally incapable of being determined under this legislation".
"The body corporate has resolved to invest the moneys which it holds in its sinking fund for a period of five years. A number of proprietors in the scheme are of the opinion that the bulk of moneys will be required within the next two years to pay for repainting of the common property. Those proprietors would be entitled to seek an order",
from the commissioner requiring that this be taken into account and a decision made.
"We would be grateful to hear from the noble Lord"--
that is myself--
"on any detailed points of concern so that we can work with him to try to reduce as much as possible any problems in the working of commonhold".--[Official Report, 5/7/01; col. 919.]
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