This study aims to investigate Australian civil tribunal decisions to ascertain compliance with decisional quality standards in Australian law, with a particular focus on strata and community title cases.
An orthodox doctrinal legal analysis and assessment of cases and tribunal policies was adopted. All Australian jurisdictions were surveyed, including federal, state and territory jurisdictions. The case law in each jurisdiction was screened to identify whether the principles applicable to decisional quality were engaged and then analysed as to the extent of that engagement.
Where a party presents a substantial, clearly particularised argument relying upon established facts, tribunals are obliged to address those facts and the arguments by way of an active intellectual process. However, appellate decisions disclose a degree of deference not often accorded to judicial officers, and there is a need for a more disciplined approach to ascertain whether any errors have been made by a tribunal lie on the critical path to the decision. As strata and community title disputes become more complex, the importance of decisional quality standards can only increase.
Up to date as of 1 March 2023.
The present position would appear to be that where a party presents a substantial, clearly particularised argument relying upon established facts, a tribunal must address its mind to those facts and the arguments by way of an active intellectual process. The requirement is limited to circumstances prescribed by a statute and factual and legal issues which are necessary to be determined in order for the tribunal to be satisfied as to circumstances prescribed by a statute. However, where the errors are not gross and plainly obvious, appeals from defective tribunal decisions are unlikely to succeed. There is a degree of deference not often accorded to judicial officers. That deference is unfortunate when tribunals are allocated jurisdiction over what quite often are significant property disputes.
The impact on community living of uncorrected poor quality tribunal decisions can be immense, depending on the degree of error. For example, water ingress into people’s homes might remain unremedied for many years, as, for example, occurred in the Marinko case.
The research and analysis is entirely original. A search of journals and textbooks did not identify any prior analysis, at least in the Australian context, relating to decisional quality standards of tribunals.
]]>This paper aims to unfold the intricate relations between private law design, the structure of organizations for collective action and cultural values and orientations that practically guide interpersonal interactions in Chinese society.
Drawing upon the Hofstede Insights National Culture survey (The Culture Compass) data and some judicial rulings in China, this paper examines the legislative development and judicial approach to settle condominium disputes to explain and address the cultural orientation for future legal reform. This paper examines how the law reflects and responds to the cultural and social variations/interactions among the stakeholders, namely, local government, developers, homeowner associations, condo owners and property management agents.
Culture plays a significant role in shaping how condominiums are governed in China. This analysis can highlight the role of cultural factors that influence the success or failure of condominium governance and suggest ways in which governance structures can be adapted to reflect the legal culture of the community better. The emphasis on social harmony, respect for authority, relationships and networks and knowledge and expertise all contribute to a unique approach to condominium governance that reflects the values and priorities of Chinese society.
While much has been written on the importance of property rights to economic development, relatively little seems to be understood about processes of change in complex property systems, particularly in China, a socialist-transforming country. Specifically, there is a lack of reliable knowledge about the intricate relations between the structure of organizations for collective action and cultural orientations that practically guide interpersonal interactions in Chinese society. The question at the heart of this research relates to the condominium rules most suitable for an emerging Chinese private property market.
]]>This paper aims to adopt a comparative method using case law, statutes and secondary literature across both jurisdictions. This paper also draws on various theories of property ownership.
This paper conceptualises the legal relations embedded within condominium housing and the various theories of property ownership to ascertain how children’s interest fit within this framework. The laws of two jurisdictions, New South Wales and Singapore, are examined to determine how their strata law responds when children’s safety is at stake.
Drawing on pluralist moral theories of property law, the thesis advanced is that children’s issues within condominiums should not be subject to majoritarian rule especially when their safety is at stake. The paramount guiding value should be ensuring their safety within multi-owned housing communities. Using the law of two jurisdictions, New South Wales and Singapore, the central argument of this paper is that the law in these jurisdictions has rightfully adopted a protective approach towards children in multi-owned properties where their safety is at stake.
The literature on the law of multi-owned housing has largely focused on governance issues such as mediating between the majority owners’ interest with that of the minority owners’ interest. Children in multi-owned developments remain an under investigated area as children’s interests do not fit within the paradigm of majority versus minority interests. The paper advances the argument that children’s interest should be viewed through either a rights-based theory or pluralists’ theories of property law. Lessons from the New South Wales and Singapore experience are also drawn which might prove useful to other jurisdictions.
]]>High-density development requires large land parcels, but fragmented land ownership can impede redevelopment. While earlier compact city development in Sydney occurred on large-scale brownfield sites, redeveloping and re-amalgamating older strata-titled properties is now integral to further densification. The purpose of this study is to examine collective sales activity in one Sydney suburb where multiple strata-titled redevelopments and re-amalgamations have been attempted. The authors explore how owners navigate the process of selling collectively, focusing on their experience of legislation introduced to facilitate this process, the Strata Schemes Development Act 2015 [New South Wales (NSW)].
By reviewing sales listings, development applications and media coverage, and interviewing owners, lawyers and estate agents, the authors map out collective sale activity in a case study area in Sydney’s northwest.
Strata collective sales are slow and difficult to complete, even when planning and market drivers align. Owners find the Strata Scheme Development Act 2015 (NSW) difficult to navigate and it has not prevented strategic blocking attempts by competing developers. The long timelines required to organise collective sales can result in failure if the market shifts in the interim. Nonetheless, owners remain interested in selling collectively.
This case study is important for understanding the barriers to redevelopment to achieve a more compact city. It highlights lessons for other jurisdictions considering similar legislative changes. It also suggests that legislative change alone is insufficient to resolve the planning challenges created by hyper-fragmentation of land through strata-title development.
]]>Although the Singapore model of ethnic integration through its public housing programme is well known, the formula for replicating its success elsewhere remains underexplored. This study aims to identify the criteria for successful transplantation, specifically by identifying the housing tenure types that are most amenable to the implementation of the Singapore model.
Through a comparative study of two common law jurisdictions – Singapore and England – this article highlights the differences in their housing landscapes and how such differences impact upon the adoption of ethnic integration policies through housing. The article also unpacks, through a cross-disciplinary lens, the concepts of public housing and housing tenures, drawing heavily on socio-legal and housing literature.
The authors observe that the implementation of ethnic integration policies is best justified and most easily achieved in leasehold estates that exhibit a strong tenurial relationship with the state retaining a more than notional role. Public housing in Singapore being an exemplar of this model, the implementation of its ethnic integration policy is relatively straightforward. By contrast, the shrinking public housing sector in England means that adoption of a similar policy would have limited reach. Even then, the political–legal environment in England that promotes home ownership is potentially hostile to the adoption of such policy as it may be seen as an infringement of private property right.
The cross-jurisdiction comparison is supplemented by an interdisciplinary analysis that seeks to bridge differences in the categorisation of tenure in housing and law literatures so as to promote cross-disciplinary dialogue.
]]>The Recast Energy Efficiency Directive 2023 has defined the concept of “split incentive,” also known as “tenant-owner dilemma.” This dilemma refers to the situation where neither landlords nor tenants have incentives to invest in energy efficiency upgrades. Although the Energy Efficiency Directive calls Member States to overcome legal barriers to remove split incentives and to encourage retrofits, the list of possible measures is too vague. This paper aims to discuss tenancy law measures designed to increase the energy efficiency of residential housing and to detect which Member States have already addressed this phenomenon.
This paper analyses, from a civil legal perspective, the possible private law barriers arising from the tenant-owner dilemma when performing energy efficiency works in selected countries and proposes legal reforms in tenancy law and related policies to overcome them. To do so, this paper follows a legal-dogmatic and comparative law methodology.
This paper concludes that some tenancy law provisions, such as the possibility to increase the rent after energy efficiency renovations and long-term leases, may challenge the tenant-owner dilemma in private rented markets, thus promoting renovations and retrofitting for energy efficiency purposes. It also proposes other policies intended to increase parties’ willingness to undertake works.
More research on the economic and legal efficiency to regulate some of the civil law measures to challenge the tenant-owner dilemma should be necessary.
The civil law measures included in this paper may help national policymakers meet the energy efficiency targets, according to what is established in the Recast Energy Efficiency Directive 2023.
Based on the economic theory of the tenant-owner dilemma, this paper investigates the elements of tenancy law that may contribute to less energy-efficient homes, proposing policies for those countries interested in addressing the energy-efficiency challenge from a private law point of view.
]]>With the aim of monitoring the existing regulations that are applicable to community of owners facing delinquency, in view of the importance of this issue for the achievement of the Urban Agenda, the present study aims to analyse the most stringent and controversial measures available for the community of owners facing delinquency from a comparative perspective.
The present work addresses the recent legislative amendments that have taken place at national level in this field in several countries and analyses to what extent they have addressed the delinquency problem faced by community of owners.
The current paper shows that, in the end, legal certainty, the prospective legal and economic effects on mortgage lending and constitutional concerns are the underlying reasons behind the reluctance to implement some stringent measures to face delinquency. It also shows that recent amendments concerning alternative dispute resolution mechanisms are a missed opportunity.
Community of owners plays a key role in cities for the achievement of the Urban Agenda, so the periodical contributions from co-owners are paramount to the proper implementation of urban regeneration, energy efficiency and accessibility policies. To this end, the paper analyses existing regulations that are applicable to community of owners facing delinquency, which may increase in the coming years due to the current socioeconomic context.
This paper builds on existing research and goes one step further by addressing the recent legislative amendments that have taken place recently at national level in this field. These measures may serve as an inspiration to other EU legal systems.
]]>Poor municipal solid waste management is a major characteristic of urban development in Africa. In Ghana, local governments are mandated to ensure the collection, treatment and disposal of solid waste. However, this has been a herculean task for local governments in Ghana, owing to inadequate resources and weak technical capacities. This has prompted calls for, and actual involvement of the private sector through public-private partnerships (PPPs) in municipal solid waste management, particularly in the urban areas. This study aims to assess the roles, effectiveness and challenges of PPPs in urban waste management in the Sunyani municipality of Ghana.
Adopting a case study design, the study used a qualitative research approach to provide in-depth insights into PPPs in municipal solid waste management in the Sunyani municipality of Ghana. Therefore, key informant interviews and two focus group discussions were conducted.
The study revealed that some policies and actions of the local government (Assembly) do not positively facilitate the effective functioning of PPPs in municipal solid waste management. There is also lack of effective stakeholder consultation, collaboration and grassroot inclusion in the PPPs which affect the effective management of the increasing volumes of solid waste being generated within the municipality.
To achieve the objectives of the PPP arrangements, local authorities should initiate steps to effectively coordinate all the involved private companies. There must also be ways of involving the beneficiaries in the design and implementation of PPPs on waste management to allow for effective grassroots and participatory monitoring and evaluation.
The uniqueness of the case study being a mid-sized and secondary city in a developing country enhances the value of the findings and the application of recommendations in cities with similar characteristics and initiatives in improving PPPs in municipal waste management.
]]>Informal housing stands out as a major challenge surrounding the massive reconstruction of Syrian cities, devastated by a bloody war and a terrible earthquake. The purpose of this article is to assess the adequacy of the Syrian Law to adequate provide a solution to this problem.
With the purpose of informing the question, this paper offers a legal-institutional analysis of the informal housing phenomenon and the corresponding regulatory responses in Syria. A literature review is conducted, and functional analysis of the legal texts and their effective implementation is provided.
First, informal housing in Syria has been fostered by the existence of an erratic regulation, particularly burdened by the incoherence of passing repressive provisions against informal housing while master plans were conspicuously absent or incomplete. Second, the regulatory policy seems to be leaning toward the urban renewal option, indicating a supply-oriented housing approach that may face serious challenges due to the scarcity of capital. In this context, regulation should not underestimate any policy tools at hand (renewal and upgrading; with the contribution of public, private and cooperative sectors).
Although there have been several studies on informal housing in Syria, none has taken a legal institutionalist approach. Furthermore, this study offers an up-to-date account of the problem, taking into account the problematic after the 2023 earthquake and the content of Law 2/2023.
]]>The purpose of the paper is to examine the phrase “just and equitable”, and associated terminology, within New Zealand’s strata law, to inform other jurisdictions. In particular, this paper temporarily suspends the notion of a statutory hendiadys to consider what kind of justice is reflected in judicial consideration of the phrase.
This paper takes a mixed-methods approach, drawing on a combination of black-letter law, property law theory and insights from literary and philosophical analysis.
While justice is often considered as “treating like cases alike”, this is not apparent from this study. The analysis shows that different kinds of justice outcomes emerge, with some emphasis on justice as economic efficiency. In addition, the paper highlights the inherent uncertainty in what is “just and equitable” and how associated disjunctive phrases, such as “unjust or inequitable” are still treated as hendiadys, but are no more clear.
The research is limited to consideration of a single jurisdiction (New Zealand), though the useful degree of case law from this jurisdiction provides broad insight.
Among other things, the paper argues for further consideration of the usefulness of the “just and equitable” test in light of the kind of justice we want to achieve. The addition of mandatory considerations to existing statutory tests may allow more of a focus, beyond the exigencies of individual cases or narrow outcomes of economic efficiency.
While there is existing literature on the “just and equitable” phrase within strata law, the paper is the first, to the best of the authors’ knowledge, to provide an analysis focused on how suspending the statutory hendiadys normally inherent in “just and equitable” provides insight into the kind of justice that emerges from the application of this test within a single strata jurisdiction. As such, the paper provides lessons for other jurisdictions on how to improve relevant statute and case law outcomes.
]]>This paper aims to analyze regulation regarding sustainable construction procurement in Southeast Asia and provide a reconstruction of regulation regarding the sustainable construction procurement to prevent land degradation.
This was done through legal research methods, mainly historical and systematical interpretation. The approaches used in this paper are the conceptual approach, statute approach and comparative approach.
By analyzing the related legal norms, it can be understood that many nations in Southeast Asia do not have regulation regarding sustainable construction procurement. Between Indonesia, Singapore and Thailand, only Indonesia has a ministrial regulation that provides general norms regarding sustainable construction procurement. Regarding the reconstruction of regulation, the bare minimum standards consist of principle, indicators, pillar, the phases of the procurement, law enforcement, both preventive and repressive, and sustainable procurement committee.
This research is limited to regulation in Southeast Asian region. By analyzing the regulation, this paper will provide a reconstruction of regulations regarding sustainable construction procurement that will act as an ground rules. Having the same ground rules will create synergies between countries in Southeast Asia to apply the principles of sustainable procurement and move together toward to prevent land degradation.
To the best of the authors’ knowledge, this paper is the first systematic legal research that compares regulations from three nations in Southeast Asia regarding sustainable construction procurement and also the first paper to provide reconstruction of regulation regarding sustainable construction procurement to prevent land degradation.
]]>This paper aims to analyze the legal framework of land degradation in Asia and provide market shared liability as a new theory to solve a problem regarding the difficulty for judges to determine the percentage of compensation for corporations responsible for land degradation. This paper aims also presents a theory to solve the problem of the vacuum of legal responsibility theory, which can make corporations proportionally responsible in terms of causing land degradation.
This was done through legal research methods, mainly with systematical interpretation. The approach used in this paper is conceptual, statute and comparative approach.
By analyzing the related legal norms, it can be understood that in Asian countries, such as Indonesia, Thailand and Malaysia, there are regulations regarding land degradation. However, the regulations in these countries are not specific and tend to focus on nature conservation, which has an impact on handling land degradation. Therefore, it needs special regulation to deal with land degradation. One of the things that need to be regulated about land degradation is a market shared liability.
This research is limited to regulation in the Asia region. By analyzing the regulation, this paper will provide an analysis about the land degradation regulation mechanism in Asia and give an analysis about market shared liability as one of the solution to handling land degradation. Having the same ground rules will create synergies between countries in Asia to handle land degradation.
This paper is the first systematic legal research comparing regulations from three nations in Asia on land degradation and the first paper to provide market shared liability as a solution to handling land degradation.
]]>The purpose of this paper is to explore the problem of land degradation as a category of environmental terrorism, which has been increasing along with the rise of open pit mining and oil palm plantation activities.
This study uses a doctrinal approach that aims to find the best solution to address the problem of land degradation and environmental terrorism activities in Indonesia through a comparative legal study conducted with the handling of similar cases in Malaysia, which has almost the same character as Indonesia.
This paper finds that both Indonesia and Malaysia have enacted laws and regulations to address environmental concerns. However, it turns out that relying only on law enforcement is not an optimal solution. Addressing the problem of land degradation would also require the implementation of sustainable development practices, public awareness and cooperative dialogue.
This paper provides a new approach to answer the inclusion of environmental degradation as environmental terrorism, which should also be considered a crime against humanity.
]]>The purpose of this paper is to examine whether mandatory disclosure of information accompanying the sale of real estate achieves its aim of informed purchasers.
Using a case study approach focused on mandatory disclosure in South Australia data was collected from interviews and focus groups with key personnel in the property industry involved in the production of information required to fulfil vendors’ disclosure obligations.
The authors found that purchasers are ill-served by a long and complex form of mandatory disclosure with a short time frame that prevents the use of the information provided. Without good form design and increased digital affordances provided by the cadastral and conveyancing systems, mandatory disclosure is insufficient to ensure minimisation of information asymmetry between vendor and purchaser.
To the best of the authors’ knowledge, this is the first Australian qualitative study that examines the utility of mandatory vendor disclosure in real estate sales and the first to consider the impact of the digitalisation of cadastral and conveyancing systems upon the efficacy of mandatory disclosure regimes.
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