The Condominium Act was first enacted back in 1997, when blocks of apartments were still relatively new on the property market. Fast forward 20 years and blocks of apartments are popping up on every corner of the island while their condominiums are still being regulated by the same laws enacted 20 years ago.
In all fairness, the Condominium Act held up quite well considering its lack of updating, probably because it was drafted generically in order to cater for a wide range of scenarios, thereby also allowing the courts to interpret the provisions broadly.
One may start by looking at the procedural aspect, more specifically condominium litigation. The Condominium Act refers to various instances in which a matter can be referred to arbitration, most notably, upon disagreement for the appointment of an administrator or the rules of the condominium, and to appeal from decisions taken by the meeting of the condomini.
However, the Condominium Act refers to rather specific instances in which matters are to be referred to arbitration, leaving the rest of any other disputes which may arise relating to condominium unaccounted for, in the sense that one would have to refer the rest of the cases to the appropriate forum. A plausible solution to this would be for the law to subject all condominium disputes to mandatory arbitration.
While this will ensure more consistency in judicial decision- making, it would further encourage the condomini to address condominium matters, instead of leaving them to fall through the cracks. On the other hand, minor money claims in relation to unpaid contribution can always be referred to the Small Claims Tribunal, due to it being an efficient and non-costly procedure.
The legislator should consider including additional mandatory legal requirements without the possibility of derogation, such as the furnishing of the owners’ deed of acquisition to the administrator, the insurance of the condominium, which at present is only optional, and a provision specifying the maximum number of days that the services and the lift of a block may remain uninterrupted.
There are still a number of blocks without an administrator, a blaring infringement which is left unpenalised
The legislator should consider the possibility of banning developers from regulating the common parts in the contracts of sale unless they would be retaining ownership of the common parts themselves. To a certain extent, it is highly unreasonable and impractical for a developer, who is not retaining the common parts, to regulate the use of the common areas as it deems fit, binding the parties for all eternity, when the developer himself or herself would not even be subject to those rules.
Under Article 23 of the Condominium Act, any condominus have the right to challenge an oppressive rule; but what if that oppressive rule is found in the contract of sale and thus cannot be changed as easily as one would a condominium rule? It is therefore recommended that the rules are set out and agreed upon by those who will actually have to abide by them.
A lacuna in the present law that also needs to be addressed is regarding pending condominium contributions upon the sale of a unit. This issue may be regulated between the parties to the sale but there may be cases when it is not, and the condominium contributions remain pending with neither of the parties will take responsibility for the pending dues.
Generally, properties are hypothecated in cases of debts which are then subject to the droit de suite when the property is sold. However, the law is not clear whether condominium expenses are attached to the property or should be considered as services rendered to the individuals making use of the condominium. So, such instances must be catered for in the absence of an agreement to establish which one of the parties should pay such dues.
The role of the administrator has become a rather crucial one in these times and, therefore, it may be time to consider the role for what it really is. It is perhaps time to consider endowing the administrator with a legal personality, in that the title of ‘Administrator of Block X’ is created and that legal persona would have the right to defend or institute any cases on behalf of the block of flats.
The administrator would therefore not appear in his/her own name to defend the interests of the condomini but would institute proceedings as the administrator of the block. This will certainly facilitate court proceedings and ensure continuity in the eventuality that the administrator is changed mid-proceedings.
Lastly, the legislator should consider stepping up the enforcement of condominium law. It is worth noting that there are still a number of blocks which are without an administrator, notwithstanding the fact that there are more than the required units at law, a blaring infringement which is left unpenalised. While the above proposals are only the tip of the iceberg, they are undoubtedly a step in the right direction for the revamp of the present Condominium Act.
Tracy Cauchi, Partner, Cauchi Farrugia Advocates