The Superintendent of Land Registration: the tribunal most apartment owners have never heard of

The Superintendent's jurisdiction, and when it is exclusive

Section 72(a) of the Land Law, 5729-1969, provides that a dispute between apartment owners in a condominium concerning their rights or obligations under the by-laws, or under a series of sections of the Law, shall be decided by the Superintendent of Land Registration. This is exclusive jurisdiction: the Magistrates' Court will not hear such a dispute.

Alongside it there is concurrent jurisdiction. Under section 72(b), a dispute concerning trespass on another apartment or on the common property may be heard, at the plaintiff's choice, by a competent court or by the Superintendent.

Section 72(c) extends the application to a person occupying an apartment on behalf of its owner, to a person holding himself out as the owner, and to a long-term lessee. In other words, a tenant too may find himself a party to such proceedings.

Who may bring proceedings

Section 73 provides that any apartment owner or other party to a dispute within the meaning of section 72, as well as the condominium's representative committee, may bring a dispute before the Superintendent. This is why the house committee can sue for a maintenance debt on behalf of all the residents, without each resident having to be a plaintiff separately.

Which disputes actually come before the Superintendent

• Maintenance debts owed to the house committee: section 58 provides for participation in expenses in proportion to floor area, unless a different rate is set in the by-laws. This is the most common cause of action.
• Repair of defects in the common property: damp in the roof, the external walls or the stairwell, with the definition of common property in section 52 as the starting point.
• Attachments and the common property: section 55 provides that a transaction in the common property separately from the apartment has no effect, and that stairwells, lifts, shelters and installations serving all the residents cannot be attached to an apartment.
• Amending the by-laws: section 62(a) allows an amendment by a majority of the owners of apartments to which two thirds of the common property are attached, but attaching a particular part of the common property to a particular apartment requires the consent of all the apartment owners.
• Extensions and building rights: section 71B sets a majority of three quarters of the apartments and two thirds of the common property, and regulates balancing payments to an apartment owner who is adversely affected.
• Trespass: an occupied parking space, a storeroom that has been taken over, or an enclosure extended into the common property.
• A claim against a refusing resident in TAMA 38: section 72(a) also refers expressly to the Land (Reinforcement of Condominiums against Earthquakes) Law, 5768-2008, under sections 5 and 5A of which the Superintendent is empowered to approve the works even without the consent of all the apartment owners, on a claim by the owners of two thirds of the apartments and two thirds of the common property.

One important qualification regarding the last item: it applies to a reinforcement plan, not to urban renewal by evacuation and reconstruction (pinui binui). A claim against an apartment owner who refuses an evacuation and reconstruction transaction is filed with the court under section 2 of the Evacuation and Reconstruction (Promotion of Evacuation and Reconstruction Projects) Law, 5766-2006, on the ground of unreasonable refusal. Within a reinforcement plan there is a further distinction: for reinforcement works that do not add apartments, an ordinary majority decides, and it is in fact the objecting apartment owner, claiming substantial harm to his rights, who applies to the Superintendent.

How the hearing is conducted, and how it differs

Section 74 confers on the Superintendent hearing a dispute all the powers of a Magistrates' Court judge hearing a civil action. In other words, this is not an advisory committee but a judicial forum in every respect.

The significant difference lies in section 75: the Superintendent may depart from the rules of evidence and procedure if satisfied that doing so will assist in uncovering the truth and doing justice, provided that the reasons are recorded. This flexibility is what makes proceedings shorter and less costly, particularly in disputes where the parties live in the same building and will go on doing so after the judgment.

Section 76 completes the picture: a decision of the Superintendent, and an interim order given by the Superintendent, have the same status as a judgment or interim order of a Magistrates' Court, including for the purposes of the Contempt of Court Ordinance. The decision is enforceable through the Execution Office.

Appeal

Section 77 provides that a party who considers himself aggrieved may appeal to the District Court within whose jurisdiction the condominium is situated. In an appeal against a decision on a matter of trespass, the District Court sits as a bench of three judges. The judgment on appeal may be further appealed to the Supreme Court, by leave only.

Filing an appeal does not stay the execution of the decision, unless the Superintendent or the court orders otherwise. This is a point to prepare for in advance.

Even in a building not yet registered as a condominium

A common mistake is to assume that as long as the building has not been registered as a condominium, there is nowhere to turn. Section 77B, in the chapter dealing with buildings not registered as condominiums, applies sections 72 to 77 to such a building as well, with the necessary modifications. In other words, the Superintendent's jurisdiction applies there too.

Bottom line

Where the dispute is between neighbours, over property that they all continue to share, the dedicated forum is usually preferable: it knows the subject matter, its procedure is more flexible and it reaches a decision more quickly. The first question in any condominium dispute is not how much to claim, but where.

Nothing in this article constitutes legal advice or a substitute for it, and every case is assessed on its own circumstances.