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| Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes |
Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
AUTHOR: RINI RASTOGI
What is Property Dispute? Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
A property dispute is a kind of legal disagreement between the parties over a certain type of property. Disputes may be related to anything like boundary lines, legitimate ownership, and lawful possession, these all are the most common reasons for property disputes.
Nature of Property Dispute-Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
A contract is concerned whenever land is purchased, sold (property dispute for sale), or leased(disputes between landowner and tenant). If somebody fails to fulfill their obligations, they'll be found in breach of contract, and also the different party might ask for damages to compensate them for his or her losses.
Various types of property disputes are:
Land Fraud-
In any sector, together with land, fraud will occur. Land fraud is when one party to a group deceivingly promotes their property and injures another party, like by suppressing facts relating to the property’s condition. Certify to avoid any controversial or disputed property.
Disputes Over Boundaries –
Boundary disputes with neighbors, when there’s a disagreement regarding wherever the property border is it’s common for neighbors to induce into fights. Property lines are often not marked, or a practical possible line exceeds the legal line
Disputes Between Co-Owners (Joint property possession disputes) –
family disputes over the property) A co-owner conflict can occur when co-tenants, joint tenants (property disputes between brothers and sisters), or partners disagree on a property problem.
Disputes over specific performance properties-
When a party to real estate dealing fails to perform an action stipulated within the contract, a particular performance property dispute (land dispute law) would possibly develop. Not like different sorts of contract disputes, explicit performance needs the breaching party to fulfill their obligations instead of trying to settle the disagreement through the utilization of cash.
Mechanisms for resolution of property disputes in India-Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
The very first step for the resolution of a property dispute is to settle the major issue by giving the money. But sometimes negotiation is not enough and the party has left no option other than to file the suit. In most property-related disputes, an award of money damages will resolve most of the property dispute. For the losses, an award of damages by way of money is really equivalent to compensation. Other possible kinds of remedies that might be available in property disputes include:
1. Injunction
2. Alternative Dispute Resolutions
3. Specific performance
4. By paying fees or fines
Pendency of property disputes in litigation-Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
If we look at the average pendency of land and property disputes in India, it is 20 years. Looking at the numbers, acting on solutions -administrative, legislative, and judicial to touch upon each the incidence of land conflict and pendency of cases is central to any modification in a case wherever, for example, competing policies offer for eviction and regularization of unauthorized occupants at an equivalent time.
Clear land administration may end up in elementary transformation, with a spotlight on new technology for land surveys and change records.
It’s conjointly imperative to arrange the low judge-to-people ratio and enhance the capability to measure social control, in conjunction with relooking at laws that are in conflict with administrative selections.
The existence of diverse, conflicting laws arising from historical narratives and current policies governing property rights; and body factors like the administration’s failure to suit these laws.
The pendency of those land dispute cases, in turn, is due to judicial factors – there are legal and evidentiary barriers in delivering land dispute cases to court, and the lack of judicial capability prevents fast resolution.
Mediation in property disputes in India-Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
Through the process of mediation, one can easily solve the disputes of their property among their members. The mediation can be followed when the Court refers the parties for mediation or when both parties agree for settling the dispute by the agreement. Mediation in India is divided into 2 kinds that are typically followed:
1. Court referred Mediation:
The court might refer an unfinished case for mediation in India under Section 89 of the Code of Civil Procedure, 1908. This sort of mediation is usually employed in marital status disputes, significantly divorce cases.
2. Private Mediation:
In Private Mediation, qualified personnel works as mediators on fixed-stipend terms. Anyone from courts, to the final population, to corporates similarly because the government sector, will appoint mediators to resolve their disputes through mediation.
Advantages of mediation in a property dispute-Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
Mediation helps both parties focus on communicating effectively with each other and coming to a negotiated settlement that works for all involved.
Mediation involves using a trained, neutral mediator to interact with the conflicting parties and to assist them work towards finding a solution that is acceptable to both sides.
Resolving disputes through mediation, however, can often be much faster and much cheaper than going to trial.
The mediator works with the parties to try to find an answer to the problem, but with no guarantee that the issue will be resolved. This can mean that both parties have more control over the resolution of the dispute, and are not forced to accept the result with which they are not happy.
Landmark case summary-Property Dispute Mediation- An Alternative Dispute Resolution and Conflict Resolution Technique in Property Disputes
1. In the historical and landmark case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd [2010(8)SCC24], the Supreme Court observed that all cases relating to trade, commerce, contracts, consumer disputes, and even tortious liability could normally be mediated.
2. In the case, Perry Kansagra vs. Smriti Madan Kansagra [SLP(C) No.9267 of 2018] the Court held that the process of mediation was founded on an element of confidentiality. Mediation stands on a totally different standing as against regular judgment processes.
Instead of an adversarial stand in judicial proceedings, the idea of mediation was to resolve a dispute at a level that was amicable rather than adversarial.
3. In the case, Salem Advocate Bar Association vs. Union of India (UOI) [AIR 2003 SC 189] it is quite obvious that the rationale behind Section 89 has been inserted is to try and see that all the cases which are filed in court need not essentially be determined or decided by the court itself.
The Alternative Dispute Resolution (A.D.R.) The mechanism as contemplated by Section 89 is arbitration or conciliation or judicial settlement including settlement through Lok-Adalats or mediation. Section 89(2) (d), therefore, contemplates appropriate rules being framed with relevance to mediation.
