The building collapse incident on Ma Tau Wai Road in Kowloon has aroused public concern over the issues concerning the redevelopment of old areas, and the management and maintenance of old buildings. In terms of the redevelopment of old areas, the government has taken immediate action to redevelop Ma Tau Wai. I welcome this decision.
But the redevelopment issue is less complicated than the one of proper building management and maintenance. Under the current system, the Lands Tribunal is the major channel for different parties seeking to settle disputes concerning property, such as issues of ownership and maintenance costs. Unfortunately, the Lands Tribunal is governed by the judicial process. Aggrieved parties may lodge an appeal with the Court of Appeal and even the Court of Final Appeal if the previous court dismisses their case. Judicial proceedings, however, are very expensive in Hong Kong. Legal fees, court costs, document fees and other relevant expenses can bankrupt an ordinary family.
Currently, legal aid is available for any person whose financial resources do not exceed HK$175,800. Yet, the legal aid income configuration takes into account a person's monthly income and other available assets. This means that an average person with basic means can very easily exceed the legal aid limit and be disqualified from receiving benefits. So most middle-class families cannot afford to pay for litigation on their own. Furthermore, most building disputes usually commence with a relatively small amount of money in question, but soon expand into massive disputes involving frighteningly large legal costs that easily surpass hundreds of thousands of Hong Kong dollars. When the dispute reaches such a costly stage, the small owner stands to gain nothing even if he or she wins the lawsuit. I have dealt with many cases involving building disputes. The pain of a lengthy and costly litigation for an ordinary family is unimaginable. Sometimes, the overwhelming stress of litigation can have results as tragic as divorce for a family.
Some legislators have proposed that the government create a "building affairs tribunal." As mentioned, a tribunal guided by the judicial process is not necessarily the best and most economic avenue for people seeking recourse when solving disputes.
The current practice used in business or trade, which involves using an arbitration mechanism, could be useful in the process of settling building disputes. This approach is more effective than litigation because arbitration is a terminal process. On the other hand, mediation or arbitration can save time and money for the non-rich - because their cost is controllable and predictable.
Mediation and arbitration are also better ways to solve disagreements between property owners. Not only do they safeguard the rights and interests of small owners, they also avoid the unnecessary delay caused by court proceedings and expedite the pace of redevelopment. Such processes deserve the government's thorough consideration.
The author is a legislator and associate professor of the Law School of City University of Hong Kong.
(HK Edition 03/11/2010 page1)