AR 8.

2
PROFESSIONAL PRACTICE
8th Semester | Session 05
Varaha College of Architecture & Planning
Arbitration
 Disputes During Project

• Payment and fees issues

• Bill clearance
• Dispute over the contract

Client / Owner Architect Contractor

• Payment and fees issues

• Lack of Supervision
• Quality issues
• Payment and fees issues
• Construction defects
• Professional Service
• Rectification of defects etc
• Delay in project
• Lack of supervision
 Modes of Settlement of Disputes

• Capitulation: Weaker party give-in; to retain goodwill/ long-term

business relationship with stronger party
• Negotiation: Both parties sink differences and try to reach amicable
settlement
• Arbitration: Disinterested/ impartial third party appointed to
adjudicate
• Litigation: Disputes taken to court resulting in abnormal delay and
heavy expenditure
• Dispute Resolution Board: Board constituted on award of contract to
resolve disputes as and when they arise
 Resolving Disputes
(Between Owner & Contractor)
Project Architect
• The quasi arbitrator
• The architect must be fair
and should obtain the
complete views of both
sides before making the
decision
• The parties acceptance of
the architect's decision is
usually the most
economical way to end
the controversy
• 30 days is the time period
for solving the dispute
Conciliation / mediation Arbitration
• If the parties cannot
mutually accept the
architect's decision, then
the claim is referred to
mediation
• Mediation is a procedure
in which a mutually
acceptable disinterested,
impartial intermediary
meets and talks with both
sides, together and
seperately, and assists
them in their negotiations
• The mediator does not
impose any decision on
the parties but instead
helps them to arrive at
their own voluntary
resolution
• If the dispute cannot be
settled by the architect's
decision or mediation,
then it will be subject to
arbitration
• It is a method of resolving
disputes between two
parties by a third party
(arbitrator)
• 30 days is the time period
for solving the dispute
• Arbitrator's decision is
final
 Arbitration

• Method of resolving the disputes outside the court

• Arbitration is a system whereby a disinterested neutral person (or
panel of three) hear(s) the evidence and arguments of both sides in
dispute and then makes a decision
• Unlike litigation, arbitration is private and confidential and arbitral
awards are not published
• It's an old established practice in every civilized society (eg. Village
panchayat system)
 Arbitration Vs Litigation

Arbitration Litigation
(conventional court system)
Informal Formal
Less expensive (arbitrator fees & logistics, Expensive
stenography)
Quicker (lesser than the trail) Time consuming
Relation between parties remains cordial Strained relation between the parties
Civil Civil & Criminal
Confidentiality / private between the parties Open to public in a court room
Usually binding & no appeal possible Appeal is possible
Parties select specialized highly technical arbitrators Court appoints judge, parties don't have much input
so ending up with usual judgement
 Arbitration Agreement

• An arbitration agreement is a written contract in which two or more

parties agree to settle a dispute outside of court
• Arbitration agreement is ordinarily a clause in a contract document
• The dispute written on the agreement may be about the performance
of a specified contract, a claim of unfair or illegal treatment in the
workplace, a faulty product, among other various issues
• The arbitration and conciliation act 1996, regulates domestic
arbitration in India
 Arbitration Binding

• Binding arbitration involves the submission of a dispute to a neutral

party who hears the case and make a decision
• Appeal is not possible in future if arbitration is binded
• Arbitration takes the place of a trail before a judge or jury (arbitrator)
• Additionally, the grounds for appealing or setting aside the arbitration
decision are very limited and many times may not be available at all
• If a person signs a contract that has a mandatory, binding arbitration
agreement, he gives up the right to go to court.
 Arbitration Tribunal

• An arbitral tribunal is a panel of one or more adjudicators to resolve a

dispute by way of arbitration
• It consist of a sole arbitrator, or two or more arbitrators (joint
arbitrators) which might include either a chairman or an umpire
• Ideal composition of an arbitral tribunal should include at least one
economist, particularly in cases that involve question of asset or
damages valuation
 Arbitration Proceedings

• Filling and initiation for arbitration

• An arbitration case begins when one party submits a demand for arbitration
to the CoA
• The other party (the respondent) is notified by the CoA and deadline is set for
response
• Arbitrator selection
• The CoA works with the parties to identify and select an arbitrator based on
the criteria determined by the parties
• Preliminary hearing
• The arbitrator conducts a preliminary hearing with the parties, to discuss the
issues in the case and procedural matters, such as witnesses, depositions,
sharing information and other matters.
 Arbitration Proceedings
(Contd...)

• Information exchange and preparation

• The parties then prepare for presentations and exchange information
• Hearing
• At the hearing, both parties may present testimony and evidence to the
arbitrator. Unless the case is very complex, this is usually the only hearing
before the arbitrator
• Post hearing submission
• After the hearing, both parties may present additional documentation, as
allowed by the arbitrator
• The arbitration award
• Finally, the arbitrator closes the record on the case and issues a decision,
include an award
 Arbitration Award

• It refers to the decision made by the arbitrator in an arbitration

proceeding. It is similar to a judgement in the court of law
• Award is of a non-monetary nature where all of the claimant's claims
fail and thus no money needs to be paid by either party
• Characteristics of a Good Award
• Sticking to the scope of defined issues
• Sticking to Time Limit
• Unambiguous, unconditional, complete and clear decision
• Judgement and decision made by the arbitrator alone
• Complete application of Arbitrator mind, expertise
 Role of Project Architect & Excepted Matters

• Architects Interpretation
• Drawings furnished to the contractor by the project architect, the decision of
project architect or his interpretation of his drawings will be final
(discrepancies occurred may be related to scale of drawing, dimension or
certain finishes)
• Architects Instruction
• Architect is empowered to issue instructions to contractors from time to time,
if the instruction is given orally or on telephone, that has to be confirmed in
written format
• Architects field organization & equipment
• If there is a dispute about the manner of doing any work or provision of any
equipment or tools for a particular job, the decision of architect is final
 Role of Project Architect & Excepted Matters
(Contd...)

• Assignment & Subletting

• This clause states that the contractor will seek architects permission to either assign
or sublet a part of work. Architects will not unreasonably withhold such a permission,
but if he refuses to give such a permission, his decision is final. Contractor will oblige
to carry out that particular work himself or find another agency acceptable to project
architect.
• Sub Contractors
• Main contractor is responsible for coordination of work of all sub-contractors who
are involved in the project with the knowledge and consent of the project architect
• Under certain circumstances the project architect can advise owner to issue direct
payments to sub-contract and deduct the same from main contractors bills
• Providing facilities like water, electricity, scaffolding, sanitary facilities, workers
storage facilities at the site shall be by main contractor to all sub-contractor.
 Role of Project Architect & Excepted Matters
(Contd...)

• Material & Workmanship

• Regarding the quality of material, workmanship of various parts of building
relating to defective work, level, color shades etc. decision given by the
architect is final.
• Extension of Time to Contractor
• There are many grounds on which the contractor, request extension of time
• Usually 5 out of 10 are such that, architects decision is final
• Reasons where due consideration shall be made
• Force Majeure
• Particular superior force prevents the contractor from fulfilling his duty
• Eg: extraordinary occurance which couldn't have been foreseen & which couldn't have been
guarded like natural disasters, storm, earthquake, tide etc.
 Role of Project Architect & Excepted Matters
(Contd...)

• Exceptionally inclement weather

• If the disruption caused by weather is on an unprecedented scale then only it is termed
exceptional. Same applies to heat waves or snowfall etc.
• Civil Commotion, Strikes etc
• Transport workers strike, railways strike, construction workers strike, political, social violent
disturbance can paralyse the entire construction industry
• in above cases request for extension of time is valid
• But if there are strikes which do not affect construction activity, there cannot be grounds for
granting extension of time
• Delay on the part of nominated sub-contractor or nominated supplier
• Claiming of extension of time may be due to delay by either sub-contractor or supplier, same
may be decided by the project architect
• At times delay on part of sub-contractor or supplier may not affect the progress of certain
types of work. In such case, project architect would be justified if he refuses extension of time.
 Role of Project Architect & Excepted Matters
(Contd...)

• Delay on account of artists and tradesmen engaged by the owner

• Specialized works like signage, murals, display signs, sculptural panels, decorative metal works
etc. the owner employs the renowned artists or specialized tradesmen and agencies.
• Delay caused by such agencies may not affect the work of main contractor, even if it does, to
what extent the contractor should get extension of time will finally depend upon the project
architects judgement.
Easement
 Easement Right
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it.

PROPERTY A PROPERTY B

Dominant Heritage Servient Heritage

Land on which the beneficial
Land on which the easement is R
created
enjoyment has been created O
(Property A is accessing road through
(Property A is enjoying the property B
property B for 20 years, so easement A
to access his plot)
rights are created on Property B)
Owner of Dominant heritage is called D
Owner of Servient heritage is called as
Dominant Owner
Servient Owner

Right of Way (Path used by the owner A for more than 20 years)
 Easement

• Easement plays an important role in valuation of properties and

planning & design of buildings affected by easements
• Easements are certain rights connected with enjoyment of immovable
property
• It is a right or obligation, arise as a result of local or general customs
• It is a right of the owner for beneficial enjoyment of easement land
• The Word “land” in such cases includes things which are permanently
attached to the land such as buildings, trees, compound walls and
other features
 Easement Rights

• Easement by Prescription
• It is a type of easement where the Owner allows people to pass through his land without any objection
or obstruction for a continuous period of 20 years or allows the neighbour to enjoy light and air from his
property
• Easement by Express Grant (Covenant)
• It is a type of easement where Owner permits people to pass through his land with full knowledge and
consent or creates some kind of right through a written agreement
• Easement by Implied Grant
• It is a type easement where Owner does some kind of act which implied creation of certain right over
his property.
• For eg. when an owner sells a rear portion of the property which does not have an independent access
it is implied that he will permit the purchaser to pass through his land
• Easement by Custom
• It is a type of easement where people enjoy certain rights to make use of a piece of land for a social
activity, year after year (20 years) as a custom (eg. such as exhibition grounds or festival grounds)
 Types of Easement: Continuous Easement

• A Continuous easement is one whose enjoyment is continual without

the act of man
• Examples
• Right to discharge rain water
• Receive light and air from neighbouring land
• Laying of drain line
• Laying of services like electric or telephone cable through servient heritage
 Types of Easement: Discontinuous Easement

• Discontinuous easement is the one that needs the act of man for its
enjoyment.
• A right of way acquired by Property A over B is a discontinuous
easement
• If Owner A walks in Property B, it is taken for enjoyment of easement
right, but his walking may not be a continuous process, it happens
few times a day
• If Owner A builds a proper road through Property B without
knowledge and consent, it become continuous easement
 Types of Easement: Apparent Easement

• An apparent easement is something the existence of which can be clearly seen

with ease, upon careful inspection by a competent person
• An easement of light and air is an apparent easement because the existence of
ancient light can be seen
• Discharge of rainwater from Property A roof to Property B is an apparent
easement because one can visually see rainwater falling into Property B
• Construction of tar road over Property B is an apparent easement, however if it is
just a pathway, then it is non-apparent easement
• An open drain passing through Property B land is apparent easement but
underground drain or service lines are examples of non-apparent easement
unless man-hole or chamber is seen in Property B land
 Types of Easement: Permanent Easement

• It is an easement which can be enjoyed by the dominant owner

permanently and without interruption caused by the servient owner
• It can be created in several ways, including through negotiation, by
implication, by necessity, by adverse possession or by condemnation.
• For eg: easement of light and air is enjoyed as long as the wall in
which ancient light is situated is intact
• Certain easement will also fall under permanent easement
• Right to perform religious activities
• Right to catch fish in neighbour pond
• Right to fetch water from the natural source or well etc.
 Easement of Right of Way - Express Grant

• Right of pass through someone else's property is acquired either by express grant or through
prescription
• When a person uses a portion of land without the knowledge & consent of its owner, such as
pedestrian pathway or for plying any vehicle for a period of 20 years without even once being
prevented from doing so, then the person acquires an easement of right of way by prescription.
• Servient owner is obliged to keep that portion of land free for movement of dominant owner's
vehicles
• Servient owner cannot dig trenches or cause any kind of obstruction to dominant owners right of
free movement
• Easement can be extinguished if both the owners agree to do so in writing
• If mutually agreed the size and position of affected strip of land can be altered, to allow servient
owner to develop his remaining portion of land in a desired manner
• At times servient owner may be required to pay financial compensation or make other kind to
extinguish the easement
 Easement of Right of Way - Implied Grant

• Right to pass through someone else's property is acquired also

through an implied grant
• For eg: when a person sells a portion of his land which does not have
direct access of it's own, it is implied that he would permit the
purchase to pass through his remaining portion of land
• Such a right is given in the conveyance deed itself
• Even it is not expressly written in the conveyance deed it is implied, as
no person can sell a portion of land without gaining access to it
 Easement of Light and Air

• Every owner is entitled to receive light and air for his building which
could come to his land in a natural way
• Each owner has to build his building in a manner which will ensure
light and air from his own property
• Right to acquire light and air from the neighbour land is a prescriptive
easement
• If owner A constructs building touching his boundary and receives
light and air from neighbouring B property for a period of 20 years, he
acquires the easement of light and air
 Easement of Light and Air

• The opening in owner A building becomes “ancient lights”

• Ancient light is nothing but when an owner acquires easement of
light and air through the openings (windows, openings with or
without grills) in the walls deriving light and air from the neighbors
property
• Once ancient light easement is acquired, Owner B is obliged to
develop his own property in such a way that the light and air enjoyed
by owner A is not affected.
 Easement in Joint Property

• If a land belongs to two or more owners - all have the same rights and
privileges of ownership and enjoyment of the property, hence no
single owner can claim any exclusive easement
• Projection of eaves
• If the eaves of roof of one owner projects over the land of another for a
continuous period of 20 years, it amounts to a prescriptive easement
• The servient owner cannot compel the dominant owner to remove the
projected eaves
• Servient owner is required to allow him to right without any obstruction
 Easement in Joint Property

• Party Wall
• A wall standing between two houses which is their common boundary is
known as a “party wall” (generally common owned)
• Since the wall is jointly owned, one single owner alone cannot enjoy any
exclusive easement
• If one owner raises the height of a party wall with the consent of the other,
he doesn't derive any exclusive right over it, other owners also has the same
right as the one who raised it.
• Neither owner can provide any opening in the party wall without the
permission of the other
• Even when one owner wants to carry-out repairs or reconstruction of any
kind with in his portion, it is his responsibility to ensure that the party wall is
not endangered in any manner
 Prevention of Easement of Light & Air

• Owner B realizes that neighbour A is building a wall close to Property

B boundary with openings in it to derive light and air, from his
property, then he has to sign a written agreement with Owner A that
he wont claim easement of light and air in future.
• By doing so owner A can enjoy light as long as owner B doesn't build
any building in his land
• If Owner A refuses to sign agreement, Owner B has no other remedy
but to erect a screen (temporary or permanent) in his own land with
his own money to prevent owner A from acquiring easement
 Prevention of Easement of Right of Way

• Owner B identifies that Owner A or public is

passing through his land. He must erect a
fence around his land to prevent people
from acquiring easement. Warning signage
needs to be displayed along the fence
• In spite of doing all the above, if still people
pass through Property B, then he might
have to file a police compliant and get them
arrested. Police complaint records,
photographs will help in preventing the
easement
 Protection of Easement of Support

• Owner B wants to provide a basement in his own plot. He must

construct a retaining wall in entire stretch of Property A so that the
compound wall is not affected
• If Property A building is too close to boundary he must provide
shoring for Property A building and support trees in Property A
compound so that there is no sinking of foundation / plinth or
uprooting of trees
• It is also advisable to insure against accidental damage to
neighbouring building
 Prevention of Easement of Services

• Owner B finds that owner A is providing a drain or a water pipe or an

electrical cable through his land. He can physically remove all such
things from his land.
• If owner A still persists in his action owner B can raise a complaint as
a last resort and can take the matter to the court
• If however owner A has acquired easement he will have to divert
drain at his own cost without putting Owner A to any inconvenience
• This can be done by first laying the drain in the new position.
Connecting it with old drain in a convenient position and then
disconnecting and removing the old drain
• Same procedure is applied to any other services.
 Extinction of Easement

• Easement can be extinguished by the dominant owner, by release to

the servient owner
• This can be done through an agreement in writing preferably on a
stamp paper
• It is necessary to register such an agreement. Such release of any
easement can be entirely voluntary or it can be due to some
compensation being paid by the servient owner
• This kind of release is called as express release
 Extinction of Easement

• Some of the ways of extinguishing easement are:

• The dominant owner makes permanent changes like shifting of wall altering
the position of ancient lights; or closing the ancient light permanently. Such
acts amount to release of easement by the dominant owner
• If the dominant owner gives up the right of way for a period of 20 years, it
amounts to extinction of easement
• If the dominant owner changes the over hang of his roof and the rain water
stops falling in the servient heritage, it leads to extinction of easement
• If the dominant owner constructs a new drain in his own property or lays
cables in his own land and stops taking advantage of the old drain or cable
• As a result of availability of piped municipal supply or bore well sunk by
dominant owner, he stops using well water from the servient owners land
 Extinction of Easement

• If the easement necessity is extinguished when the need for such easement
comes to an end. For eg: a land is inaccessible at the time of sale, but new
road has been proposed which gives direct access to Property A
• An easement is extinguished when either the dominant or servient heritage is
completely destroyed due to any natural disaster. However, the easement is
revived if the property is restored within a period of 20 years
• An easement is temporarily suspended when either the dominant or servient
owner occupy each other heritage for a limited period
• An easement is extinguished when the dominant owner acquires ownership
of the servient heritage
• All easements extinguished when the government acquires any land after
paying compensation to the owner and all the interested parties who claim
easement to it