Some may think that the defining of "Juristic Person Manager" is just so much nit-picking. Here's an example of just one way in which the distinction can be crucial:
Our condo has always operated with a Juristic Person Manager (JPM) who is authorized to scan documents for legality and sign in the name of the Condominium Juristic Person (CJPM). Simultaneously we have an office or building manager who takes care of routine business under the supervision of the Committee and the JPM. (We've tried management companies to fulfill this role, but with no success.)
Okay - The chairperson of the Committee took over the duties of the JPM when the previous JPM quit mid-year. He chaired the AGM and was subsequently voted in as the JPM at that meeting.
The Act says that neither the "Manager" nor Spouse may chair an AGM.
If the Act is referring to - for lack of a clearer term - the office or building Manager, no law has been broken. But if "Manager" means the JPM then the AGM would be invalid because the meeting was chaired illegally.
Although the definition section of the Act reads that "Manager" means Juristic Person Manager, elsewhere the usage of the term manager is clearly describing an office or building manager.
Controversial actions were taken and decisions made at this AGM which will be called to question. But no simple reading of the Thai Condo Act provides the information required to pin down whether or not the AGM was held legally.
This is only one example of a way in which a simple definition can throw a spanner into the works!
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Definition Of Terms In Thai Condo Law
Started by ripley, 2011-06-02 17:17
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79 replies to this topic
#77
Delight
Senior Member Posted 2012-05-09 19:35:03
I am curious to know which part of the Act are you referring to that references the Manager (i.e.JPM)as the building manager.
I would politely advise that that the building manager only reports to the JPM . Not the committee. The committee is simply a customer of the building manager.All the co -owners are customers of the building manager. If there is no separate building manager then the JPM carries out that role.The JPM is responsible for all elements of the Common area of the condo. The Act simply allows that some functions can be delegated i.e. to the building manager( conditions apply) The JPM must be an ordinary person-i.e absolutely no Juristic protection. All co -owners are included in the big scheme i.e. The Condominium Juristic Person and as such have some protection.No Individual is a Juristic Person.The name suggests that ,that could be the case. If one person is both JPM and chairman then he/she has no protection in his/her dealings as a JPM As far as chairing a general meeting the JPM (plus spouse) cannot chair the meeting. Given that the building manager is an extension of the JPM then the building manager cannot chair.Nor can his/her spouse if his /her has one -spouse that is. Most of the foregoing is bollocks if as you say the Act specifically refers to the building Manager. #78
ripley
Senior Member Posted 2012-05-11 11:44:58
The reference to "building manager" is my own - used (as you have used it) to describe the person who carries out the daily business of running the condominium. My complaint/confusion is that the Act does not have a separate title for this role, for which reason the lines are blurred and it's not clear to whom the various sections refer.
Sec.35 .....In the case where the manager is a juristic person, such juristic person shall appoint an ordinary person to be the person acting for the juristic person in the capacity of a manager. Sec.49 (2) states that no fewer than 1/4 total co-owner votes are required to stipulate the business which the manager may assign another person to perform "on his behalf". This would seem to back your view that the JPM and the "building manager?" are - for the purposes of a Gen. Mtng. - an entity barred from chairing an AGM. The Act (Sec.35) states that "the Juristic Condominium shall have one manager who ma be an ordinary person or a juristic person." and repeatedly refers throughout to "an ordinary person or a juristic person". Therefore, it seems logical that the term "juristic" applies both to the Condominium corporate as well as the owners. The Condominium corporate is "the juristic person", a co-owner is "a juristic person"?? Regarding the Committee, Sec.38 states it has "monitoring control" over the condominium corporate managements. For this reason, to me, it seems clear that the Committee is privy to every action of the JPM, etc. and has something to say about it. I would disagree with your statement that the committee, condo owners, etc. are merely "customers" of the manager. The manager - both the JPM and "building" manager are employees - that is, work for - the owners. Still - here I go again talking about a "manager" when the term "manager" is used so indiscriminately in the Act. And that is actually the only issue I'm seeking to clarify. #79
Delight
Senior Member Posted 2012-05-12 10:39:56
In response to Ripley-I submit the following.
TOPIC 1 Overview –Management of a Condo The Act structures a condo in a similar way as a private limited Company(PLC) i.e. Board---- CEO ----Shareholders Committee- JPM ------Co –owners All the decisions that the Board make are implemented by the Manager of the (Condominium ) Juristic Person(JPM). And as with a PLC the committee does not micro manage the JPM. Also again as with a PLC the committee remain even if the JPM goes. The Act details a list of Duties for the JPM –Section 36. The Board should measure JPM performance against this list. TOPIC 2 Sec.35 .....In the case where the manager is a juristic person, such juristic person shall appoint an ordinary person to be the person acting for the juristic person in the capacity of a manager. Confusing –I’ll say. The key here to replace the term’ Juristic Person’ with ‘External Management Company’. I will also substitute Manager for JPM Thus it now reads: Section 35 In the case where the JPM is an external management company, such an external management company shall appoint an ordinary person to be the person acting for that external management company in the position of JPM In other words the Land Office will only accept the name of an individual as the JPM .That name can be as a result of a local appointment or as the consequence of the appointment of external management company. In the case of the latter a name must be named by that external management company. That name will be registered at the Land office. That is the only name that they will have. Probably no reference to his employer. The JPM has no Juristic protection. Section 35 detail ensures this. Individuals are sometimes referred to as’ Natural, Ordinary or as Normal persons . What is consistent is that they have no juristic protection . TOPIC 3 Is a co –owner a Juristic Person? Simple answer –NO! I guess that the confusion arises because of the apparent over use of the term Juristic Person. In the UK for example the term Limited Liability Company is employed. It would appear that Thai Law uses the term Juristic person to refer to the same concept. So just as an individual cannot be a Limited Liability Company - a co –owner cannot be a Juristic Person. TOPIC 4 Delegation Sect 36 (last paragraph) with some detail from Section 49 added says:- (I have simplified the English) The JPM carries out all his duties. However the following duties can be delegated to one other person.
It is a convenient title so I will use it. The JPM reports to the committee directly with respect to all his duties including the building managers duties. The JPM is also a supplier to individual co –owners. These duties are typically delegated to the building manager .The building manager acts on behalf of the JPM. The JPM implements policy decisions agreed by the committee and as such is a supplier to the committee. Again these duties are typically delegated to the building manager. The building manager acts on behalf of the JPM .The customer of the JPM is the committee. Inevitably committee decisions will result in the JPM having suppliers report to him. (usually external suppliers but could also be internal suppliers ). Those suppliers will see the JPM (not the condo) as their customer . Again the task of managing all these suppliers is typically delegated to the building manager. The building manager acts on behalf of the JPM If co –owners require a particular service then that request goes to the JPM (or building Manager) The co –owners do not deal with the internal /external supplier directly. However bear in mind that the JPM is only responsible for Common Area. The co –owners take care of their private area /property and all that is contained within it. TOPIC 5 –Delegation too far With respect to a building manager chairing a general meeting. A JPM cannot delegate duties to a building manager –duties which the JPM is specifically barred from carrying out. Section 43 prohibits the JPM from chairing a general meeting. TOPIC 6 Definition and appointment of a JPM The JPM has the responsibility of managing and maintaining the common property and shall be empowered to perform actions to achieve this aim. All actions are subject to resolutions of the co-owners under the Act. The JPM has the right to delegate certain duties to another person. The detail of these delegated duties must be approved by at a legal general meeting. The JPM reports to the Committee. ------------------------------- The selection of a new JPM is made by the committee. This decision has to be approved at a legal general meeting .The actual process is to replace the current JPM with the new JPM. The acceptance winning vote of the change must contain minimum 25% of total building vote. The Land office must receive official notice of this change within 30 days of the vote. Trust that the foregoing helps #80
ripley
Senior Member Posted 2012-05-21 11:48:12
Thanks, Delight, for the well presented attempt to untangle the riddles in the Condominium Act!
Anyone else care to weigh in on this one? |
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