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[justcruisin]

I know here in CM that a lot of condos have been bought in foreign names by proxy. It is legal as the law simply states that that the funds must be transferred from overseas. Opens another can of worms that the land office don't even know about.

I know of seven units in one building purchased by one person that has never been in Thailand.

Is it a good thing that they actually allow people from overseas to buy through an agent without ever being here or never will come here ?

[ripley]

Considering the number of owners present and accounted for in most condos who never attend meetings, pay fees or take any interest in the community as a whole - I can't see that they're any different from the absentee owners you mention.

[ripley]

Johnny_Aloha: "I do not agree and the Land Office in Pattaya also does not agree."

Sorry - "agree" with what?

I've been perusing J. Aloha's work & referring to the translation of the 2008 Thai Condominium Act with amendments (B.E.2551) included. Just started in earnest so brain spinning at times. My thoughts thus far upon revisiting certain issues:

The 2008 Act w/ amendments states in Sec.48 - #4 that a 50% of total co-owner votes is required to pass "an alteration on or a change in the ratio of the common expenses in the Bylaws defined under sec. #32. I read that as "an alteration on OR a change in the ratio of the common expenses in the Bylaws ...etc. This seems an important distinction.

A Special Assessment is an alteration on the common expenses, is it not? As is a rise in Maintenance Fees?

Question: Section 32 mentions "other statements prescribed under "Ministerial Regulation". Can anyone tell me what the Ministerial Regulations are and where they are to be found? They're obviously different from the Condo Regulations (Bylaws).

One thing that glares out in the Law is the power, use and misuse of a Condominium's Regulations/Bylaws. These are some very mean monkeys. They very definitely affect procedures and policies, including those related to Maintenance, Sinking and Special Funds. I'd suggest that every owner obtain a copy of the original Bylaws written at the inception of the Condominium, then compare them to the current Bylaws. If they are different, I'd recommend checking the minutes of past AGMs for evidence of votes to alter them and the registration of the alterations with the Land Office.  Recent experience teaches me that Condo administrations have a tendency to alter the Bylaws without regard to proper procedure which, as we know, includes the votes of 50% of total owners at an AGM.


Lots of people have quotes at the bottom of their posts. Here's one (paraphrased) I came across recently:
"People will tolerate being bitten by a wolf, but are enraged when bitten by a sheep."

Edited by ripley, 2012-02-27 00:06:07.

[Delight]

Ripley states:
The 2008 Act w/ amendments states in Sec.48 - #4 that a 50% of total co-owner votes is required to pass "an alteration on or a change in the ratio of the common expenses in the Bylaws defined under sec. #32. I read that as "an alteration on OR a change in the ratio of the common expenses in the Bylaws ...etc. This seems an important distinction.

A Special Assessment is an alteration on the common expenses, is it not? As is a rise in Maintenance Fees?

This the way that I see it:

Common Property –Ownership and Maintenance .
Section 14 details the rules for Ownership of Common property –these rules   are fixed .

Section 18  details the rules for Co –owner Payment to the Maintenance costs of Common property.
This states that the ratio of who' pays for what' has to be detailed in the Regulations. The acceptance of any change in   this   detail   must have a  minimum 50% vote(in some circumstances 1/3 of the total building vote).
The ratio of who pays what in respect of maintenance of Common property is detailed in the initial set Regulations. Typically the cost is proportional to ownership of Common property. The ownership is defined as the space of a condo unit as a proportion of the total space of  all the condo units . This is as per the detail in Section 14.
If the Regulations do not detail maintenance fees(illegal) then co –owners will pay as per the ratio of ownership –as detailed in Section 14.

Any other funding requirement  –assessed and detailed as being special -can be generated with a simple majority vote at a  legal
Co –owners meeting  (i.e. AGM or EGM)
Also:
Every unit has to owned by somebody or some company. Whoever owns must pay.
Section 32-paragraph 4- specifies that any ‘up front ’fees (ie an initial  Sinking fund  and the 1^st payment to maintenance fees) has to be detailed in the Regulations.

[ripley]

dam_n. Just wrote a post & lost it while checking a reference. Annoying.

  Suffice to say that I disagree with arguments so far presented that increases in Maintenance Fees and Special Assessments can be achieved with a simple majority of votes of attendees to a General Mtng. I've argued this in most of my posts to this thread and haven't got much to add.

  If Maintenance Fees were not covered by Sec. 48, getting increases would not be the pain in the arse it is currently! And if Maintenance Fee increases are covered by SEc.48, then most Special Assessments are as well.

   As it seems Property Management Companies are recommending the "Special Assessment" route, my personal view is that the matter will eventually be put to further tests with the Land Office and the courts. According to J. Aloha's post, so far cases in both the Land Office and the Supreme court have gone in favour of those protesting Maintenance Fee increases in any guise which has not conformed to Sec. 48.

   If the matter is tested repeatedly and with diligence, perhaps yet another Amendment to Thai Condo Law will come along to clarify.

   And I still would like to know what "Ministerial Regulations" are and how to find them.

Edited by ripley, 2012-03-01 22:23:15.

[ripley]

Back to the net, I found the following which provides partial answer to my own question.

"The Minister of the Interior shall have charge and control of the execution of this act (B.E.2522) and shall have the power to appoint Competent Official, issue Ministerial Regulations , fixes fees and expenses  not exceeding the rates annexed hereto and prescribes other business for the carrying out of this act."
"Such Ministerial Regulations shall become effective upon their publication in the Government Gazette"

Elsewhere, B.E. 2522, et al are also called "Ministerial Regulations".

So, question is: What, if any, Ministerial Regulations to do with Condo Law have been made since July, 2008 - and do they clarify any further the position regarding Maintenance Fees and Special Assessments/Funds? Lots of luck with this one, methinks, as the Govt. Gazette is undoubtedly in Thai. But perhaps a lawyer specializing in Thai Condo Law is conversant?

[Delight]

Ripley States:
If Maintenance Fees were not covered by Sec. 48, getting increases would not be the pain in the arse it is currently! And if Maintenance Fee increases are covered by SEc.48, then most Special Assessments are as well.

I do  see  in Section 48 any  reference to maintenance payments or special assessments.

The Act refers to co –owner financial contributions as follows:

SECTION 40, The  co-owner shall jointly contribute money to the juristic private, commonly-owned housing for operating activities of the juristic private, commonly-owned housing as follows:

(1) the expenses of the juristic private, commonly-owned housing that each unit’s co-owner is required to pay in advance;
(2) the capital funds required for the initiation of any acti­vity according to the rules or resolution of the general meeting;
(3) other funds for performance in accordance with the resolu­tion of the general meeting under the conditions prescribed by the general meeting,


In the Regulations   as per the condo where I live it states:
Administer and maintain public utilities, notify partners of bill payments in order to support expenses and to execute tax expenses.

This is simply an objective to be achieved. It’s left to the Manager /Committee to achieve.

Given that none of Section 40 Paragraphs 1 thru 3 need a 50% vote.

Unless I am missing something then increases should not be the pain in the arse .

[ripley]

Chris2004:
My condo needed to raise more money for maintenance. As i understand it to increase the normal common fee at least 50% of ALL the co-owners need to agree at an AGM. As we never get that many attend this was not possible. But it seems we can charge an additional fee using only 50% of co-owners ATTENDING an EGM. This is the route we took to get an additional 5million baht of funding. Our standard common fee is fairly low at 20 baht per sq m per month
:Delight:
Increasing the basic maintenance charge does require a 50% vote.
:Delight:
Special Assessment ( and Sinking Funds) can save condos.
In relation to the condo where I live, achieving a 50% Vote to increase fees would either be impossible or at least very difficult(my opinion)
In the event it was achieved (as a Special Assessment) at an EGM with 26% of total building vote.-It raised the fee by 25% p.a. and this Assessment has a 3 year life)
The management company that was appointed, after the Condo voted to get rid of the original developer /manager, advised us of the approach.
Johnny_Aloha:
I do not agree and the Land Office in Pattaya also does not agree. Jomtien Complex Condotel at their 2010 AGM had over 35% of all co-owners votes represented and voted by 95% of those voting voteed in favor of increasing the Maintenance Fees for every co-owner. However, only about 20% of the total of all co-owners actually voted their votes on this issue and the Land Office deemed that one third of all co-owner votes were required to change the Maintenance Fees so disapproved the AGM minutes, specifically this vote.
The Thai Supreme Court before the enactment of the July 4, 2008 admendment to the Thai Condo Act did decide in the favor of a single co-owner who sued his condominium for increasing the Maintenance Fees without the required percentage of co-owner votes, however, they stated that a Special Fund for specific, non-routine maintenance kind of work, e.g. painting the entire building, could be approved by a simple majority at a second meeting but the funds approved could only be used for the specific item(s) that was voted on. Unfortunately, unknowing or unscrupulous Committees and JPMs have used these Special Funds on occasion for their own agenda leaving the spefific items approved without monies to accomplish the work. Both scenarios are being contested in numerous court cases with no new verdicts to date to my knowledge.
Delight
Section 48 of the Act makes no reference to any kind of maintenace funding.

  We have been discussing little else but the difficulty of achieving Maintenance Fund increases and the usefulness as well as legality of using "Special Assessments" to achieve the same result without the hassles.

   What has changed that now makes increases easy??

I think that an interpretation of the Law may make it appear to many a simple matter, but that the reality on the ground is very different indeed.

Edited by ripley, 2012-03-05 21:54:47.

[Delight]

Ripley States:
I think that an interpretation of the Law may make it appear to many a simple matter, but that the reality on the ground is very different indeed.

For certain based on the input to this post  –the foregoing statement is valid

I   stated earlier that a 50% vote was required to change the basic maintenance fee. This is because the management employed at the condo where I live advised me of same.

As a consequence of this post I have studied the Act in more detail.

I struggle to find any reference to this 50% requirement.

My current opinion is that Section 40 is the only section that covers the issue of contributions to maintenance funding.

For convenience I detail it as follows:

SECTION 40, The co-owner shall jointly contribute money to the juristic private, commonly-owned housing for operating activities of the juristic private, commonly-owned housing as follows:

(1) the expenses of the juristic private, commonly-owned housing that each unit’s co-owner is required to pay in advance;
(2) the capital funds required for the initiation of any acti­vity according to the rules or resolution of the general meeting;
(3) other funds for performance in accordance with the resolu­tion of the general meeting under the conditions prescribed by the general meeting.

If I am correct then I fail to see the validity of court action.

What this section does emphasize is that the co –owners are responsible for costs.

The level of  the fees to match those costs is  determined at  a legal co –owner meeting. A simple majority vote is all that is required- because maintenance fees, and the like,  do not appear as a specific topic on the list of topics that require a 50% vote (or for that matter a 25%  or a 1/3 vote)
If co –owners fail to attend meetings to register their views and challenge the management   then they are potentially vulnerable to the  self serving actions of others .
So to summarize:

Section 14 determines the ratio of payment responsibility between the co –owners.
Section 18 states that co –owners have to pay and details penalties for those who choose not to.

Section 40  determines 1) that co –owners have to jointly  pay all costs , ,2)when they have to pay and 3)the mechanism for legally establishing the fees to meet   the costs.
Capital spending does require a 50% vote as detailed under Section 48 as follows:



SECTION 48, A resolution on any of the following matters shall not be less than one-half of the votes of the total number of the votes of all co-owners combined:

   (1) a purchase of immoveable property or an acceptance of immovable property of binding value as common property;
  
  
   (6)  a construction that modifies, adds to or improves the common property;

I think that this just about covers it-but maybe not

Edited by Delight, 2012-03-06 08:16:58.

[ripley]

***Remarks: The reason for promulgating this Act is: Whereas the Condominium Act, B. E. 2522 has been in force for quite a long time and it appears that many rules and details, practically, cannot be put into force and are not adequate for use in providing protections over the people purchasing the condominium units for dwelling purpose, therefore, it is expedient to revise the provisions under this Act in order to solve the problem arising out of the law enforcements and to provide protections over the people purchasing the condominium units for dwelling purpose, with more efficiency including the expediency to reasonably adjust the rates of fees and expenses. Therefore, it is necessary to enact this Act. (Notes from B.E. 2551).

I always just skim the "Penalty" part at the end of the Act, but finally read thru the above.

I'm now inclined to agree with Delight about the intent of the Act and with his interpretation of same. I still think there will be test cases with the Land Office and the courts & the outcomes of these will be definitive.

This thread has been a very valuable learning experience. Thanks!

Edited by ripley, 2012-03-07 21:07:54.

[ripley]

P.S. One area in which the law might be queried is its requirement of 1/3 total ownership vote to pass a resolution in a Second Call meeting.

   How to protect oneself from unreasonable rises in Maintenance Fees and "Special Assessments"? Well, the Act calls for  regular audits and full disclosure. If it can be proved that monies previously obtained by the administration have been re-routed, misspent or are unaccounted for, the matter can be raised at an AGM and also reported to the Land Office or even to the courts. I would think that, in such a case, any move for a rise or assessment could be forestalled until the previously collected funds have been accounted for.

  Back on my Soap Box, I must repeat: Realistically, follow-thru on any of this requires the united effort of a bldg's co-owners. Many (most?) Co-owners have earned their reputation for indifference and non-attendance, and this one fact alone denies them of the power to prevent unreasonable rises, etc. The only solution that I can think of is for someone or some group to make the effort necessary to change their bldg's Regulations to state that all owners are required to attend - either in person or by proxy - the AGMs and Second Call Mtngs.  Full participation encourages full awareness, guarantees a quorum and the necessary vote ratios. Definitely worth the effort even if it takes a few years to achieve.

Edited by ripley, 2012-03-30 00:23:20.