Can Condo Juristic Person sue the Developer for not registering the common areas?

[thairookie]

Normally the co-owners can bring a class action and sue the Developer for misrepresentation or breach of contract since the common areas are clearly reflected in the sales brochures. What's more co-owners have been paying common fees to maintain the common areas.

 

The co-owners were kept in the dark in the past because the Developer controlled the management.

 

However, the co-owners recently took over the management and the matter has since been brought into light.

 

Can the new Committee representing the Condo Juristic Person sue the Developer? The Committee does not have a sales contract with the Developer. It's the individual co-owners who signed the sales contract.

 

On what basis can the Committee sue the Developer and get them to perform their obligations under the sales contract?

[Peterw42]

I think you are right in the first instance, co-owners would sue the developer, the co-owners are the people who have not received what they paid for. As you say the committee and the juristic person manage the block, they didnt buy anything from the developers.

Maybe any action could be the juristic person on behalf of the co-owners. The committee wouldn't be taking the action.

 

Not sure what you mean by the common property not registered, the common property exists but it doesn't belong to the block, common property was promised but never delivered ?

[thairookie]

16 minutes ago, Peterw42 said:

I think you are right in the first instance, co-owners would sue the developer, the co-owners are the people who have not received what they paid for. As you say the committee and the juristic person manage the block, they didnt buy anything from the developers.

Maybe any action could be the juristic person on behalf of the co-owners. The committee wouldn't be taking the action.

 

Not sure what you mean by the common property not registered, the common property exists but it doesn't belong to the block, common property was promised but never delivered ?

It means the common areas where the common facilities are built are still registered in the name of the Developer.  The land does not belong to the Condo.

 

"Juristic Person o behalf of the co-owners" ?  What is the difference between the Board of Committee and the Juristic Person ?  Are they not the same ?

[Peterw42]

6 minutes ago, thairookie said:

It means the common areas where the common facilities are built are still registered in the name of the Developer.  The land does not belong to the Condo.

 

"Juristic Person o behalf of the co-owners" ?  What is the difference between the Board of Committee and the Juristic Person ?  Are they not the same ?

It can be a different committee every 2 years. The committee forms part of the juristic person entity but usually only monitors and instructs the juristic manager/office/person etc, who do the day to day running of the block. I suppose it comes down to the size of the block, whether there is a full-time juristic person.

I think @blackcab would know the answers, hopefully he will be along soon.

[thairookie]

4 minutes ago, Peterw42 said:

It can be a different committee every 2 years. The committee forms part of the juristic person entity but usually only monitors and instructs the juristic manager/office/person etc, who do the day to day running of the block. I suppose it comes down to the size of the block, whether there is a full-time juristic person.

I think @blackcab would know the answers, hopefully he will be along soon.

I would think the Committee represents the Condo Juristic Person.  So the Committee will instruct the JPM to sue the Developer.  And then we are back to the same question.  Can the JPM sue the Developer since it's an action for breach of contract, and neither the JPM nor the Committee were parties to the (sales) contract.

[blackcab]

We need more information before this can be answered. The OP stated the property is a condominium. Which common areas are still in the name of the developer, and how do you know this?

[thairookie]

11 minutes ago, blackcab said:

We need more information before this can be answered. The OP stated the property is a condominium. Which common areas are still in the name of the developer, and how do you know this?

The land where the swimming pool is built, among others.  How do I know ?  Land office.

[blackcab]

I assume the land the pool is built on is a separate land title deed to the land the condominium structure is built on. If it is then the situation is a bit of a mess to be quite honest.

 

The first thing the committee/someone needs to do is get a copy of the land title deeds in question. Once they have this then they should approach the developer and ask them to transfer the land. This will, of course, cost the developer the transfer fee, as it is their obligation to pay the transfer fees.

 

If the swimming pool area, etc. is a separate title deed, what proof do you have that it was meant to be given over as common area for the condominium?

[thairookie]

The sales contract and advertising brochures.

 

I am not worried about the evidential aspect. My concern has always been about the legal capacity of the JP or JPM to sue.

[blackcab]

Whether or not thr JPM has the right to sue is a matter for debate. What I would suggest is that a motion is passed in a properly constituted General Meeting.

 

The motion would grant permission for the JPM to represent the co-owners and also provide funding for legal expenses.

 

Due to the cost and inconvenience of calling a General Meeting it might be worth awaiting until the next AGM if that is not too far in the future.

[inThailand]

Yes the JPM is the condos legal representative and with a passed resolution by owners must take action.

 

But first get a complete picture and documentation together before deciding a course of action. You will need these anyway to get good legal advice or for a lawsuit. 

 

1. Get certified copies of the land title deed in question. On the back tells who is the owner and or leasee. 

 

Get certified copies of the bylaws, rules and regulations, and registered committee members and JP Manager. 

 

2. The condo registration will be associated with the Land title deeds and the condo title deeds. Is this the case with the swimming pool? 

 

3. Get your sales documents, brochures together. Who has been paying for the swimming pool maintenance? Owners? So monthly or yearly audited reports should reflect this from day one? A contract for pool maintenance exists?

 

4. Have the JP Manager take all this to Land department and explain the situation. What is their advice. Would hurt a committee member goes as well. 

 

5. Unless your JP Mgr is experienced in such matters, committee members with the JPM should seek legal advice on this matter and for next steps. Frankly, we have never trusted our JPM in such important matters, so committee members or even owners have been involved. 

 

6. Present findings to the owners and vote on a appropriate resolution with funding, and then proceed with a clear plan and owner approval. 

 

Of course, getting the developer to voluntarily pass owners their rightfull common area property, or getting the Land Office to assist is better than seeing a court room. 

 

Good Luck! 

[Henryford]

Surely all the common areas, like the pool, will remain in the ownership of the developer. They can't be bought by any condo owner. Any maintenance of these areas are paid by the Condo from annual fees (including those from the developer for unsold condos).

[thairookie]

Like I said, the question at the beginning of this thread is whether the condo JP via the JPM has the legal capacity to sue when technically speaking they are not privy to the sales contract on which such a legal action is founded.

 

Let's just assume that I have the evidence and all administrative procedures are in place.  But we are back to the beginning. Do they have the legal capacity?

[Henryford]

We sued our developer for unpaid maintenance fees, and won.

[nickcar]

 This is exactly what happened in my condo.  Developed  was sued, Case eventually went to the Supreme Court and we won. Takes about 10 years. 

Get yourself a good lawyer experienced in these matters

[blackcab]

5 hours ago, thairookie said:

Like I said, the question at the beginning of this thread is whether the condo JP via the JPM has the legal capacity to sue when technically speaking they are not privy to the sales contract on which such a legal action is founded.

 

They will have authority after the co-owners have passed an appropriate resolution at a General Meeting.

[thairookie]

On 9/5/2019 at 4:50 PM, blackcab said:

 

They will have authority after the co-owners have passed an appropriate resolution at a General Meeting.

Thank you.  That's a direct answer I have been looking for without veering into common fees and other stuff.????

[KKr]

On 9/5/2019 at 10:18 AM, Henryford said:

Surely all the common areas, like the pool, will remain in the ownership of the developer. They can't be bought by any condo owner. Any maintenance of these areas are paid by the Condo from annual fees (including those from the developer for unsold condos).

and what will you do in case the Developer decides to build a restaurant with bars, and condos above on the spot of HIS swimming pool ?