Using maintenance fees for other purposes

[malcolminthemiddle]

Our Developer argues by law the developer does not have to return any overpaid excess funds to the resident’s maintenance account or issue as credit to the residents. He is using this argument to spend maintenance fees for other purposes. Is this legal? A reference to any relevant section of the Consumer Protection Act or other legislation would be appreciated. Thanks in advance.

[Henryford]

What do you mean by "overpaid excess funds" ?

[VocalNeal]

23 minutes ago, malcolminthemiddle said:

He is using this argument to spend maintenance fees for other purposes.

Could the "other purposes" be in anyway construed as maintenance ???? 

Possession is 9/10 of the law.

[malcolminthemiddle]

1 hour ago, Henryford said:

What do you mean by "overpaid excess funds" ?

Surplus maintenance fees.

[malcolminthemiddle]

1 hour ago, VocalNeal said:

Could the "other purposes" be in anyway construed as maintenance ???? 

Possession is 9/10 of the law.

No. Maintenance is defined as security, gardening, collecting rubbish, cleaning roads, common utility bills. 9/10? Not if the law says it must be reimbursed or credited

[VocalNeal]

38 minutes ago, malcolminthemiddle said:

No. Maintenance is defined as security, gardening, collecting rubbish, cleaning roads, common utility bills. 9/10? Not if the law says it must be reimbursed or credited

Painting the common areas?

Maybe a pool?

Repainting the lines in the parking area?

New couch for the reception area?

Or the amount carried over to the next financial year to compensate for the residents whodidn't pay.

 

Anyway, and it is just my opinion, not worth worrying about. 

[Dante99]

You will get nowhere with this.  Too easy to adjust accounting, put on a different label,put it in a different account .... then he has it covered.  

 

Any property owner knows they must put some money aside for accrued maintenance so he can just sock it all into an account with that label, normal practice.

[Snugs08]

Shouldn't the excess just rollover, wouldn't seem logical to recalculate everyone's payment for every overage, unless the excess becomes insanely huge, it would also make sense to have a decent reserve for large repairs further down the road, people getting behind on common fees, dealing with new fire regulations, further enhancements, and so on.  How much overage is there? and you still haven't detailed what "other purposes" is - perhaps he meant he doesn't know yet so "other" is good as any answer? I would expect the reserves, and the outgoing, in my condo fluctuate yearly, I'd expect them to have a reserve of at least a million baht (and my condo isnt expensive) , possibly more to cover big jobs, if annual common fee isn't increasing more than inflation per annum I'd not going to nitpick their accounts ..

Edited March 21, 2023 by Snugs08

[malcolminthemiddle]

Thanks for answers. The Developer has acknowledged that there is a surplus of 800K spent on non-maintenance items it was not intended for. 

[BobBKK]

19 minutes ago, malcolminthemiddle said:

Thanks for answers. The Developer has acknowledged that there is a surplus of 800K spent on non-maintenance items it was not intended for. 

The JP should handle this?  the elected JP not one appointed by the initial developer. The developer is no longer legally in charge - the JP IS.

[scubascuba3]

3 hours ago, malcolminthemiddle said:

Surplus maintenance fees.

Any unused maintenance fees should be accruing for lift replacement in 20 years along with other accrued expenses

[malcolminthemiddle]

1 hour ago, BobBKK said:

The JP should handle this?  the elected JP not one appointed by the initial developer. The developer is no longer legally in charge - the JP IS.

There is no JP.

[malcolminthemiddle]

32 minutes ago, scubascuba3 said:

Any unused maintenance fees should be accruing for lift replacement in 20 years along with other accrued expenses

It is a gated community not a condo

 

 

[Delight]

6 hours ago, malcolminthemiddle said:

It is a gated community not a condo

 

 

There is no equivalent of the Condominium Act pertaining to  private gated communities.

 

There is condo act-only because the IMF insisted

The maintenance is typically managed by a private contractor.

In your case this contractor was the developer-maybe he still is if the site is still under development.

 

The owners of the properties simply pay . usually monthly.

If you know different -then please explain.

 

 

 

[malcolminthemiddle]

5 hours ago, Delight said:

There is no equivalent of the Condominium Act pertaining to  private gated communities.

 

There is condo act-only because the IMF insisted

The maintenance is typically managed by a private contractor.

In your case this contractor was the developer-maybe he still is if the site is still under development.

 

The owners of the properties simply pay . usually monthly.

If you know different -then please explain.

 

 

 

The relevant legislation for a gated (licensed) community with more than 10 houses is the Land Development Act and sub-legislation. The Developer is responsible to maintain the common facilities in their original condition until he is discharged from that responsibility by transferring the common facilities to either a JP or local authority. Prior to discharge the Developer may charge an approved maintenance fee.  I am looking for the legal argument that surplus maintenance fees are owned by the Buyers who pay the fee and not income for the Developer to be spent any way he wants. Thanks for all the responses so far. The surplus 800k is not in dispute the question is who owns the 800k?

[JayClay]

19 hours ago, malcolminthemiddle said:

He is using this argument to spend maintenance fees for other purposes

Such as?

[malcolminthemiddle]

14 minutes ago, JayClay said:

Such as?

Undefined or unquantified "Losses"

 

Edited March 22, 2023 by malcolminthemiddle

[Dante99]

15 hours ago, malcolminthemiddle said:

There is no JP.

Then you better get one set up.

[malcolminthemiddle]

3 hours ago, Dante99 said:

Then you better get one set up.

Needs the Developer to take the first step.

Without the Developer support very difficult if at all possible.

[Delight]

8 hours ago, malcolminthemiddle said:

The relevant legislation for a gated (licensed) community with more than 10 houses is the Land Development Act and sub-legislation. The Developer is responsible to maintain the common facilities in their original condition until he is discharged from that responsibility by transferring the common facilities to either a JP or local authority. Prior to discharge the Developer may charge an approved maintenance fee.  I am looking for the legal argument that surplus maintenance fees are owned by the Buyers who pay the fee and not income for the Developer to be spent any way he wants. Thanks for all the responses so far. The surplus 800k is not in dispute the question is who owns the 800k?

The Land development Act (LDA) and The Condo Act have different priorities .

The main aim of the Condo Act is to look after the best interest of the co -owners.

 

I do not see that the LDA has the same priority -hence your problem. I attach a copy of the  LDA

Maybe i have missed something.

 

 

 

LAND DEVELOPMENT ACT.pdf

[Dante99]

4 hours ago, malcolminthemiddle said:

Needs the Developer to take the first step.

Without the Developer support very difficult if at all possible.

No.

Owners can have done it on their own more than a few times in Chiang Mai.  Without developer support and in at least several cases with developer resistance.

[malcolminthemiddle]

31 minutes ago, Dante99 said:

No.

Owners can have done it on their own more than a few times in Chiang Mai.  Without developer support and in at least several cases with developer resistance.

The only option for the Owners to apply for a JP without the Developers support is Section 70 LDA in the case that the Developer fails to maintain, which is subjective.

[Dan O]

Are all the lots sold? If so you can act as a group to request creation of the Juristic entity and only lot owners are involved to vote\action. If the developer is still a lot owner then they are entitled to a vote for each lot but nothing more. You would need to set up the regulations for the community to work by and include fee schedules for maintenance and operations. It would be wise to consult with a non interested party that has experience in this area as the accounting done properly has several aspects that need to be defined on setting appropriate fee structures and use parameters and accounting validation for the new Juristic entity to handle maintenance and repair, capital expense budgets and capital reserve plans for future requirements. You would also be wise in stipulating the scope of the Juristic entity, length of tenure and evaluation and review of Juristic actions 

[Dante99]

On 3/21/2023 at 2:17 PM, malcolminthemiddle said:

Not if the law says it must be reimbursed or credited

But the law does not say that so why deal in fantasy.

[malcolminthemiddle]

7 minutes ago, Dante99 said:

But the law does not say that so why deal in fantasy.

You know that or just saying so?

[malcolminthemiddle]

34 minutes ago, Dan O said:

Are all the lots sold? If so you can act as a group to request creation of the Juristic entity and only lot owners are involved to vote\action.

 

Not all plots must be sold to apply for a JP which as mentioned is limited to Section 70 without the Developers support. A JP application can be made after 51% of plots are sold. Pre-JP registration only Buyers have a vote.

 

If the developer is still a lot owner then they are entitled to a vote for each lot but nothing more.

 

The Developer gets a vote for each unsold plot as a member of the JP but only post-JP registration.

 

You would need to set up the regulations for the community to work by and include fee schedules for maintenance and operations. It would be wise to consult with a non interested party that has experience in this area as the accounting done properly has several aspects that need to be defined on setting appropriate fee structures and use parameters and accounting validation for the new Juristic entity to handle maintenance and repair, capital expense budgets and capital reserve plans for future requirements. You would also be wise in stipulating the scope of the Juristic entity, length of tenure and evaluation and review of Juristic actions 

 

Thanks for the advice. We are aware of the requirement, content and purpose of an Articles of Association. Thanks again.

 

[Dante99]

51 minutes ago, malcolminthemiddle said:

You know that or just saying so?

Oh I know, I have been a party to replacing a developer with a JP.

[malcolminthemiddle]

11 hours ago, Dante99 said:

Oh I know, I have been a party to replacing a developer with a JP.

Then you would know that maintenance fees are a part of the asset account to be handed over by the Developer to the JP before a JP can be registered.

[Dante99]

21 minutes ago, malcolminthemiddle said:

maintenance fees are a part of the asset account to be handed over by the Developer to the JP before a JP can be registered.

not required based on actual practice

[BobBKK]

20 hours ago, malcolminthemiddle said:

Needs the Developer to take the first step.

Without the Developer support very difficult if at all possible.

I disagree - go to the land office