Condominium Act 2008

[taxexile]

this might be of interest.

the english translation starts on about page 18

[jimmybkk]

Section 19; "Being an incompetent or quasi-incompetent person" Errm, who decides?

Superb!!

[Abrak]

I havent had a chance to read the Condominium Act in the English translation but I see that 78 people have downloaded it so I hope that one of them might help.

The JP in my Condominium is about to be arrested by the Labor Department for not having a Work Permit. This came as a surprise to him because 1. he does not have a contract 2. he is not paid 3. his work is entirely voluntary and charitable and 4. he is not putting a Thai out of a job. The definition of work under Thai Law is 'making an effort' and 'showing expertise' 'for remuneration or not' so strictly speaking he is breaking the law but I would like to think I have done the same today by the expertise I showed on the golf course.

However, it now appears that all juristic persons should have had a 'contract' within 30 days of the new Condominium Act 2008. This was new news to him as it was to me but is perhaps understandable given the extra burden of responsibility expected of the JP under the new Act. Of course being unpaid he doesnt actually qualify for a work permit and it has never been the policy of the Thai Government to persue voluntary workers from their positions on this basis. The JP has been generally harrassed by the developer because the co-owners take the position that as the developer has not paid any management fees on any unsold condos ever, he cannot sign off on the sale of any of these condos on the basis that they are debt free (or we will sue him).

He now I suspect rightly feels he should resign on the basis that if he really is required to have to sign a contract he would, at least in spirit, being breaking the Labour Law by signing a contract with the co-owners to undertake duties whether paid or unpaid. Anyone else come up with this sort of problem?

[briley]

Yes - we were told that a Farang as Juristic person had to have a work permit. Even for unpaid voluntary work you need a work permit in Thailand. So we have a Thai as figure-head - he just does the legal bits whilst the committee does the legwork.

But I am interest in your comment that the Juristic person should have a contract under the 2552 act - can you point to a paragraph that says that? I have never found anything.

PS I would add that no farang committee member so much as changes a light bulb to ensure that we are not accused of 'working'.

Edited March 22, 2009 by briley

[Sophon]

I find section 35/3 very sensible:

The manager shall vacate office upon:

(1) Death

But on a more serious note; does the amendments described in section 12:

Section 19 bis. Each condominium building may have alien or juristic persons specified in section 19 holding ownership in condominium rooms altogether not exceeding 49 percent of the total area of the condominium rooms in the said condominium building at the time of applying for registration of condominium building under section 6.

still allow for the current practice, where the first 49 percent are sold under the foreign quota and the remaining 51 percent under the company structure? As I read it, at least 51 percent must be owned by Thais (and not Thai companies).

Or are the "juristic persons" referred to specified in section 19 of the condominium act as companies majority owned by foreigners?

Sophon

[briley]

The law says maximum of 49% ownership by aliens - I always take this to be foreign persons and foreign owned companies. The remainder, by logic, has to be Thai ownership, either people or companies.

People who set up a shell 'Thai' company to enable them to circumvent the 49% rule seem to be within the wording of the law but outside the spirit of the law. As such it is still 'legal'. Personally I do not like this sort of thing.

Section 19 talks about Juristic persons having ownership of rooms.

The Juristic person can be a real person or a company and does not have to be an owner. The law does not prohibit a foreigner or foreign owned company being the Juristic person.

[Abrak]

Yes - we were told that a Farang as Juristic person had to have a work permit. Even for unpaid voluntary work you need a work permit in Thailand. So we have a Thai as figure-head - he just does the legal bits whilst the committee does the legwork.

But I am interest in your comment that the Juristic person should have a contract under the 2552 act - can you point to a paragraph that says that? I have never found anything.

PS I would add that no farang committee member so much as changes a light bulb to ensure that we are not accused of 'working'.

Well it is obviously good that you were well advised. However the Thai law is deliberately vague (in that it states that work is 'making effort' and 'using effort' 'whether paid or otherwise') so as to prevent farangs finding loopholes to abuse it or prevent haggling. It has never been policy to use it to say stop charity workers 'working' (i,e, after the Tsunami) or to prevent people from say playing golf. If anything this, I would expect would be regarded as abuse of the underlying law and general harassment. As it is, at this current moment, my friend is off to the police station to be arrested. No mention of the need for having a work permit under the 2552 act as yet been mentioned and 'proof of work' has been limited solely to his signing duties has JP.

In fact implementation of the Act is usually very loose - for instance, it is extremely rare for someone who makes a living punting stocks on the US market to be prosecuted if he resides Thailand despite the fact he is both working and earning. (Although if he has actually been earning in the last 2 or 3 years he has done pretty well.) Implementation of the law is usually limited to individuals who have paid contracts with companies or, in some cases, where they are working in jobs restricted to Thais without proper permits.

I too would be interested to know if anyone has found any evidence within the Act that the JP must have a contract. If he must I would have thought they would be prosecuting the management committee for failing to either make one or getting the JP to have one. And I perfectly understand why any JP would not sign an unpaid contract to 'work' as JP 'in the sense that if he had a contract it would be against the spirit of the law'.

Of course, not being paid means you do not qualify for a work permit - so that your comment along the lines 'even voluntary workers need a work permit' should more accurately read 'under Thai law foreign voluntary and charity workers are not allowed to work in Thailand.'

To me it is a simple case of harassment of a voluntary worker (who has already been arrested for dangerous driving of a golf buggy on the golf course by the same police!) and I would like to think a judge would see it in the same light. Obviously the safest approach would be to put in a Thai as JP but of course there are not many volunteers as the developer appears prepared to use every means possible to get the JP to sign documents that are blatantly untrue (that the unsold condos are debt free) and which would, if signed, expose him to personal liability for the co-owners losses.

Alternatively we could allow the developer to appoint the JP (as he might grant the JP some guaranty against these losses which it may or may not honor). However that would then give the developer's JP access to the 'maintenance funds pool' of monies to which they have not contributed a penny but which they may well take advantage of for their own benefit.

I suspect that our JP would be prepared to let this case go to court if there is no requirement under the law for the JP to have a contract as the prosecutions case would simply appear to be taking advantage of the flexibility of the law that was designed 'intentionally flexible' for an entirely different reason. While standing up to the developer may appear foolish to some, he is not the sort to be easily ruffled by petty bullying. If a JP must sign a contract he should step down as he is no position to sign one, even if no replacement can be found.

Personally, I would not be surprised if the JP is required to sign a contract under the new law. It seems to me he has to take on substantial additional responsibilities for which he is personally liable under the new law. That this should be formalised under a contract and that the JP position should now be a paid as opposed to an unpaid role to compensate for the additional responsibility would seem a fairly logical conclusion to the spirit of the new Law. Unfortunately, even if it was paid I doubt it would cover our JP's legal fees.