Definition Of Terms In Thai Condo Law

[Delight]

I'm thinking that the Glossary is really for simple definitions of frequently used terms.

If we get into percentages required for various issues, etc. we're interpreting the Act, which isn't really our job.

So - I suggest a plain definition of "Second Call Meeting' as a mtng. called after an AGM fails to achieve a quorum, etc. etc.

We can always add references to the Sections of the Act concerning Second Calls if you think it wise.

Whaddya think?

I agree with your attitude.

However

Knowing what I now know the topic of 2nd meetings would detailed be as follows:

Second Call meeting s :

1). If a general co -owner meeting (AGM of EGM fails to attract sufficient co –owners to achieve a quorum then a 2^nd meeting can be arranged . This must be within 15 days of original meetings and the quorum rules are suspended.

2)If a general co -owners meeting fails to attract sufficient attendance to vote on a specific issue that requires 50% agreement then a 2^nd meeting can be called where the winning vote on the specific issue needs only to comprise 1/3 of the total available vote.The current Act only details one topic where this concession applies.

This I think is more accurate

I leave it to your discretion as to any next stage

[ripley]

How about this one?

Second Call Meeting: In the event that AGM attendance is less than the required quota of 1/4 total ownership, a second meeting must be slated for 15 days after the failed AGM.

A Second Call Meeting does not require a quorum. The voting percentage requirements vary on some issues in a Second Call Mtg. Please refer to the Thai Condominium Acts B.E. 2522 and its B.E. 2551 amendments, Sections: #43, 48 and 49.

[Delight]

Ripley

The problem with this definition it implies that a lack of a quorum

Is the basis for all 2^nd meetings .It isn’t.

A 2^nd meeting can be called –even if the 1^st meeting had the 25% i.e. as detailed :

Chapter 5 Section 48

So maybe this will do.

2^Nd Meetings. A 2^nd general meeting can be arranged (within 15 days of the original general meeting ) , when the conditions, detailed in Sections 43 and/or 48 of Chapter 5 of the Thai Condominium Acts B.E. 2522 and its B.E. 2551 amendments, apply.

[ripley]

Well spotted! I never realized that or heard it mentioned until now. I looked up your reference (on the "samui for sale" version of the Act which, incidentally, is more reader friendly than others). I think we go w/ your definition:

Second Call Meeting: A second general meeting can be arranged within 15 days of the original general meeting, when the conditions, detailed in Sections 43 and/or 48 of Chapter 5 of the Thai Condominium Acts B.E. 2522 and its B.E. 2551 amendments apply.

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[ripley]

Oops. One small alteration: "MUST be arranged" (instead of "CAN".

[Delight]

One more put to bed.

As an aside

The concept of a 2nd meeting –to vote on the ‘the purchase if immovable property ‘ strikes me as a bit dodgy.

Consider a condo with 100 rooms all with equal voting rights.

10 co –owners conspire and persuade 30 co –owners to use the proxy system –an AGM is due. The 10 have had plenty of time to arrange this.

The topic ‘purchase of immovable property ‘ is on the Agenda or is raised in any other business. Either way the proposal is defeated.

The 10 do not use the proxies.

The 10 gamble that apathy will be a feature of the 2nd meeting.

Only the 10 show at the 2^nd meeting and given that they hold 40% between them –the purchase is given the go –ahead.

Arguably farfetched –but theoretically possible

[ripley]

Oh, I don't think that's far-fetched at all. I can think of other ways & reasons to exploit proxy votes as I'm sure you can.

I've always thought that the proxy forms should have space - even categories offered - for the written wishes of the owners giving them. If an agenda is very specific as to proposals, candidates, etc., the giver can have control over his proxy vote. I always write in my own vote choices when I use a proxy vote.

Apart from that, tho, the scenario you suggest could easily take place amongst consenting owners to control the outcome of a meeting. Disturbing. One can only hope that the apathy which keeps people from participation would also serve to flummox those wishing to stage a coup.

Regarding proxy votes, I'm a real advocate for their use. The only problem I encounter in my ruminations on the subject is - especially in a large bldg. and with low attendance - who is going to vote all the proxies of those absent?

But perhaps this is all fodder for another thread...

(I'll put the definition on the Glossary page.)

[ripley]

Believe me, I hate to bring this up, but it's been niggling at the back of my mind.

re: JURISTIC PERSON MANAGER (JPM)

The definition in the glossary is based on advice/information obtained from no fewer than 4 lawyers - one source being the team of a renowned law professor in Bangkok who has had the honor of serving his Royal Majesty.

The building I live in has always had a Juristic Person Manager. (At present we are questioning the legality of the Committee Chairman to simultaneously hold the position of JPM.)

Be that as it may, I can find absolutely no reference to this position in the Thai Condo Act. This contains only the definition of "Building Manager" or "Manager of the Juristic Person".

It doesn't make sense to me to have a hired building manager perform the duties of JPM as outlined in our definition.

Anyone know anything about this? I'm wondering now how many condos have JPMs separate from Building Managers.

[Delight]

There is no restriction on the JPM being a committee member.

Committee members and JPM have to be voted to these positions with a General meeting vote.

Committee members only require a simple majority at a legal General meeting

The JPM requires a 25% vote to be elected (and a 25% vote to be dismissed also)

The Manager as referred to in the Act is the JPM

There is no reference to a building manager as such.

Chapter 5 Section 49/2 gives the JPM the right to delegate to another person. I assume that this other person is the building manager

Chapter 5 Section 49 A 25% vote is required to accept the detail of which duties can be delegated from the JPM to another (assume building manager)

Chapter 5 Section 35 Details qualification requirement of JPM

Chapter 5 Section 36 The duties of the JPM

Chapter 5 Section 42/2 A JPM can call a General meeting . If the committee call a meeting a majority vote by the committee is required.

Committee members and the JPM cannot carry proxies.

[ripley]

What I meant is that there isn't a separate definition for "Manager" and "Juristic Person Manager" in the Act - only "manager of the juristic person". The "manager of the juristic person" has the powers and responsibilities listed below and can/shall delegate them to another person (what I would term a "building manager".

This is very different from the legal advice received on the subject as I mentioned in my post above. Also, some years ago, a JPM in our building attempted to take over the powers of manager, committee, etc. quoting the Act as written. He was overruled and dismissed by an AGM.

However that may be, the definition given in the Act is different from the definition we've given in the glossary for Juristic Person Manager (JPM). It would appear the position described in the glossary doesn't exist.

Would you agree?

Section 36 The manager shall have the following powers and duties:

(1) To carry out the work according to the objectives under Section 33 or resolution of the Regulations or The Manager shall perform his duties resolution of the joint-owners General Meeting, however it shall not be contradictory to the law.

(2) In the case of necessity and urgency, the Manager shall have the power by his own initiative to carry out the business for the safety of the building as a prudent person should do to his own property.

(3) Providing security operations or taking actions in maintaining peace and order within the condominium.

(4) Acting as a representative of the condominium corporate.

(5) Arranging to have a monthly Receipt and Expenditure Account prepared and post it on the Bulletin Board to inform the joint owners within fifteen days from the end of the month and that such relevant Announcement shall be posted at least for a consecutive period of fifteen days.

(6) Suing by own self except the business by the Regulations or the resolution of the Joint Owner General Meeting in accordance with Section 49 (2) prescribing that the other person can be assigned to work on his behalf and that the person so assigned shall be present to perform duties in accordance with time set forth under the regulation.

Edited April 19, 2012 by ripley

[Delight]

However that may be, the definition given in the Act is different from the definition we've given in the glossary for Juristic Person Manager (JPM). It would appear the position described in the glossary doesn't exist.

I now understand where you are coming from.

As a start could you send a post detailing the current definition of JPM .

That will be the basis for any change

[ripley]

Per the Glossary:

"J.P.M.: Juristic Person Manager. A person elected by the Co-owners at an AGM whose function is to check all official paperwork for legality and to sign required documents (Government and others) submitted to the CJP. The "hand" of the owners, if you will. This person must have some legal qualifications, be fluent in the Thai language and must have legal authority to work in Thailand. (If the building is run by a Management Company, their legal department may serve as JPM. (limited liability)".

"Manager: A Normal (Natural) or Juristic person hired to implement management tasks for the Condominium under the supervision of the Committee and the JPM."

Edited April 20, 2012 by ripley

[Delight]

"J.P.M.: Juristic Person Manager. A person elected by the Co-owners at a general meeting(with a winning vote of at least 25% of total vote) whose function is to check all official paperwork for legality and to sign required documents (Government and others) submitted to the CJP. Primarily the JPM ensures that the C.J.P operates within the current Thai Law. This person must have some legal qualifications, be fluent in the Thai language and must have legal authority to work in Thailand. . The name of the JPM is registered at the land office.See Chapter 5 sections 35 and 36 of the Condominium ACT for more detail of the qualification requirement, responsibilities, duties etc.of the JPM

"Building Manager: A person hired to implement and manage policy decisions generated by the committee i.e. to run the day to day management of the Condominium.

This Building manager reports to the JPM.

This is what I have come up with.

We could of course just quote the Act verbatim

However this way allows for the inclusion of the Building Manager as a separate role -which is only implied in the Act

Edited April 20, 2012 by Delight

[ripley]

The Thai Condo Act is confusing as regards the definition of Juristic Person Manager. For instance, the word "manager" is used interchangeably to refer both to the Legal Arm of a condominium and also to the person performing routine tasks normally ascribed to a "building manager".

There is no mention in the act of a requirement that either type of "manager" be fluent in Thai, familiar with Thai law or have permission to work in the Kingdom. Yet simple logic dictates that it isn't possible to perform the jobs without meeting these minimum requirements.

The definition for Juristic Person Manager in the Glossary does not strictly conform to what is written in the act and may be inaccurate. However, it is my opinion that independent legal counsel on Thai condo law should be taken before any alteration is made as this would appear to be a complex issue.

Edited April 30, 2012 by ripley

[ripley]

P.S. In case anyone is interested:

Found a related thread on TVF "Canadian Condo Owner Claims False Arrest". Primarily concerns work permit issues for positions in condo associations but some interesting stuff here - including views and personal experience which differ from wording of the Act re: JPMs and other official positions

[ripley]

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!

[Delight]

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 <deleted> if as you say the Act specifically refers to the building Manager.

[ripley]

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.

[Delight]

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.

• Duties which are specified in the Condo Rules-(certain duties will be retained by the JPM)
  
• Duties that were agreed by a winning vote at a legal general meeting. This winning must comprise at least 25% of the total condo vote.
  

This ‘one other person’ is generally referred to as the building manager. This title is a creation of the market. It is not referred to in the ACT

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

[ripley]

Thanks, Delight, for the well presented attempt to untangle the riddles in the Condominium Act!

Anyone else care to weigh in on this one?

[ripley]

<p>&nbsp;&nbsp; I just had a very quick consult w/ a Pattaya lawyer re: JPM definition. I wrote about it here, but something screwed up & the post seems to have got lost. Will try again later.

Edited August 18, 2012 by ripley

[ripley]

Let's try this one again!

I checked w/ our lawyer re: JPM. He basically confirmed what Delight has said in his last post. He emphasized that "JPM is not 'boss'" but must act according to direction of Owners thru their representatives the Committee. He also said that, although there is nothing in the act requiring a JPM to speak Thai or be fluent in Thai Law, it is taken for granted because it would be very foolish to be ignorant of these things - not only for the building but for the JPM who hasn't got Juristic protection and cannot claim ignorance of the law in a court.

I suggest that we append to the glossary a brief correction of the errors in the JPM definition, and refer to page 4 of this thread & Delight's post for further information. Whaddya think, Delight?

(Sadly, I forgot to ask the Lawyer about the definition of Juristic Person. I still think that, for the purposes of clarity, we can call an Owner a Juristic Person because that is how the term is used in the Act.)