Legal Question About Land Purchase and the Courts

[Reigntax]

The time required for a hearing and judgement on whether a Caveat is justified is minimal. The onus is on the Caveator to justify the claim and in this case would be hard to argue by a submission of default or breach of contract.

As land transactions require quick judgements, an exadited application to a court for a hearing and judgement on such issues can be dealt with in a few days, even by an out of hours session, if absolutely necessary.

[NamKangMan]

In reference to the property transaction stated, the purchaser would be entitled to lodge a Caveat to register his interest on title using the sale contract to justify the claim.

However, once the Caveator was in breach of contract or in default, he also has an obligation to withdraw any claim from the title as his claim was only enforceable by the sale contract.

Should this Caveat/ claim cause the vendor to suffer any loss, resell the property, ongoing holding costs, the Caveator should be liable for all additional costs by reason of their default, contract breach and limitation caused by their action.

Hence, the 15 million baht "bought" the buyer the right to place a caveat on the the tilte, and the little storm the buyer is now whipping up, rightly or wrongly, will see the matter go to Court, thus allowing him to take out an injuction.

If the scenario I am suggesting is in fact what is happening, can you not see how the buyer has now placed himself in a position in which he can now control "negotiations?"

"Should this Caveat/ claim cause the vendor to suffer any loss, resell the property, ongoing holding costs, the Caveator should be liable for all additional costs by reason of their default, contract breach and limitation caused by their action." - like I said, a farang versus a Thai, in a Thai Court, on Phuket, in relation to a case involving the sale of land - "Good luck with that."

Edited January 30, 2015 by NamKangMan

[NamKangMan]

The time required for a hearing and judgement on whether a Caveat is justified is minimal. The onus is on the Caveator to justify the claim and in this case would be hard to argue by a submission of default or breach of contract.

As land transactions require quick judgements, an exadited application to a court for a hearing and judgement on such issues can be dealt with in a few days, even by an out of hours session, if absolutely necessary.

"The time required for a hearing and judgement on whether a Caveat is justified is minimal." - no, the time taken to put a caveat in place, in Thailand, but I would suggest, particularly Phuket, is about the time it takes to hand someone an envelope full of money.

I get the feeling you work in real estate here.

[Reigntax]

The time required for a hearing and judgement on whether a Caveat is justified is minimal. The onus is on the Caveator to justify the claim and in this case would be hard to argue by a submission of default or breach of contract.

As land transactions require quick judgements, an exadited application to a court for a hearing and judgement on such issues can be dealt with in a few days, even by an out of hours session, if absolutely necessary.

"The time required for a hearing and judgement on whether a Caveat is justified is minimal." - no, the time taken to put a caveat in place, in Thailand, but I would suggest, particularly Phuket, is about the time it takes to hand someone an envelope full of money.

I get the feeling you work in real estate here.

No, I don't work there as It would drive me crazy. Don't live there, thought about it and won't until the country sorts itself out. If ever. But I think that's probably decades away. Unfortunately.

[Reigntax]

You could actually lodge a Caveat on title of any property but in doing so you want to make sure you have a legitimate claim because unless you can back it up with an enforceable document recognised by law you will be up for all costs and damages incurred by the title holder to defend an unjust claim.

Certainly, the purchaser has rights to a claim by virtue of an enforceable sale contract but these rights apply to both the vendor and purchaser.

In this case, the vendors claim of default by the purchaser is clearly non payment to finalise the contract as per the conditions and clauses contained therein.

For the purchaser, who we agree is in default, to argue for the contract to remain in force, would need to prove that either the vendor has misrepresented the land, the contract is incomplete or contains errors, the contract was not exchanged in accordance with any applicable law, his entitlement to sell the land did not exist or his breach or default was partly due in some way to the land in question or the contract itself. Inability to raise funds or access to funds would not be a reasonable or acceptable excuse.

As I assume both parties were legally represented, it would be hard to imagine any defect in the sale contract or any condition or clause that may be illegal or unenforceable, however should such exist and if a party is disadvantaged by this illegal inclusion, a ruling can be sought that the contract be interpreted as of this condition did not exist. It is hard to imagine a situation where this may exist.

The correspondence between legal representatives after exchange of contract will be the basis for determination of any justifiable argument but unless the land was grossly misrepresented it is hard to see the purchaser having any reasonably arguable defence. However should such grounds exist, the purchaser had the option to withdraw, renegotiate the contract based on misrepresentation or contract error, or renegotiate with the purchaser to extend settlement as agreed between both parties which I assume would be to pay additional costs.

[NamKangMan]

You could actually lodge a Caveat on title of any property but in doing so you want to make sure you have a legitimate claim because unless you can back it up with an enforceable document recognised by law you will be up for all costs and damages incurred by the title holder to defend an unjust claim.

Certainly, the purchaser has rights to a claim by virtue of an enforceable sale contract but these rights apply to both the vendor and purchaser.

In this case, the vendors claim of default by the purchaser is clearly non payment to finalise the contract as per the conditions and clauses contained therein.

For the purchaser, who we agree is in default, to argue for the contract to remain in force, would need to prove that either the vendor has misrepresented the land, the contract is incomplete or contains errors, the contract was not exchanged in accordance with any applicable law, his entitlement to sell the land did not exist or his breach or default was partly due in some way to the land in question or the contract itself. Inability to raise funds or access to funds would not be a reasonable or acceptable excuse.

As I assume both parties were legally represented, it would be hard to imagine any defect in the sale contract or any condition or clause that may be illegal or unenforceable, however should such exist and if a party is disadvantaged by this illegal inclusion, a ruling can be sought that the contract be interpreted as of this condition did not exist. It is hard to imagine a situation where this may exist.

The correspondence between legal representatives after exchange of contract will be the basis for determination of any justifiable argument but unless the land was grossly misrepresented it is hard to see the purchaser having any reasonably arguable defence. However should such grounds exist, the purchaser had the option to withdraw, renegotiate the contract based on misrepresentation or contract error, or renegotiate with the purchaser to extend settlement as agreed between both parties which I assume would be to pay additional costs.

You don't get it, do you?

"You could actually lodge a Caveat on title of any property but in doing so you want to make sure you have a legitimate claim - the "legitimate claim" is the buyer has lodged a 15 million baht deposit.

The document/s the buyer will rely on for the caveat to be issued will be a receipt of payment from the seller, bank transfer receipts etc. Easily proven.

The Court proceedings, which includes an injuction, is just the buyer playing for time. The buyer knows he has no case, but is using the legal system, particularly a corrupt Thai legal system, to strengthen his position in the transactions.

The case will probably never see inside a Court room, and the buyer knows this, despite the buyer being the one to instigate Court proceedings.

The buyers "end game" is not to seek a judgement from the Court - that's not part of his strategy.

Edited January 30, 2015 by NamKangMan

[Reigntax]

You could actually lodge a Caveat on title of any property but in doing so you want to make sure you have a legitimate claim because unless you can back it up with an enforceable document recognised by law you will be up for all costs and damages incurred by the title holder to defend an unjust claim.

Certainly, the purchaser has rights to a claim by virtue of an enforceable sale contract but these rights apply to both the vendor and purchaser.

In this case, the vendors claim of default by the purchaser is clearly non payment to finalise the contract as per the conditions and clauses contained therein.

For the purchaser, who we agree is in default, to argue for the contract to remain in force, would need to prove that either the vendor has misrepresented the land, the contract is incomplete or contains errors, the contract was not exchanged in accordance with any applicable law, his entitlement to sell the land did not exist or his breach or default was partly due in some way to the land in question or the contract itself. Inability to raise funds or access to funds would not be a reasonable or acceptable excuse.

As I assume both parties were legally represented, it would be hard to imagine any defect in the sale contract or any condition or clause that may be illegal or unenforceable, however should such exist and if a party is disadvantaged by this illegal inclusion, a ruling can be sought that the contract be interpreted as of this condition did not exist. It is hard to imagine a situation where this may exist.

The correspondence between legal representatives after exchange of contract will be the basis for determination of any justifiable argument but unless the land was grossly misrepresented it is hard to see the purchaser having any reasonably arguable defence. However should such grounds exist, the purchaser had the option to withdraw, renegotiate the contract based on misrepresentation or contract error, or renegotiate with the purchaser to extend settlement as agreed between both parties which I assume would be to pay additional costs.

You don't get it, do you?

"You could actually lodge a Caveat on title of any property but in doing so you want to make sure you have a legitimate claim - the "legitimate claim" is the buyer has lodged a 15 million baht deposit.

The document/s the buyer will rely on for the caveat to be issued will be a receipt of payment from the seller, bank transfer receipts etc. Easily proven.

The Court proceedings, which includes an injuction, is just the buyer playing for time. The buyer knows he has no case, but is using the legal system, particularly a corrupt Thai legal system, to strengthen his position in the transactions.

The case will probably never see inside a Court room, and the buyer knows this, despite the buyer being the one to instigate Court proceedings.

The buyers "end game" is not to seek a judgement from the Court - that's not part of his strategy.

The legitimate claim is the contract, not the receipt of the deposit. Receipt from the deposit is part of the contract conditions to enable the contract to commence and be enforceable. He would therefor have to use as his evidence the contract to which he has breached or defaulted.

Yes, I agree. Initially the purchaser had an interest in the title however we don't know whether this interest was registered. If it was registered, we are dealing with 2 seperate issues and possibly 2 different court jurisdictions and it's unlikely both issues will be heard, or need to be heard concurrently.

If a Caveat is registered, apply to a court to have it removed. The onus is on the Caveator to justify it but the OP does not state being notified of such having occurred. Even if the Caveat exists and is removed and later found to be justifiable, the purchaser rights are not extinguished by removal and this action and his loss, claims or damages are dealt with during the contract dispute action.

The purchaser is the default party. He can either settle the contract as agreed and if he believes he has some claim against the vendor for misrepresentation, he can commence action to recover these damages.

Alternatively, He then risks the chance the vendor may sell to someone else but this will only occur because of his breach and failure to settle payment.

I doubt any court would allow a registered interest to title of property to exist where the requesting party used in evidence, a contract to which they beached or defaulted and thereby restrict the non defaulting, legal title holder from dealing with his own property.

Yes, it would be nice to know whether an interest has been registered, details of the purchasers reasons for not finalising the sale, conditions of contract including default provisions but there is not really anything complicated in a sale contract and not many issues that are subject to interpretation.

Edited January 30, 2015 by Reigntax

[NamKangMan]

You don't get it, do you?

"You could actually lodge a Caveat on title of any property but in doing so you want to make sure you have a legitimate claim - the "legitimate claim" is the buyer has lodged a 15 million baht deposit.

The document/s the buyer will rely on for the caveat to be issued will be a receipt of payment from the seller, bank transfer receipts etc. Easily proven.

The Court proceedings, which includes an injuction, is just the buyer playing for time. The buyer knows he has no case, but is using the legal system, particularly a corrupt Thai legal system, to strengthen his position in the transactions.

The case will probably never see inside a Court room, and the buyer knows this, despite the buyer being the one to instigate Court proceedings.

The buyers "end game" is not to seek a judgement from the Court - that's not part of his strategy.

The legitimate claim is the contract, not the receipt of the deposit. Receipt from the deposit is part of the contract conditions to enable the contract to commence and be enforceable. He would therefor have to use as his evidence the contract to which he has breached or defaulted.

Yes, I agree. Initially the purchaser had an interest in the title however we don't know whether this interest was registered. If it was registered, we are dealing with 2 seperate issues and possibly 2 different court jurisdictions and it's unlikely both issues will be heard, or need to be heard concurrently.

If a Caveat is registered, apply to a court to have it removed. The onus is on the Caveator to justify it but the OP does not state being notified of such having occurred. Even if the Caveat exists and is removed and later found to be justifiable, the purchaser rights are not extinguished by removal and this action and his loss, claims or damages are dealt with during the contract dispute action.

The purchaser is the default party. He can either settle the contract as agreed and if he believes he has some claim against the vendor for misrepresentation, he can commence action to recover these damages.

Alternatively, He then risks the chance the vendor may sell to someone else but this will only occur because of his breach and failure to settle payment.

I doubt any court would allow a registered interest to title of property to exist where the requesting party used in evidence, a contract to which they beached or defaulted and thereby restrict the non defaulting, legal title holder from dealing with his own property.

Yes, it would be nice to know whether an interest has been registered, details of the purchasers reasons for not finalising the sale, conditions of contract including default provisions but there is not really anything complicated in a sale contract and not many issues that are subject to interpretation.

I agree with what you have said, and we definately need more factual information from the OP about this case, in order to make accurate comments.

You must also understand that the judicial system in Thailand, be it civil or criminal, can be manipulated, usually by way of bribes, to suit a plaintiff, or respondent, should they be prepared to pay for the Court to take a particular course of action, or find in one's favour.

On that basis, anything is possible in a Thai Court.

[Reigntax]

The legitimate claim is the contract, not the receipt of the deposit. Receipt from the deposit is part of the contract conditions to enable the contract to commence and be enforceable. He would therefor have to use as his evidence the contract to which he has breached or defaulted.

Yes, I agree. Initially the purchaser had an interest in the title however we don't know whether this interest was registered. If it was registered, we are dealing with 2 seperate issues and possibly 2 different court jurisdictions and it's unlikely both issues will be heard, or need to be heard concurrently.

If a Caveat is registered, apply to a court to have it removed. The onus is on the Caveator to justify it but the OP does not state being notified of such having occurred. Even if the Caveat exists and is removed and later found to be justifiable, the purchaser rights are not extinguished by removal and this action and his loss, claims or damages are dealt with during the contract dispute action.

The purchaser is the default party. He can either settle the contract as agreed and if he believes he has some claim against the vendor for misrepresentation, he can commence action to recover these damages.

Alternatively, He then risks the chance the vendor may sell to someone else but this will only occur because of his breach and failure to settle payment.

I doubt any court would allow a registered interest to title of property to exist where the requesting party used in evidence, a contract to which they beached or defaulted and thereby restrict the non defaulting, legal title holder from dealing with his own property.

Yes, it would be nice to know whether an interest has been registered, details of the purchasers reasons for not finalising the sale, conditions of contract including default provisions but there is not really anything complicated in a sale contract and not many issues that are subject to interpretation.

I agree with what you have said, and we definately need more factual information from the OP about this case, in order to make accurate comments.

You must also understand that the judicial system in Thailand, be it civil or criminal, can be manipulated, usually by way of bribes, to suit a plaintiff, or respondent, should they be prepared to pay for the Court to take a particular course of action, or find in one's favour.

On that basis, anything is possible in a Thai Court.

Agreed and from what I've heard is that anything is possible in a Thai court. I don't know first hand but I do know that most people who lose a case feel hard done by and that external factors were in play. Given the value and potential damages involved, I doubt a local court can deal with it. Issues related to land title Caveats are usually dealt with at a Supreme Court level to avoid delays by appeals to higher courts and very rarely are they more than a formality as you either have evidence to support a claim or you don't.

The way I would look at the situation right now is that the vendor has 20 mil of the purchaser money to fund a case against him and that's probably more than enough. Property prices will probably rise and the vendor would appear to have a solid case of a tight contract.

If I was the purchaser, there would be nothing more annoying than the vendor using my money to fund a case against me. That would p..ss me off totally!