Possibility of refunded down payment

[scroggins]

Hello everyone,

I'm in a bit of a tricky situation and I'm hoping the experts on this forum will be able to shed some light on the issue.

Last year, my wife and I decided to buy a small condo in Bangkok in a new development project. Three buildings had already been completed, and the company asked us to pay a 15% down payment to secure a unit in the next building to be constructed. We put the down payment on my credit card to avoid the hassle of transferring money from the States, as well as to have a bit of security if things went sour.

Now, my first mistake may have been trusting my wife to handle everything - not because she is dishonest, but because she is not very careful. I fear she did not read the contract very carefully, and may have chosen a somewhat unreliable operator.

The first red flag came the day she completed the down payment, as she got home and realized that the contract they had given her contained the wrong information: wrong name, date, and even apartment details. She swears she had checked it carefully while in the office, and that they had switched the forms without her realizing it. Perhaps.

At any rate, she returned the next day and they blamed the error on a new employee, then promptly printed up a new contract with the correct details.

Fast-forward to December, and the company contacted us to let us know that the condo was nearing completion and we would be expected to pay the remaining amount by the end of January. My wife traveled to Thailand to inspect the unit and take care of the payment and paperwork, only to encounter a slew of additional problems.

First, the apartment was slightly smaller than what the contract had stipulated, though upon further inspection the fine print indicated that the final size might be slightly different than anticipated. Second, the ceiling was much lower than in the model they had shown my wife, which resulted in a rather suffocating ambiance. My wife says she never would have agreed to purchase the condo if she knew the ceiling would be so low and boxy, but, of course, a closer examination of the fine print revealed that it such a ceiling was indeed possible.

Third, the company now insisted, in spite of previous assurances to the contrary, that we would not be able to complete the remainder of the payment using a credit card, which was our preferred method due to the reasons mentioned above. After much discussion, they reluctantly agreed to allow us to use the card, but only if we paid an additional 3% - in spite of the fact that this fee had not been levied when we paid the deposit, and they had no documentation to suggest this was an official policy.

After a couple of weeks, the company agreed to accept payment via credit card, but then claimed that as a result it would take at least one month to transfer ownership of the condo to my wife's name. According to my wife, the contract clearly states that ownership would be transferred within one week of completing the payment, and the company has offered no explanation for the delay.

After so many issues with this company, we are having serious doubts about whether we should go forward with the purchase, and in fact the ceiling alone is cause enough for us to no longer want the condo.

Is there any way we could reasonably expect to get the down payment returned? As I see it there are two possible routes: filing a fraud complaint with the credit card company (preferable, but tricky), or suing the company through the Thai legal system.

I realize the situation is a bit grim, and it is entirely due to our failure to carefully check the contract before committing (or hiring a lawyer), but any advice this forum may provide will be greatly appreciated.

Thank you in advance for taking the time to read this, and for sharing your expertise.

[huawei]

You only transfer at the time of payment. Not later. Also ensure that all your defects have been resolved. Finally, is there a 6 meter fire road around the building, if not they have not complied with the current safety laws so ask for a refund..

Why should it take a month after payment..don't feel pressurised..take your time.

Make sure what has been advertised has been delivered. Make sure all the common area facilities have been transferred. Ask questions about everything.

I have never heard of a transfer being after final payment..but someone maybe able to enlighten me (us).

[scroggins]

Thanks for the tips, Huawei. According to the contract, we are supposed to complete the remainder of the payment by the end of January, but the delay in transferring ownership is puzzling.

Your point regarding the need for a six meter fire road is interesting... does that need to be around each building in the complex, or simply around the perimeter of the entire property? Do you happen to know where I could find the text of that law?

Thanks again.

[trogers]

Thanks for the tips, Huawei. According to the contract, we are supposed to complete the remainder of the payment by the end of January, but the delay in transferring ownership is puzzling.

Your point regarding the need for a six meter fire road is interesting... does that need to be around each building in the complex, or simply around the perimeter of the entire property? Do you happen to know where I could find the text of that law?

Thanks again.

3 metres clearance between property line and building should the building not exceed 23m (about 8 floors) in height. 6m clearance when building is higher than 23m.

[trogers]

Balance of money should be paid by cashier's cheque made to the name of the development company and handed over to them at the Land office on the day of issuing the title deed.

[Crossy]

I can see potential issues getting a Foreign Exchange Transfer Form (used to be called a Tor Tor 3) which is required by the land office to show the funds came from abroad, perhaps that's what is causing the delay.

By far the best way would be to transfer the funds into your local bank account then take cash or a cashiers cheque to the land office along with the developer to get the transfer done on the spot.

[KittenKong]

If the OP has signed a contract that allows for significant changes to the design or dimensions of the unit then he in a bad position. However, it might be worth approaching the local Thai consumer protection people, taking any advertising brochures he may have retained, as under Thai law these brochures do form part of the description. They may be interested in the apparently unfair contract terms also.

It may be that under pressure from the consumer protection office some discount can be arranged, or possibly even the cancelling of the contract.

Other people in other areas have had some success with this approach, and it's free.

[trogers]

I can see potential issues getting a Foreign Exchange Transfer Form (used to be called a Tor Tor 3) which is required by the land office to show the funds came from abroad, perhaps that's what is causing the delay.

By far the best way would be to transfer the funds into your local bank account then take cash or a cashiers cheque to the land office along with the developer to get the transfer done on the spot.

I prefer cashier's cheque which documents the financial transaction.

[huawei]

Thanks for the tips, Huawei. According to the contract, we are supposed to complete the remainder of the payment by the end of January, but the delay in transferring ownership is puzzling.

Your point regarding the need for a six meter fire road is interesting... does that need to be around each building in the complex, or simply around the perimeter of the entire property? Do you happen to know where I could find the text of that law?

Thanks again.

Trodgers gave you the requirements.

I think it's in the buildings control, but have no specific reference.

I suggest you email them asking them to confirm that they have complied with the fire road requirements. As you are concerned about your own safety.

Make a nuisance of yourself. Ask them to list of the common properties and ensure they are as stated in the contract. Given multiple buildings it will be interesting see if they have transferred the pool of example.

Ask for the buildings rules and regulations. Every condo has them. If they say they haven't got one, say you will not transfer until you do have a copy and that is your right. As some buildings have already been built they should exist. Read them.

Ask for information on these 3 aspects.

1. The fire road.

2. Common properties.

3. Rules and regulations booklet.

Good luck.

[scroggins]

Thanks, everyone, for the helpful advice. I should have clarified that my wife is in Thailand at the moment but I am not, so she is the one dealing with this.

3 metres clearance between property line and building should the building not exceed 23m (about 8 floors) in height. 6m clearance when building is higher than 23m.

Thanks for clarifying. I apologize for being repetitive, but does this mean the road/space does not need to be around the entire building, but only on one side (presumably the one nearest the edge of the property)?

I can see potential issues getting a Foreign Exchange Transfer Form (used to be called a Tor Tor 3) which is required by the land office to show the funds came from abroad, perhaps that's what is causing the delay.

Since the condo will be in wife's name, is it necessary to show that the funds came from abroad?

If the OP has signed a contract that allows for significant changes to the design or dimensions of the unit then he in a bad position. However, it might be worth approaching the local Thai consumer protection people, taking any advertising brochures he may have retained, as under Thai law these brochures do form part of the description. They may be interested in the apparently unfair contract terms also.

Thanks for the tip; we will certainly try this. During the sales pitch, they explicitly stated that our unit would be exactly the same as the model shown, but the contract contained some nasty fine print which my wife failed to read. I think she retained the sales brochures, though, so that should be helpful.

Ask for information on these 3 aspects.

1. The fire road.
2. Common properties.
3. Rules and regulations booklet.

Thanks for the excellent advice. Would a legal office, such as Sunbelt, be able to provide much assistance in this situation?

Thanks again for all of your extremely helpful replies!

[trogers]

Thanks for the tips, Huawei. According to the contract, we are supposed to complete the remainder of the payment by the end of January, but the delay in transferring ownership is puzzling.

Your point regarding the need for a six meter fire road is interesting... does that need to be around each building in the complex, or simply around the perimeter of the entire property? Do you happen to know where I could find the text of that law?

Thanks again.

3 metres clearance between property line and building should the building not exceed 23m (about 8 floors) in height. 6m clearance when building is higher than 23m.

Think of the clearance as an internal boundary drawn on all sides, and the building(s) has to be within this boundary.

[scroggins]

Thanks, trogers. I'll ask my wife to check it out tomorrow.

[WorkingTourist]

If you pay by credit card the developer will have to pay 3% to the credit card processor, so I think it’s only fair that they ask you to pay this, as normally condos are not paid for by credit card (so this fee is not part of the price).

If your condo is smaller than what the contract states, you would normally adjust the price accordingly.

Getting down payment back: Since the developer did their part, you don’t really have a case.

I don’t know what the total price is (of which you paid 15%), but maybe you can make a deal where you get back half or they can try to resell the condo and refund you the down payment if they succeed.

As for the low ceiling, I was succesful in getting a ceiling raised in a condo I bought, so might not be impossible for you to get it raised if there is actually space enough above it and convince that foreigners cannot live with a 2 meter ceiling height.

[huawei]

Thanks, everyone, for the helpful advice. I should have clarified that my wife is in Thailand at the moment but I am not, so she is the one dealing with this.

3 metres clearance between property line and building should the building not exceed 23m (about 8 floors) in height. 6m clearance when building is higher than 23m.

Thanks for clarifying. I apologize for being repetitive, but does this mean the road/space does not need to be around the entire building, but only on one side (presumably the one nearest the edge of the property)?

I can see potential issues getting a Foreign Exchange Transfer Form (used to be called a Tor Tor 3) which is required by the land office to show the funds came from abroad, perhaps that's what is causing the delay.

Since the condo will be in wife's name, is it necessary to show that the funds came from abroad?

If the OP has signed a contract that allows for significant changes to the design or dimensions of the unit then he in a bad position. However, it might be worth approaching the local Thai consumer protection people, taking any advertising brochures he may have retained, as under Thai law these brochures do form part of the description. They may be interested in the apparently unfair contract terms also.

Thanks for the tip; we will certainly try this. During the sales pitch, they explicitly stated that our unit would be exactly the same as the model shown, but the contract contained some nasty fine print which my wife failed to read. I think she retained the sales brochures, though, so that should be helpful.

Ask for information on these 3 aspects.

1. The fire road.

2. Common properties.

3. Rules and regulations booklet.

Thanks for the excellent advice. Would a legal office, such as Sunbelt, be able to provide much assistance in this situation?

Thanks again for all of your extremely helpful replies!

No. Just after for clarification from them.

1. Is the building compliant.

2. Please provide a list of common properties. In English.

3. Please provide the booklet. In English.

It isn't a legal issue until they don't respond! If they don't respond then red flags.

[scroggins]

If you pay by credit card the developer will have to pay 3% to the credit card processor, so I think it’s only fair that they ask you to pay this, as normally condos are not paid for by credit card (so this fee is not part of the price).

If your condo is smaller than what the contract states, you would normally adjust the price accordingly.

Getting down payment back: Since the developer did their part, you don’t really have a case.

I don’t know what the total price is (of which you paid 15%), but maybe you can make a deal where you get back half or they can try to resell the condo and refund you the down payment if they succeed.

As for the low ceiling, I was succesful in getting a ceiling raised in a condo I bought, so might not be impossible for you to get it raised if there is actually space enough above it and convince that foreigners cannot live with a 2 meter ceiling height.

I understand that it is a bit unusual to pay for a condo with a credit card. However, we checked with the company months in advance to see whether it would be possible (after using a card for the deposit), and they assured us it wouldn't be a problem. Had we known a 3% fee would be levied, we could have arranged to transfer the money from the US.

We will have to follow up on getting the ceiling raised, because that is a fairly major issue.

No. Just after for clarification from them.

1. Is the building compliant.

2. Please provide a list of common properties. In English.

3. Please provide the booklet. In English.

It isn't a legal issue until they don't respond! If they don't respond then red flags.

Thanks for the clarification. They have actually provided items 2 and 3 (in Thai), but we're still waiting for item 1. I'll inquire about getting 2 and 3 in English.

Thanks again, everyone.

[huawei]

^^^ why can't they just provide the annual safety report that each condo has to do each year by an independent qualified architect.

[scroggins]

^^^ why can't they just provide the annual safety report that each condo has to do each year by an independent qualified architect.

I'll tell my wife to ask.

[blackcab]

There is no way you could reasonably expect to get the down payment returned. You have a contract, and it seems the developer acted within the terms of the contract. You have no case for non performance.

Your best hope would be to sell the unit on, which might be tricky if it looks like the builders were from middle earth.

[scroggins]

There is no way you could reasonably expect to get the down payment returned. You have a contract, and it seems the developer acted within the terms of the contract. You have no case for non performance.

Your best hope would be to sell the unit on, which might be tricky if it looks like the builders were from middle earth.

Unfortunately, I think you are probably correct. We've decided at this point to go forward with the purchase.

Thanks again for all of the extremely helpful responses.

[blackcab]

There is no way you could reasonably expect to get the down payment returned. You have a contract, and it seems the developer acted within the terms of the contract. You have no case for non performance.

Your best hope would be to sell the unit on, which might be tricky if it looks like the builders were from middle earth.

Unfortunately, I think you are probably correct. We've decided at this point to go forward with the purchase.

Thanks again for all of the extremely helpful responses.

Why would you do that? Sounds like throwing good money after bad. Do you seriously think you will be able to sell at the same price? New buyers who are buying from the developer will probably be able to get finance with a small deposit. Buyers won't be able to do that with your unit.

You also won't be able to sell your second hand unit for the same price as the developer while the developer still has new units left to sell.

Before you purchase you might also want to investigate why the ceiling is low. The builder didn't make extra work for themselves and go out of their way to do that specially. Either the concrete ceilings are low and you are stuck with it, or they are the correct dimensions but the ceiling is hiding pipework, etc.

Depending on the amount it might be easier in the long term to walk away from the deposit and to actually do it better next time. Don't use your partner for translations of complicated contracts that there is every likelihood they either don't understand or even if they do understand they posdibly can not accurately translate for you. Pay a good quality translation company instead.

Up to you. I'd be tempted to call it an expensive education.

[scroggins]

There is no way you could reasonably expect to get the down payment returned. You have a contract, and it seems the developer acted within the terms of the contract. You have no case for non performance.

Your best hope would be to sell the unit on, which might be tricky if it looks like the builders were from middle earth.

Unfortunately, I think you are probably correct. We've decided at this point to go forward with the purchase.

Thanks again for all of the extremely helpful responses.

Why would you do that? Sounds like throwing good money after bad. Do you seriously think you will be able to sell at the same price? New buyers who are buying from the developer will probably be able to get finance with a small deposit. Buyers won't be able to do that with your unit.

You also won't be able to sell your second hand unit for the same price as the developer while the developer still has new units left to sell.

Before you purchase you might also want to investigate why the ceiling is low. The builder didn't make extra work for themselves and go out of their way to do that specially. Either the concrete ceilings are low and you are stuck with it, or they are the correct dimensions but the ceiling is hiding pipework, etc.

Depending on the amount it might be easier in the long term to walk away from the deposit and to actually do it better next time. Don't use your partner for translations of complicated contracts that there is every likelihood they either don't understand or even if they do understand they posdibly can not accurately translate for you. Pay a good quality translation company instead.

Up to you. I'd be tempted to call it an expensive education.

It turns out that the ceiling issue may not be such a big deal after all. As I stated, I am not in Thailand so I have not been to see the unit, but apparently the discrepancy is due to the fact that the model unit had recessed lighting, while those for sale do not. I suppose it would be worth checking into whether it would be possible to install such a recessed ceiling into our condo, or whether there are pipes/wires that make it impossible.

Obviously, the situation is not ideal, but as you pointed out the company has not breached the terms of the contract, and I'm not prepared to write off the down payment due to the lack of a partially recessed ceiling.

I had planned to post a photo, but the only option I see is to include a URL. Is there any way to attach a picture to this post?

[blackcab]

Yes but not in mobile mode. You need to click full version at the bottom of the page and use the desktop site.

[scroggins]

This is a photo of the model unit, which includes the recessed lighting. I don't have a photo of our actual condo, but my understanding is that the ceiling would be just over the glass door, as it is for the first few feet in the model.

Edited January 16, 2016 by scroggins

[WorkingTourist]

That’s disappointing with the ceiling, presumably the developer ran into problems, but, as has at least been my experience, if you don’t ask about things, they don’t inform you, and it pays to follow the development closely, because changes are certainly not uncommon (also outside Thailand).

In your situation, I would suggest your partner convey your huge disappointment to the developer and suggest some sort of compensation. Given the magnitude of the change, this seems fair, even if the contract allowed for it.

[hhgz]

Have you ever considered speaking with them, or actually reading your sale contract?

[trogers]

This is a photo of the model unit, which includes the recessed lighting. I don't have a photo of our actual condo, but my understanding is that the ceiling would be just over the glass door, as it is for the first few feet in the model.

This is just typical 30+sqm glorified studio unit.

A true 1-bedroom unit would see a window or balcony with sliding door at the living area (sofa, TV) to allow in natural light and ventilation.

As it is, all you actually have is a glass sliding door between the bed and sofa, and with only a window next to the bed.

[scroggins]

Have you ever considered speaking with them, or actually reading your sale contract?

Yes.

This is a photo of the model unit, which includes the recessed lighting. I don't have a photo of our actual condo, but my understanding is that the ceiling would be just over the glass door, as it is for the first few feet in the model.

This is just typical 30+sqm glorified studio unit.

A true 1-bedroom unit would see a window or balcony with sliding door at the living area (sofa, TV) to allow in natural light and ventilation.

As it is, all you actually have is a glass sliding door between the bed and sofa, and with only a window next to the bed.

That's a fairly accurate description, although there is a small balcony. It's basically a place for my wife to stay when she visits Thailand.

Edited January 19, 2016 by scroggins

[trogers]

Have you ever considered speaking with them, or actually reading your sale contract?

Yes.

This is a photo of the model unit, which includes the recessed lighting. I don't have a photo of our actual condo, but my understanding is that the ceiling would be just over the glass door, as it is for the first few feet in the model.

This is just typical 30+sqm glorified studio unit.

A true 1-bedroom unit would see a window or balcony with sliding door at the living area (sofa, TV) to allow in natural light and ventilation.

As it is, all you actually have is a glass sliding door between the bed and sofa, and with only a window next to the bed.

That's a fairly accurate description, although there is a small balcony. It's basically a place for my wife to stay when she visits Thailand, although we will consider renting for the right tenant.

Yes, I have seen this layout being sold by a number of 'large' developers like Lumpini, AP, etc.

Unit dimensions are typically 4 x 8+ metres, bedroom width 2.7m and pantry to balcony for washing and hanging air-con compressor with width 1.3m.

If the unit is left vacant during times your wife is overseas, make sure the balcony is not accessible from the balcony of the next door unit.