Property Trade Association
Thai Civil & Commercial Codes set out the laws, but also allows for additional clauses, agreed by both parties, to ammend those laws in certain cases.Jockey wrote:Correct me if I'm wrong - but putting a clause into a contract that overrides the law does not hold any water. You can not dictate the law by writing a clause in a contract that contradicts or attempts to change the law.
If both parties agreed to the English translation, would the court overrule that ? Who knows. Thai translations often are so far off the mark they do not have a coherent meaning, in this case there is another clause in Thai Law that would override the clause about the Thai interpretation prevailing. Confused, you will be.
Yes, Thai court proceedings are conducted in Thai, but that's separate from the interpretation of a particular clause.
In any case, important point for consumers:
The Association is stipulating its members agree to go through the official Thai Arbitration Act process before court. Developers can no longer say 'sue me', knowing how hard it is. Arbitration process is much faster, less initimidating and far far easier for consumer to make his point.
Extract from Thai Arbitration Law: "Language of arbitration: The parties may specify the language to be used in the arbitration"
So consumer can sit round a table and make his case instead of sitting in court listening to his lawyer talk in Thai and not knowing whether his facts are really being put across correctly.
SJ
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malcolminthemiddle
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How about a clause that states some thing along the lines of "The Member shall have no objection to and support the transfer of the management and maintenance of the common areas and control of the utilities to either the consumer or in the case of multiple consumers a Residents Association established for that purpose."VCP wrote:Any comments on this matter would be greatly appreciated. You can drop them onto this open forum for discussion or PM me directly if you have any pearls of wisdom.
I believe Thai legislation namely the Land Allocation Act already gives this legal right to any Residents Association registered as a juristic entity. Does any one have any more details/experience on this issue? Any one have an english copy of the Land Allocation Act?
Jockey: We've been told that the clause will hold water as long as it's mutually agreed to by both parties involved.
SJ: Our reasoning is exactly that. Try and work out the issues before they get tied up in legal red tape for years on end without a clear light at the end of the tunnel
Malcolm: Sounds like we can have that included as the last point. Let me run it by the group as a whole, although the idea does make absolutely viable sense, and so I don't believe they would have any reason to be against it.
SJ: Our reasoning is exactly that. Try and work out the issues before they get tied up in legal red tape for years on end without a clear light at the end of the tunnel
Malcolm: Sounds like we can have that included as the last point. Let me run it by the group as a whole, although the idea does make absolutely viable sense, and so I don't believe they would have any reason to be against it.
I agree to having limited knowledge in this topic, but if the Property Association were to use the Thai Arbitration Institute (TAI) then I agree they will arbitrate in the English language as they already have forms written in English I'm not sure about other more obscure languages - I suppose that would depend on the lawyers affiliated to the TAI, ability to speak the desired language. If the TAI are going to be used as a mandatory rule for membership of the property association I think this will be an excellent step forward. Question - is the TAI to be used or will it be some other arbitory body?
I stick by my earlier statement that Thai courts will only accept Thai written contracts, however if most cases can be solved without the need to go to court this must be a good thing.
I've said before in another thread - the best way to safeguard the consumer is to create some form of secure Escrow account, whereby the developer can not touch any money paid by the consumer until the property is built and handed over to the consumer in a satisfactory manner.
I stick by my earlier statement that Thai courts will only accept Thai written contracts, however if most cases can be solved without the need to go to court this must be a good thing.
I've said before in another thread - the best way to safeguard the consumer is to create some form of secure Escrow account, whereby the developer can not touch any money paid by the consumer until the property is built and handed over to the consumer in a satisfactory manner.
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Cowtown Comedy
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Clive,
Some of the proposed Articles may seem obvious or unneccessary, but the unfortunate truth is that traders have too often sold land that is not theirs or been un-able/willing to clear lien or before the date of transfer. Some developers go ahead and build without dividing their land and without seeking building permits. Wine and dine (euphamism) a couple of officials and all can be put in order - I've seen it several times. I've also seen fairly significant changes to a build or finishing plan being agreed and not followed up with documentation. One could go on ... there are many stories, many dodges and many pitfalls.
You're right that a good realtor should check everything beforehand, can veto dodgy developers and can mediate between the two when required. Some realtors do provide professional quality services, but there are also realtors who do none of these things. Buyers don't always want to use brokers, and developers often prefer to do their own marketing and sales.
I feel that every little detail of the best-practise principles under which we should work should be written in the association's charter, obvious points or otherwise, to make everything very clear indeed.
cd.
Some of the proposed Articles may seem obvious or unneccessary, but the unfortunate truth is that traders have too often sold land that is not theirs or been un-able/willing to clear lien or before the date of transfer. Some developers go ahead and build without dividing their land and without seeking building permits. Wine and dine (euphamism) a couple of officials and all can be put in order - I've seen it several times. I've also seen fairly significant changes to a build or finishing plan being agreed and not followed up with documentation. One could go on ... there are many stories, many dodges and many pitfalls.
You're right that a good realtor should check everything beforehand, can veto dodgy developers and can mediate between the two when required. Some realtors do provide professional quality services, but there are also realtors who do none of these things. Buyers don't always want to use brokers, and developers often prefer to do their own marketing and sales.
I feel that every little detail of the best-practise principles under which we should work should be written in the association's charter, obvious points or otherwise, to make everything very clear indeed.
cd.
All that is necessary for evil to triumph is for good men to do nothing. (Edmund Burke).
Just to clarify:Thai courts will only accept Thai written contracts
Thai courts accept any foreign language written contracts, even foreign verbal contracts if you both agree to content of verbal agreement.
Thai law does state that IF there is also a Thai version of the contract, then if any discrepancy the Thai version will prevail.
They will though accept a foreign language written contract it just needs translating into Thai for the court proceedings, so anyone reading with an English only contract, and there's a lot of you, do not stress it's legally binding.
Also if any of you have now realised you signed something unreasonably unfair or biased against you in accordance with standard law, or that applies damages or withholding of deposits in excess of the other parties costs etc, do not stress the clause in question is most likely not be legally binding, whether you signed it or not.
SJ