What Do You Do When a Property Deal Goes Bad?
Category: Newspaper / Magazine Columns
We do not live in a perfect world. If we did, I would not bother writing this column, and would endlessly shuttle between my vineyard in the South of France and a ranch in the high plains of New Zealand.
But I would stop off in Phuket for breaks at my villa on the beach in Natai, when time allowed, and pick up a box full of mangoes for the road.
But there is no such perfection.
For many property buyers who come to this island's shores what was expected to be their own personal heaven, turns out into a journey into hell. No ordinary flaming down under for these folks - and yes, it's worse than being jumped by a gang of tuktuk drivers hopped-up on M150 with a very bad attitudes.
Over the past three or four years, rarely does a month passes by without an email, call or someone dropping into the office with a woeful tale about a tragic property transaction. Lately, there have been more than I can remember.
Failed launches, errant developers, contracts broken, money unreturned and often little to show for paid up property, except for some rusting metal rebars in decaying concrete.
As I sit and listen, my mind flicks over to what we can term the first deadly sin.
My mouth lets out the words: "So who was your lawyer who handled the due diligence and negotiated the contract?" Often times the silence is so still I can hear my dog barking at home which is about three kilometers away.
Buzz, wrong answer.
Still an amazing number did have some sort of legal advice, but in the wacky world of Phuket property, where for a decade foreign buyers ruled the market, some deals have come unhinged.
In the boom days, condos were few and far between, and the gray shroud of foreign ownership as well as the relatively unrestricted leasehold structures created a plethora of ownership hybrids.
Many developers did the best they could under the legal limitations, and there remains for the most part many satisfied buyers.
But this article is meant to address the other side, those who have been ripped off or taken advantage of, and left with little but a bad taste of Phuket's brand of paradise.
For some who contact me (and after hearing their stories and seeing the documents) I can't help but feel a certain amount of loathing for the failure of some to simply stand and deliver what was promised. Goods in return for money paid.
I spoke to the legal advisor Desmond Hughes about how buyers could address defaults. He cited the Office of Consumer Protection Board (OCPB) in Bangkok which covers consumers and non-commercial investments in cases such as condos, leasehold apartments and villas.
Bangkok only covers the Metropolitan area, so in Phuket there is a local office at the Provincial Hall. Complaints can be filed by individuals whether legal advice has been obtained or not.
In the case of properties that have guaranteed returns, it remains subject to interpretation whether these are property ownership or investment issues and if the latter, then in many cases these are referred to civil action.
Another legal eagle, Jerrold Kippen, suggests a practical solution for new buyers; that contracts should include a binding arbitration clause. This allows for unbiased resolution. Having personally attended cases in Bangkok at the Thai Arbitration Institute I've been suitably impressed that the venue provides an equitable forum for buyer and developer disputes.
Kippen adds that both the Condominium Juristic Act (revised in 2008) and the Consumer Case Protection Act and Product Liability Act (both from 2008) have technically provided a clearer solution for property buyers. But in actual fact, as in many cases with government regulations, implementation on the ground has been spotty.
Many things in Thailand are neither black nor white but falls somewhere in between.
Long time legal personality Sam Fauma said that in many cases his clients had seen little action by the Consumer Board, but suggested that the most effective course was often to file a civil court case citing the Act itself. This seemingly has met with more success.
The bottom line at present is that the aggrieved property buyers best obtain competent legal council because the method of doing it yourself with the consumer mechanism is not overly competent at present. That given, things are changing and consumer rights are moving ahead in the country at a certain pace.
As for the search for a perfect world, if things don't work out the way you expected, the next best step is to get the best legal advice possible.