Article Category - Legal Sense

A BRITISH tourist who spent three weeks in a crowded Phuket prison after immigration officials challenged his topless passport picture, says despite his ‘nightmare ordeal’, his Phuket holiday was one of the best holidays he has ever had. Martial arts expert, Simon Burrowes, 44, was jailed after immigration officers accused him of having a false passport and swearing at them.

THE number of foreigners applying for permission to work in Phuket has increased over the past 12 months. Most of the applications have come from people involved in the diving and hotel businesses. According to figures released by Phuket’s Provincial Employment Office, 8555 work permits were issued to foreigners in January this year compared to 7846 in January last year.

WE are all being scammed every day, and we very rarely even know about it. And it’s not just the punters who are being ripped off, business owners are also falling prey to the light fingered fraternity. We are being overcharged and short-changed in shops and supermarkets, and bosses all over the island are being swindled by staff who have worked out a myriad of ways to tickle the tills.

PHUKET’S Immigration Superintendent, Pol Col Chanatpol Yongbunjerd, is confident that 2009 will be a good year for Phuket. “The political troubles of last year are behind us, and we are positive that tourist faith in Phuket will be restored,” he said. The airport closures which caused havoc across the Kingdom, resulted in scores of tourists coming into the Phuket immigration office to ask about penalties for overstaying their visas.

WHEN Dr Preecha Ruangjan was appointed Governor of Phuket in November last year, he knew he had a big job ahead of him. During his first three months in the job, Dr Preecha has moved to ensure the longevity of Phuket’s tourist industry, he has taken control of conservation projects and is working overtime to cut the island’s crime rates. He has also campaigned to reduce the holiday road toll, he has put in motion plans to combat the world’s economic crisis and rebuild Phuket’s tourist industry, and he has declared war on drug pushers in the province.

Investors considering purchasing a condominium, investing through a Thai company into freehold or becoming a long term lessee will spend some time considering how safe each option is in terms of legal and practical problems with each method. Investors should be aware that the legal rights and protections they acquire differ greatly under Thai law depending on the type of investment or purchase of property. Setting up a Thai company and investing in property in Thailand is a well documented exercise. However, the effect of being considered a Thai in the eyes of the law in respect of freehold purchase through a Thai company comes at a price. Caution must be taken to ensure compliance by the Thai company with the regulations of the Ministry of Commerce and Land Office in relation to the shareholders of the Thai company.

It is common within the Phuket real estate market for developers or sellers of properties to ask a potential buyer to sign a reservation agreement. From a seller’s perspective, a reservation agreement might primarily be regarded as a marketing tool to achieve an early commitment from a buyer with the aim to close the sale within a short period of time. However, a buyer may also utilize a reservation agreement to negotiate with the seller at an early stage to determine essential terms and conditions of a future property acquisition. It is therefore recommendable for both seller and buyer to pay attention to the terms and conditions of a reservation agreement. The minimum content of a reservation agreement will state the details of the parties involved and the object of the envisaged transaction. This document will also include the agreed purchase price and a specific period of time for which the parties shall be bound to the reservation. Although the length of the reservation period will mostly be predetermined in the reservation agreement supplied by a seller or an agent, it is noteworthy that such a period is freely negotiable between the parties.

While many real estate investors in Phuket purchase off-plan or newly constructed properties directly from the developer, many investors may find the perfect tropical residence offered for sale by a private seller. As the real estate market matures over the next few years, more and more buyers will find themselves purchasing from private sellers rather than developers. A private seller will usually own the target property in one of two ways: either in their own individual name (or names), or alternatively by owning all of the shares in a private company (usually an offshore company) which owns the target property. The trend in Phuket over the past few years is for buyers to use companies registered in the British Virgin Islands (BVI).

An issue that frequently arises in property purchase transactions in Thailand is who should be responsible for the registration fees and taxes payable upon the transfer of property title. The registration fees and taxes can amount to a significant premium on the purchase price and consequently the point is well worth negotiating with the Seller.

Belmont Limcharoen has been monitoring the changes proposed to the Foreign Business Act (FBA) and appreciates that there will be many parties interested in the outcome of the implementation of the changes and their application in relation to foreign investment in the real estate sector.

Media has a significant role to play in life in Phuket and certainly with the number of companies and organisations involved in the distribution of media, an awareness of the boundaries of the laws in Thailand, which are different to laws in other jurisdictions, is valuable. Furthermore, where the ‘grapevine’ or ‘gossip’ forums are now ever increasing through the technology-based forms of communication – email, personal digital assistants and instant messaging chat tools – those that write their thoughts ought to exercise caution before putting pen to paper or, in today’s world, finger to “Qwerty” keyboard.

The use of the word “perpetual” has caused some enquiries in recent weeks. A lease to a foreigner in relation to land is restricted to a maximum term of 30 years. Section 540 of the Civil and Commercial Code, which relates to the hire of immovable property states that “the duration of a hire of immovable property cannot exceed thirty years. If it is made for a longer period, it is to be reduced to thirty years”. The important proviso that foreigners often make enquiries about is “the aforesaid period may be renewed, but it must not exceed thirty years from the time of renewal”.

It is not possible to accurately predict the legal effects of the coup in the coming months. However, from a civil perspective, when parties are in contract with each other and a major event such as a coup interferes in either parties’ obligations, there can be a legitimate analysis of a contract to ensure hat there is provision for unforeseen events, beyond the control of the parties that may interfere with the fulfillment of their duties.

Phuketians and residents often hear of various clubs, associations or organisations that deal with a particular aspect of community or society, and there are some prominent associations in Thailand.

Last month Phuket Post reported on the recent tightening of procedures at the Ministry of Commerce and land offices across Thailand regarding companies in which there are foreign interests and the issue of ‘nominee shareholders’.

There were several questions posed to the Legal Eagles panel at the recent IBAP evening, at Phuja Nirvana on 11 August, but for this article I should like to focus on a few of the key questions and a summary of answers. The answers on the night were obviously more detailed given the time available to panelists to answer. I have written the questions verbatim in the style they were posed.

When acquiring or investing a villa or apartment, in addition to the normal legal considerations relating to an investment, it is worth establishing if there are any additional contractual issues a buyer may wish to deal with before completion of a purchase.

Sales in the off-the-plan market will often involve a construction contract under which the buyer or future lessee is expected to become the employer of the developer who is then obliged to carry out the work. Sometimes, an off-plan sale will be structured as a sale and purchase and in that instance the seller is simply obliged to deliver the unit as agreed.

Land ownership will always be a sensitive issue for Thai people, and there would be controversial political consequences for any government that tried to change the Land Code to accommodate foreign ownership.

From the volume of construction and development, number of real estate agencies and the number of transactions turning over in Phuket, there is the consequence that there must be a proportionately large volume of money ‘at risk’ before and after title transfer.