Dear Committee,
I would like to apologize for the late reply on this issue. I have been in discussions with the Head Office team and also our Legal Counsel and we have been investigating previous Court cases on this topic.
Please find attached, Supreme Court Ruling (Short Report) where a Co-Owner sued the Juristic, as they had stopped the Co-Owner from using the Common Area because the Co-Owner hadn’t paid their Outstanding CAM Fees:
Highlighted Paragraph (1st): The Court stated that the only way to force the Co-Owner to pay the CAM fee, was to take the case to the Courts and for the Courts to order the Co-Owner to pay the Outstanding CAM Fees. The Condominium Act doesn’t provide a way to force the Co-Owner to pay the CAM Fee in the any other way.
Highlighted Paragraph (2nd): The Court said that the Co-Owner has the right to use the Common Area. The Juristic couldn’t stop the Co-Owner from using the Common Area because of Co-Owner did not paid the CAM fee. It means that the Juristic violated the Co-Owner from using the Common Area.
Highlighted Paragraph (3rd): Despite the Condominium Regulations stating that the Juristic can stop the Co-Owner from using the Common Area and facilities and can terminate the water supply, the Court Officer stated that the Condominium Regulations was settled for the Co-Owner from using the Common Area, facilities in the wrong way.
In this case, the Co-Owner, sued the Juristic as he informed the Courts that they didn’t pay the CAM Fee because the Juristic spend the money (CAM fee) for the useless or unclear items. The Court office said that it was not fair to the other Co-Owners who had paid the CAM Fee and the Co-Owner’s reason was not acceptable. So the Court office ordered the Co-Owner to pay the CAM Fee.
So, as discussed in previous emails, the only way to force Khun Sorasak to pay the Outstanding Invoices and Penalty Charges, is to take him to court once his AR Outstanding is more than six (6) months.
Based on the Court Case above, the Juristic has the right way to take the Co-Owner to court to try to recover the funds. However, we can’t stop the water, or the access to the Common Area Facilities such as Car Parking or Swimming Pool or Car Washing Facilities, even though the Condominium Regulations state that we can. The Condominium Act is the Law of the land and is therefore stronger than the Regulations of each Condominium. The Regulations are enforceable providing that they are not in contradiction with the Condominium Act. If they are in contradiction, then the Condominium Act will prevail.
Please note that it is the not within the jurisdiction of the Land Department or banking establishments to enforce the collection of Outstanding Payments. It is only within the jurisdiction of the Courts.
Also putting the defaulting Co-Owner’s name on the notice board or in the lift, is not technically illegal and some buildings have done it, such as the RBSC, there was a recent case in 2014 at a condo on the river where a Co-Owner successfully sue the Juristic for Defamation and the Juristic had to pay compensation to the Co-Owner in excess of the Outstanding CAM Fees. Therefore the Building Management doesn’t recommend putting the Co-Owner’s name on the Notice Board.
For the Penalty Charges, the Building Management calculated for the late payment and billed him. Please find the outstanding as attached.
We have already calculated the Penalty Charges based on the Condominium Act, which is 12 % per annum for less than six (6) months and 20 % per annum for more than six (6) months.
As Khun Adul discussed by phone with Khun Sorasak last week, he told me that the Juristic can’t stop the water and others as he was familiar with the law.
For my opinion, we have two (2) ways of resolving this:
1. Continue to negotiate with the Co-Owner as he is currently six (6) months outstanding but the Co-Owner has verbally agreed to pay an amount by the end of this month.
2. If the Co-Owner fails to make the necessary payment by the end of July, 2015, the Juristic Person Manager (JPM) has to send him a lawyer’s notice and if that doesn’t work, then ultimately the JPM will have take him to Court, as the period of outstanding is more than six (6) months. Continue to calculate the Penalty Charges until payment has been received and to enforce him to pay the penalty too. Otherwise it will be unfair to the other Co-Owners.
Please note that he knows Benja Gardens and Phirom Gardens pay every three (3) months for their CAM Fee.
Again I have to apologize to late reply. I have to find out the case and my English is not good, I have to recheck, it make for late typing.
If you have any queries, please feel free to contact me.