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BANGKOK 18 April 2019 21:17
bayport22

Condo Committee Rules/Regulations

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9 minutes ago, KittenKong said:

I would like to see that written somewhere.

 

The JPM is also selected by name and yet his task can be delegated, so why not committee members too?

 

Also when you say "the LD", which one do you mean? Each office seems to have its own way of applying rules, as was previously discussed.

I believe the law was written with the idea that most JPM would be juristic entities rather than individuals and as such a juristic entity needs to assign a person as a representative of that entity as the authorized person.  A Juristic entity is selected in an General Meeting but of course people within that Juristic change and although the entity is not changing the assigned person by them can and does change if they leave the company. I know people disagree on here, but my view is that the JPM has very little to no day to day role in managing a property and is generally a legal signatory which carries out the resolutions of the elected Committee, whether that be entering contracts with 3rd parties or other legally binding contracts.

 

They have some special powers in the case of emergency but they tend to rightly defer and act on resolutions of Committee's. The main reason for this being that the Committee's are chosen by the Co-owners, are supposedly on site everyday and live and the property and if Co-owners are not happy with them they can be removed and changed. The fact there is often confrontation between Co-owners, Committee's etc does not change this fact and the law can obviously not foresee all of these eventualities or allow for them. I take the view that having a Committee making the resolutions on issues is far better and less likely to be abused than have a single person with over reaching power over large numbers of Co-owners making unilateral decision other than in emergencies. The only time a Juristic Manager role can be assigned is to a Committee Member when a JPM cannot do their job or is removed from their position and a new JPM is yet to be selected. However even in these cases it often causes issues with certain aspects as the temporary person is not listed or named as the JPM and some bodies are reticent to accept their signature.

 

The issue of Committee Members giving proxies to other Co-owners to attend committee meetings and vote for them came up probably 8-9 years ago in Bangkok. I no longer work in that company or in that line of business but in those days there were close to a 1,000 staff involved in property management and when the issue came up one of the Thai staff wrote to the LD, in Bangkok on their website asking for clarification. The clarification came back in Thai stating that because Co-owners were voted as individuals they could not proxy to other Co-owners to attend Committee meetings for them. Because i cannot read Thai and no longer work for the company i cannot get or find the ruling and I am unsure what other land departments would rule, but this was the case back then and i can very easily see the logic behind it. If i know and vote for X as a Committee Member, i would not agree with X giving his vote to someone else who i dont know or know their views on specific issues.

 

Perhaps like many things here, people do proxy to other people and in most cases an issue of this never actually arises. It only becomes a problem when someone wants to make a problem out of it and has the time, capacity to actually make a complaint and follow it through until the LD decides they have to give a directive, which in most cases people never get to that stage.

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If you have actually read the Condo Act and my guess is your condo bylaws just mimics it, they are vague in almost any issue. My lawyer who services many condos and has been a JP Mgr says a committee member cannot POA his duties to another. 

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4 hours ago, inThailand said:

If you have actually read the Condo Act and my guess is your condo bylaws just mimics it, they are vague in almost any issue.

Actually the issues it covers are fairly well defined. It is quite clear about committee members not being allowed to hold proxies at the AGM, for example.

 

But there are many things that it simply doesnt address at all and the case in question is one of them. The closest it gets is to say that a JPM can delegate to someone else. So if a JPM can do it, why not a committee member? The JPM is also specifically elected by co-owners, just like a committee member.

 

4 hours ago, inThailand said:

My lawyer who services many condos and has been a JP Mgr says a committee member cannot POA his duties to another. 

We are not considering a POA, we are considering a proxy. And I suspect that it would be quite easy to find another lawyer to say the opposite to yours.
What is really needed is a written statement from a court, or a specific law.

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6 hours ago, smutcakes said:

I believe the law was written with the idea that most JPM would be juristic entities rather than individuals and as such a juristic entity needs to assign a person as a representative of that entity as the authorized person.  A Juristic entity is selected in an General Meeting but of course people within that Juristic change and although the entity is not changing the assigned person by them can and does change if they leave the company. I know people disagree on here, but my view is that the JPM has very little to no day to day role in managing a property and is generally a legal signatory which carries out the resolutions of the elected Committee, whether that be entering contracts with 3rd parties or other legally binding contracts.

In my building, and in all others I know of, the JPM is elected by name. He may be an employee of a management company, or not, but that doesnt change the way he is appointed.

 

Also the JPM does have ultimate control of what happens in the building. He can overrule the committee if he considers it to be in the best interests of the building, or in some way required by law.

He may not get directly involved with issues like "who empties the dustbins" - that is the building manager's job - but he is entirely responsible for ensuring that the building obeys all relevant laws and that the finances are in order. If the building does something illegal then it is the JPM who gets penalised.

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8 hours ago, KittenKong said:

But there are many things that it simply doesnt address at all and the case in question is one of them. The closest it gets is to say that a JPM can delegate to someone else. So if a JPM can do it, why not a committee member? The JPM is also specifically elected by co-owners, just like a committee member.

The JPM can only delegate if there is an AGM resolution passed with at least 25% of the total votes specifying which business they are allowed to pass onto another person (clause 49).

 

So this does seem consistent:

 

1. JPM needs to be elected by at least 25% of the total votes.

2. If the JPM wish to delegate some of their duties, they need approval from at least 25% of the total votes.

 

One could argue that the lack of a similar clause for committee members means that they are not allowed to delegate at all (i.e. give proxy).

 

Edited by lkn

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8 hours ago, KittenKong said:

Also the JPM does have ultimate control of what happens in the building. He can overrule the committee if he considers it to be in the best interests of the building, or in some way required by law.

In practice, whoever sits on the finances and/or who the staff listens to, has the ultimate control of the building.

 

Legally, the JPM does have slightly more power than the committee in that they can (and should) act to keep the building safe, so for example if the JPM believes that changes need to be made to the parking lot to keep the co-owners safe, they should be able to make such changes without an AGM resolution (the committee cannot do this, as changing common area requires co-owner consent).

 

But as @smutcakes writes, the JPM is really just the person who signs on behalf of the building when dealing with third parties, and is ultimately responsible (i.e. the person to sue in case of failure) for publication of monthly profit and loss statement, financial report for the AGM, suing non-paying co-owners, etc.

 

And while we are at it, ideally the committee should only be about overseeing the management of the building, ensuring the decisions made on the last AGM gets executed, and that the budget (also passed on last AGM) is being followed.

 

So there shouldn’t actually be a situation where the JPM needs to overrule the committee (whatever that means), and should the committee start to do things that goes beyond their mandate, the solution is to call for an EGM, which can be done either by the JPM or 20% of the co-owners.

 

Btw: In my building the JPM does *not* control our bank account. That role is given to an elected treasurer, and without controlling our money, there really isn’t much the JPM can do.

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9 hours ago, lkn said:

So there shouldn’t actually be a situation where the JPM needs to overrule the committee (whatever that means),

It means that the JPM ignores the wishes of the committee, even when these are entirely legal and justifiable. And this really does happen.

 

9 hours ago, lkn said:

Btw: In my building the JPM does *not* control our bank account. That role is given to an elected treasurer, and without controlling our money, there really isn’t much the JPM can do.

True enough, if you are lucky enough to be in a building that works like that. Many do not.

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5 hours ago, KittenKong said:

It means that the JPM ignores the wishes of the committee, even when these are entirely legal and justifiable. And this really does happen.

But then the JPM has gone rogue and we are no longer talking about what they can legally do according to the Condo Act.

 

4 hours ago, KittenKong said:

True enough, if you are lucky enough to be in a building that works like that. Many do not.

I made it work like that, luck had nothing to do with it 🙂

 

Of course you could be unlucky and be in a building where none of the co-owners have any idea about basic accounting, in which case, you better learn it 🙂

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1 hour ago, lkn said:

But then the JPM has gone rogue and we are no longer talking about what they can legally do according to the Condo Act.

The Condo Act gives the JPM this power at his discretion. It is very clear.

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3 hours ago, KittenKong said:

The Condo Act gives the JPM this power at his discretion. It is very clear.

Which clause are you referring to?

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4 hours ago, lkn said:

Which clause are you referring to?

Section 36 The manager shall have the following powers and duties:

......
(2)     In the case of necessity and urgency, the Manager shall have the power by his own initiative to carry out the business for the safety of the building as a prudent person should do to his own property.
(3)     Providing security operations or taking actions in maintaining peace and order within the condominium.

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7 hours ago, KittenKong said:

Section 36 The manager shall have the following powers and duties:

 ......
(2)     In the case of necessity and urgency, the Manager shall have the power by his own initiative to carry out the business for the safety of the building as a prudent person should do to his own property.
(3)     Providing security operations or taking actions in maintaining peace and order within the condominium.

You wrote “It means that the JPM ignores the wishes of the committee, even when these are entirely legal and justifiable” and then (when I wrote he had gone rogue) you followed up with: “The Condo Act gives the JPM this power at his discretion. It is very clear”.

 

I strongly disagree that section 36 in any way shape or form allows for the JPM to ignore valid requests from the committee.

 

Item (2) is about not making the JPM liable for taking active steps to ensure the safety of the building. For example this could involve spending sinking fund money, making changes to common area, or similar that would, had it not been done to ensure the safety of the building, make the person who did it liable for being sued for misconduct.

 

Item (3) is less straightforward, the part about providing security operations is irrelevant for our discussions, the part about taking actions in maintaining peace and order; note that this is both a power and a duty, and lack of peace would presumably be caused by loud co-owners, hence my interpretation here is that the JPM is the one who has to deal with co-owners that “break the peace”. This is a tough problem, because there are no obvious way to sanction non-compliant co-owners to make them behave, which is why the authors of the Act probably left this part a bit open ended.

 

Despite the vagueness of item (3) though, I do not believe it can be used to justify a JPM that goes against the wishes of the committee.

 

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2 hours ago, lkn said:

Item (2) is about not making the JPM liable for taking active steps to ensure the safety of the building. For example this could involve spending sinking fund money, making changes to common area, or similar that would, had it not been done to ensure the safety of the building, make the person who did it liable for being sued for misconduct.

I disagree. That section gives him the power to do what he wants if, in his opinion, it is the right thing to do.
There are other sections in the Condo Act that refer to the liability of the JPM but they are not relevant to this issue.

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3 hours ago, KittenKong said:

I disagree. That section gives him the power to do what he wants if, in his opinion, it is the right thing to do.

The opinion of the JPM is irrelevant when it comes to law. Also, not “the right thing to do” but “necessary for the safety of the building”.

 

So if sued for misconduct, the JPM will have to prove that their actions were necessary for the safety of the building.

 

Your example of ignoring justified wishes from the committee does not sound defensible to me.

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1 hour ago, lkn said:

The opinion of the JPM is irrelevant when it comes to law.

I dont think so.

 

1 hour ago, lkn said:

Your example of ignoring justified wishes from the committee does not sound defensible to me.

I didnt say that it was defensible, just that some JPMs have been known to do it. I have seen it happen and the JPM acted knowing full well that the Condo Act gives him that authority. That was confirmed to me by the Land Office.

 

Think about it a little: can the committee sack the JPM? No, it cant. Can it give him orders? No, it cant. At best it can request.

If some co-owners want to hold an EGM who do they have to approach? The JPM.

Who organises the AGM? The JPM.

Who files all the voting results with the Land Office? The JPM.

Who monitors the validity of voting and proxies? The JPM.

The Condo Act does not even prescribe a maximum term for the JPM. In theory, once selected, he could carry on forever unless 25% of the entire building votes to remove him. Changing a committee is much easier, and it happens automatically every two years anyway.

Some individual buildings may have internal rules that limit the term of office of the JPM to the same 2 years as the committee, and co-owners in any building that does have that rule should be very thankful. I personally think that it was a huge mistake not to include that in the Condo Act.

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