Contractors and the Renovation of Property

By Robert R. Virasin and Yutthachai Sangsirisap

As land prices in prime locations in Thailand go up, condominiums are getting smaller and more expensive. Many people have chosen the option to purchase larger less expensive properties with the goal of renovating the property. There is a risk to making this choice. There is a lot of misleading and inaccurate information available when attempting to choose a contractor.

Locating a contractor to do the job within your price requirements can be difficult. Many contractors are unlicensed, do not have experience, and provide low estimates to obtain the job without the ability to complete the job. When researching contractors, it is important to review their references, talk to previous clients, and to physically view their work. It is easy for a contractor to point at a picture and say that it is their work.

Experienced contractors should provide drawings and architectural blueprints covering every square meter of the property with detailed renovation costs. If they cannot provide you documentation outlining what they will be doing as part of the renovation, they may be guessing at what needs to be done.

After selecting the contractor, it is important to sign an agreement that has a detailed timeline with milestones toward the completion of the project. The overall bill for the renovation should be split and paid after the contractor has completed each milestone in the project. While a deposit is generally required for materials, full payment should not be made prior to the contractor completing the project.

Diligence can prevent the hiring of an incompetent contractor but it does not guarantee good or complete work. What type of legal action can you take on the contractor in the following circumstances:

You pay the contractor and during the middle of the work, the contractor leaves and does not return. The renovation is partially complete.”

Under section 599 of the Thai Civil and Commercial Code, when there is a delay in the delivery or the delivery of defective work by the contractor, the customer is entitled to withhold remuneration. This means that if there is a delay in the construction or if there is defective work, the customer can withhold payment until the work is completed or the defect has been fixed. In addition, if the work has not been completed, section 578 allows the customer to withhold all pay, terminate the contract, and sue for breach of the agreement to claim for damages.

The contractor completes the work but you later find out that he skipped steps or used inferior materials.”

Under the Thai Civil and Commercial Code Section 589, the materials for work supplied by a contractor must be of good quality. If the contractor uses materials that are of an inferior quality than the materials agreed upon, the contractor is liable to repair for the defects that occurs. The contractor is liable for defects that appear within one year of completion of the work unless the agreement provides otherwise. However, the one-year limitation does not apply where the contractor intentionally attempted to conceal the defect.

The contractor accepts the job then begins work on the renovation. In the middle of the job, he informs you that the costs of the renovation are higher than expected. He tells you that he cannot complete the job at the agreed upon price and demands more money.”

In the above circumstance, it is necessary to look at the agreement with the contactor. If there is a fix cost clause which prevents changes to the agreement, it can prevent the contractor request additional remuneration without consent of the customer. However, some agreements allow the contractor to request additional remuneration if there are material changes in the cost of the project.

So before signing any agreement, it is important to understand the clauses that relate to additional costs or expenses. If there are no clauses that concerns additional expenses, then the customer can force the contractor to incur the additional expenses by themselves and complete the work.

The above information is general in nature and should not be considered legal advice for any specific cases. If you have any questions, we advise that you seek legal counsel from a reputable lawyer.

Collecting Debt in Thailand

 

With the Thai economy stagnating, household debt is reaching record levels on an annual basis. According to the University of the Thai Chamber of Commerce, the average household debt reached nearly 300,000 baht in 2016. This amount is higher than the annual income of the average Thai family. Seventy-four percent of families in debt have defaulted on a loan.

The high default rate is a concern for people or businesses that have loaned money. If someone has stopped paying on a debt, what should the creditor do? The first thing for a creditor is to ensure that their loan is enforceable.

Title IX, Chapter II of the Civil and Commercial Code outlines the requirements for consumer loans. A loan exceeding 2000 baht must be written and signed by the borrower. Repayment or cancellation of a loan exceeding 2000 baht can only be proven with a document signed by the borrower.

A loan for a movable property (non-fixed property) is covered by Title XIII, Chapter I of the Civil and Commercial Code. These loans require a written agreement which outlines the obligation for performance of the loan with interest, compensation in case of non-performance, and requirements to preserve the pledged property. If the debtor defaults on the loan, the creditor must first notify the debtor in writing to perform their obligation within a reasonable period.

The Thai Civil and Commercial code does not require a written agreement for contractors. Under the law if the contractor has completed any part of the work, the employer is liable for the completed part. While a contract is not required, it is recommended that the parties have a paper agreement outlining the rights and obligations of each party. Without a contract term stating otherwise, an employer can cancel the job as long as the employer compensates the contractor for loss.

The Thai Civil and Commercial Code covers multiple types of relationships. It is important to review the type of relationship in the creditor and debtor relationship to ensure that the documentary requirements are met. In addition, the creditor should review statute of limitations on attempting to collect on the debt. Different types of debts have different time limitations for collecting on a debt. Most debts have a statute of limitation of 10 years but some debt claims are limited to five or two years. After the time limit has passed, the debtor can legally refuse to pay the debt.

If the debtor has defaulted on a loan, the creditor should try to mitigate the losses before filing a lawsuit. A lawsuit can be expensive and time consuming without an assured outcome. It might be in the best interest to attempt to negotiate a partial payment or an extended payment plan to avoid litigation. A good negotiated settlement might be able to save the relationship.

If negotiation has not produce an agreement, the creditor can choose to move forward with potential litigation. Some claims require that the creditor serve the debtor with a demand letter outlining the claim and requesting payment with a reasonable time period to comply with the demand.

If the demand letter is ignored, the creditor can move forward with filing a lawsuit. The attorney needs to review the information and history of the dispute to ensure that a lawsuit is plausible and reasonable. If the debtor can pay the debt or owns property that can be held in lieu of financial payment, then it may be reasonable to pursue litigation. However, if the debtor does not have a job or property, a court ordered judgment will be difficult or impossible to collect.

The lawsuit begins with the filing of a claim with a court. The place of filing will depend on the value of the debt or the type of debt. After filing the claim, the court will generally require the parties to go to mediation. A mediator who will attempt to push the parties to come to an agreement.

If mediation fails, the parties will have to make their arguments in court. The court will consider the evidence and make a judgment.  If the debtor does not comply with the court judgment, the creditor can request a writ of execution to force the seizure of the debtor’s property and the auctioning of the property to collect repayment on the debt.

The process of filing a lawsuit to collect on a debt is time consuming and expensive. It is better for a creditor to attempt to negotiate with the debtor to avoid litigation. The creditor should consider the value of litigation in respect to the possible gain. A good attorney will discuss the matter with the creditor so that they will have reasonable expectations and can make an informed decision. Spending money and time on a lawsuit then losing the case is worse than not filing the case at all.

Songkran: Fun, Drinking, and the Police

 

Songkran is a Thai religious festival where people sprinkled water on their family members and pay respects to their elders marking the beginning of the Buddhist New Year. Now it is more known as a weeklong holiday and a three-day water fight and party. Large numbers of tourist come to Thailand to join in the festivities. There are music festivals, hotel pool parties, and walking street celebrations. It is a time where people let loose and civility is secondary. In response, Thai police are represented in large numbers to ensure that there are no disturbances.

Excessive drinking contributes to the party atmosphere and the police will be looking for people who have lost control. Public intoxication is defined as anyone who puts themselves into a state of drunkenness by the consumption of alcoholic beverages or other intoxicating substances and exhibits themselves in a troublesome or senseless behavior in a public or in a public space. Those found of public intoxication can be arrested and fined.

Many individuals lose control during Songkran. They begin defacing private and public property by destroying, disfiguring, or marking buildings. Others just start fighting or joining a public brawl. These individuals can also face imprisonment and a fine.

During this period, do not consume illegal narcotics in Thailand. The police are everywhere. They are looking for people under the influence of narcotics. The potential penalty for public intoxication, defacing public property, or fighting does not compare to the seriousness of being arrested and charged with illegal narcotics. A charge for illegal narcotics opens up people for extortion and long sentences in Thailand’s overcrowded prisons.

What should someone do if they are approached by a Thai police officer?

It is best to cooperate with the Thai police. Normally, the police just wants to ask some questions or observe the behavior of an individual. Under section 367 of the Thai Criminal Code, people are required to provide their name and address to a public officer if it is made in the interest of legal enforcement. The failure of provide such information or to intentionally give false information makes the person liable for a fine. In addition, the failure to cooperate might raise increase suspicions from the police and the police may further interrogate the individual.

In addition, any person who is given an order given by a legally authorized public officer and fails to abide by the order without reasonable grounds or excuse faces imprisonment and a fine. However, even if it is determined you have been given a reasonable request by a legitimate police officer, it is important to be wary.

If the police would like to search your clothes or bags, ensure that the search is done in public in the presence of other people. If they want to search your pockets, pull the items in your pockets by yourself to ensure that something is not unknowingly put in the pockets.

If the police determined that a law was broken and the individual needs to be taken into custody, they will arrest the suspect. The police have a duty to immediately inform the suspect of the charge and take them directly to the closest police station to be processed. They are not allowed to take them into another room or to a private house. They must take them directly to the police station.

After the arrest, the suspect can contact a related person and an attorney. Under Thai law, a suspect has the right to remain silent. It is a good idea for a foreign national to remain silent until they are represented by a local attorney. They can place themselves in a more difficult position if they talk without a full understanding of the language or Thai law.

The police can only hold a person for 48 hours unless they bring the suspect in front of a judge to request for an extension of the hold. After the arrest, the suspect may be eligible for bail. For small cases like public intoxication, the bail can be paid at the police station immediately.

Another quirk in the law is that Thailand has a good Samaritan law. When someone sees any person in danger, they are required to render assistance if the assistance does not put the individual in danger. If the public officer request assistance in the performance of a public duty, the person is required to assist the public officer. Failure to provide assistance in either of the above circumstances face imprisonment and a fine.

During this period of celebration, partiers should keep a copy of their identification, phone number of a local friend, contact for their local embassy, and the phone number of a local English speaking attorney. Have fun in groups and be vigilant. Stay away from narcotics and people who may attempt to take advantage of you.

Thai Prostitution – US Visa Waiver

The U.S. Embassy Officer has full discretion whether a Thai person will get a visa. The officer will look for reasons for a visa not to be granted. Sometimes the officer will accuse Thai woman of prostitution even if she did not commit prostitution.

If the Thai woman lives in areas where there are red light areas like Pattaya, Phuket, Hat Yai, or Bangkok, they will look for a reason to charge prostitution. If the woman has worked as a bar girl or worked in the massage shop, they will look for prostitution. If the Thai woman has worked overseas in places that are known to import Thai woman for prostitution like Bahrain, Indonesia, or South Korea, the officer will look for prostitution. If you never committed prostitution, it is important to deny that the charge of prostitution.

Whether you have previously been a prostitute or have never been committed prostitution, if the officer denies your visa because of prostitution, you will need an immigration waiver to get the visa.

To get an immigration waiver for prostitution, we need to show that you are no longer committing prostitution, you are a good person, and that you will not commit prostitution in the United States.

I am a licensed U.S. lawyer who has handled many immigration waiver cases. I can help you prepare the immigration waiver so that you can obtain a visa so that you can go to America.

If you need help, contact me at info@virasin.com.

Collecting Debt in Thailand

With the Thai economy stagnating, household debt is reaching record levels on an annual basis. According to the University of the Thai Chamber of Commerce, the average household debt reached nearly 300,000 baht in 2016. This amount is higher than the annual income of the average Thai family. Seventy-four percent of families in debt have defaulted on a loan.

The high default rate is a concern for people or businesses that have loaned money. If someone has stopped paying on a debt, what should the creditor do? The first thing for a creditor is to ensure that their loan is enforceable.

Title IX, Chapter II of the Civil and Commercial Code outlines the requirements for consumer loans. A loan exceeding 2000 baht must be written and signed by the borrower. Repayment or cancellation of a loan exceeding 2000 baht can only be proven with a document signed by the borrower.

A loan for a movable property (non-fixed property) is covered by Title XIII, Chapter I of the Civil and Commercial Code. These loans require a written agreement which outlines the obligation for performance of the loan with interest, compensation in case of non-performance, and requirements to preserve the pledged property. If the debtor defaults on the loan, the creditor must first notify the debtor in writing to perform their obligation within a reasonable period.

The Thai Civil and Commercial code does not require a written agreement for contractors. Under the law if the contractor has completed any part of the work, the employer is liable for the completed part. While a contract is not required, it is recommended that the parties have a paper agreement outlining the rights and obligations of each party. Without a contract term stating otherwise, an employer can cancel the job as long as the employer compensates the contractor for loss.

The Thai Civil and Commercial Code covers multiple types of relationships. It is important to review the type of relationship in the creditor and debtor relationship to ensure that the documentary requirements are met. In addition, the creditor should review statute of limitations on attempting to collect on the debt. Different types of debts have different time limitations for collecting on a debt. Most debts have a statute of limitation of 10 years but some debt claims are limited to five or two years. After the time limit has passed, the debtor can legally refuse to pay the debt.

If the debtor has defaulted on a loan, the creditor should try to mitigate the losses before filing a lawsuit. A lawsuit can be expensive and time consuming without an assured outcome. It might be in the best interest to attempt to negotiate a partial payment or an extended payment plan to avoid litigation. A good negotiated settlement might be able to save the relationship.

If negotiation has not produce an agreement, the creditor can choose to move forward with potential litigation. Some claims require that the creditor serve the debtor with a demand letter outlining the claim and requesting payment with a reasonable time period to comply with the demand.

If the demand letter is ignored, the creditor can move forward with filing a lawsuit. The attorney needs to review the information and history of the dispute to ensure that a lawsuit is plausible and reasonable. If the debtor has the ability to pay or owns property that can be held in lieu of financial payment, then it may be reasonable to pursue litigation. However, if the debtor does not have a job or property, a court ordered judgment will be difficult or impossible to collect.

The lawsuit begins with the filing of a claim with a court. The place of filing will depend on the value of the debt or the type of debt. After filing the claim, the court will generally require the parties to go to mediation. A mediator who will attempt to push the parties to come to an agreement.

If mediation fails, the parties will have to make their arguments in court. The court will consider the evidence and make a judgment.  If the debtor does not comply with the court judgment, the creditor can request a writ of execution to force the seizure of the debtor’s property and the auctioning of the property to collect repayment on the debt.

The process of filing a lawsuit to collect on a debt is time consuming and expensive. It is better for a creditor to attempt to negotiate with the debtor to avoid litigation. The creditor should consider the value of litigation in respect to the possible gain. A good attorney will discuss the matter with the creditor so that they will have reasonable expectations and can make an informed decision. Spending money and time on a lawsuit then losing the case is worse than not filing the case at all.

Unwanted Children: The Consequences of Holiday Debauchery

There are numerous “dek khrueng” or “half-children” born to women who work in Thailand’s red-light districts. Many men from foreign countries come to Thailand for a short holiday to spend their time with Thai women. Some of these men leave without knowing that they have a child. Others know about their child and still decide return to their home country. These women are left pregnant with a difficult choice in a country where intentionally terminating a pregnancy is illegal except for certain circumstances.

continued…

 

Becoming a Teacher in Thailand by Eric Guzman

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If there is one thing that impels young professionals to come and visit Thailand, it is the conception of many that the grass looks greener on this side of the world. Indeed, Thailand offers vast employment opportunities to foreigners, especially in the field of education. I recall being reluctant and interested at the same time when I was looking into the possibility of becoming a teacher about a year ago.

When I first came to Thailand, I worked as a manager at an international law firm in Bangkok for two and a half years. My decision to shift to a different career was swayed by many different elements and, as corny as it may sound, my passion for teaching has been a major factor. I developed the interest gradually when I was asked to teach basic English to a small youth group in our church for two months. That’s when I realized that I love teaching. Then I thought to myself that perhaps, I can be a real professional teacher in Thailand.

Subsequently, I started inquiring and researching on how I could secure a teaching job if I were to resign from my legal manager position. I discovered that it was not as easy as I thought and would take time. The first thing I did was return to my home country to retrieve my diploma and official transcripts from the university where I obtained my Bachelor’s Degree. However more than academic credentials are required to meet the qualifications to become a professional teacher.

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Many schools in Thailand require foreigners who are non-teacher by profession to have some sort of relevant training and teaching certificates before their applications can get considered. After I left my previous company, I enrolled in a training center in Bangkok and took a 4-week Teaching English as a Foreign Language (TEFL) program. An integral part of this course is to complete an 8-hour practical teaching requirement at different educational levels. This experience was quite helpful for me as it gave me an idea of the typical classroom setting in Thailand. The critical understanding of the job enabled me to develop practical teaching techniques which I then use and apply later in in my career.

After having obtained my TEFL certificate, I felt more than ready to begin searching for a teaching job. I thought that it would be difficult for me to obtain a job because the school year had already started and I am not considered a “Native English Speaker” even though I have spoken English my entire life. But I was fortunate to find the right school about a week after I completed my TEFL course.

1616-768x509I was offered positions at three different schools in Thailand but I chose a school located in the province of Rayong. It is not the ideal location if you like living in a city, but the school is near the beach and the people are very nice. I was lucky that I entered Thailand on a Non- B visa because of my previous employment. Those who entered Thailand on another type of visa would have to leave the country and apply for a Non-B visa at an outside Thai consulate then reenter Thailand.

About a week later. I started my employment with the school, I was informed by my agency that I would need to take and pass the TOEIC exam as a requirement for non-native English speakers. I took a day off from work to travel from Rayong to the TOEIC test center which is located in Bangkok. I was happy that I passed the exam my first time.

I was instructed by my agency to prepare documents from my university so they can start my teaching license application. The agency where I obtained my TEFL proved to be quite helpful and accommodating during this process. Within a short period of time, I obtained my teaching certificate.

To legally become a teacher in Thailand demands a significant and sometimes is an exigent process. The task of acquiring the proper visa and work permit can be time consuming and stressful. Although there are some who work in Thai schools without the proper visa and permits, it is still far more sensible to be prepared and compliant. After all, no one would want to end up in a bad situation in case they get caught and remanded by the Thai authorities.

Letters to the Attorney: Visitor Visa

Dear Khun Virasin,

My wife and I are elderly US Citizens. We are long time visitors to Thailand. I am currently undergoing treatment for cancer in America.

My treatment will take several months, and we have been trying to get a visitor visa for our friend of many years, who is a Thai citizen, to come here to help and be with us.

Our friend is a 52-year-old woman who is licensed in massage therapy. She is a woman of extraordinary character and integrity.

She has a large, close family. She owns a home, some farm land, and a condo in Bangkok. She is debt free and has significant savings.

She filed an application for a B2 tourist visa. The application included full documentation about her, and letters of support from my doctors, letters of recommendation regarding our character and integrity; letters to document our ability to pay for the flight and living expenses while she was here, and even an offer to post a bond insuring her timely return to Thailand.

When she arrived for her interview in Bangkok, the interviewer asked three questions.

  1. What city will you go to?
  2. Why will you go?
  3. What work do you do?

At that point, without looking at the documentation provided, he terminated the interview and denied the application. We found such behavior to be insulting and frankly quite bigoted, but we also understand there is no process for appeal.

My question is this. We have all of the documents prepared for the application and we know that a new application can be lodged. Is that a waste of time? And, do you see any other conceivable category for a Visa that we might pursue?

Mr. XXXXXX

***********************

Dear Sir,

The US Embassy Officers generally only reviews the completed DS-160 for information, the appearance and demeanor of the applicant, and answers to a few questions before making a determination. If the person has ever been denied a visa before, this will affect the decision of the case. The primary purpose of the interview is whether the applicant will return to Thailand.  The burden of proof is on the applicant.

With a long line of Visitor’s visa applications every morning, the office only takes a few minutes to make a decision. That is the reason why they did not review the documents which your friend brought with them.

I understand that it is not fair but that is the system that the Embassy is currently using. The officer has full discretion to approve or deny a visa application.

Regards,

Robert Virasin

 

Justice for Some

In their book, Tort, Custom, and Karma, Professor David Engel and his wife researched the issue of legal access for the poor in Thailand in Chiangmai, Thailand. The findings are surprising. From the mid 1960’s to 2000, the rate of litigation has declined significantly relative to the general increase in population and the increase number of Thai attorneys.

Professor Engel found that the general public has an antipathy to the legal system. People on a local level feel alienated from the legal system. They believe that there is no justice for them in the courts. In the opinion of those in the middle and lower economic classes, government officials are corrupt and only the wealthy and powerful receive favorable rulings from the courts.

In addition, there are economic hurdles to accessing the court system. Filing a lawsuit is expensive and time consuming without a guarantee of success. The average Thai worker lacks the knowledge and experience to file a lawsuit. Attorneys are generally required to navigate through the court system. Those who lack the funds to hire an attorney usually lack the expertise to file and argue a court case .

In Thai courts, most civil actions do not allow punitive damages (damages exceeding compensation and meant to punish the defendant). This deters people from filing lawsuits and attorneys from accepting cases from low income clients. Even in egregious tort cases that results in a severe injury or loss of life, an imbalance of wealth and power among the parties usually results in a one-sided settlement. This may be the only route for lower income individuals to get any financial recourse.

The lack of a justice system has been exasperated by the reduction of community and the use of village elders to mediate settlements between parties. In an increasing networked world, people are less involved in their local communities which has led to an increased breakdown of community foundations. When there are conflicts, the average Thai person does not have a person or place to assist in settling their disputes.

There are potential solutions to the lack of access to the court system. One solution is to allow punitive damages for torts caused by outrageous or irresponsible conduct by a defendant. If someone is drunk driving and destroys the victim’s property or causes personal injury, the compensation from punitive damages could be an incentive for the victim to seek restitution through the court system.

Another possible solution would be to create a local arbitration system to replace the loss of respected village elders. An arbitrator can resolve conflicts without the legal formalities of a traditional court hearing thereby making it more accessible for regular people. The government arbitrator can issue a court enforceable decision or attempt to prod the parties to negotiate a fair settlement.

A large segment of the population feel that they do not have access to the justice system. Disillusionment in the law has become the norm. This can lead to the breakdown of civil society. Growing disenchantment with the legal system contributes to the feeling of the lack of justice. Something should be done to reform Thailand legal system to allow tort victims greater access to the court system.

Registering Street Beggars

The Thai government recently passed a law revising Thailand’s laws on begging in public areas. The new law replaces the Beggar Control Act of 1941 which punished gangs and people for trafficking people for begging. Under the new law, those who beg on the streets are required to obtain licenses in order to pander for money. This includes not only women with hungry children but also includes street singers and musicians blocking walking paths.

Those who are found to be in violation of the order can be fined as much as 10,000 baht and/or jailed for up to a month. Traffickers and those who benefit from the begging can be fined for up to 30,000 baht and/or jailed for up to three years. If government officials are a part of the conspiracy, they can be fined up to 50,000 baht and/or jailed for up to five years in prison.

Continued…