Due Diligence

“Due Diligence” is a process whereby an investigation of an investment deal is performed to determine its worthiness prior to finalizing a transaction. Here are the basics for the process. When selling and buying real estate in Bangkok this involves several things which include: Obtaining a title insurance policy regarding the ownership of the property and the encumbrances to which it is subject

• Requiring the owner to secure an attornment from the tenants agreeing to maintain the status quo with regard to the lease agreement prior to the transfer of ownership

• Researching the zoning laws and the existence of any special assessment of property taxes applicable to the property, building code compliance of the premises, the existence of any, and the sales price history of the property if applicable

Due diligence for Bangkok real estate is a very important step that real estate buyers must undertake, most especially foreigners who are especially susceptible to unscrupulous dealers and developers.  The practice of due diligence provides invaluable information that enables the prospective buyer to verify the claims being made by the seller regarding the property being sold.

It all starts with the exercise of due diligence on the background and title of the property being considered as well on the credibility of the seller himself.  Due diligence also includes conducting a physical inspection of the place to give the buyer a clear picture of the actual state the property giving the buyer information such as whether or not the property would require additional expenses for repairs, whether the surrounding structures or establishments would affect the buyer’s own purpose for the property, whether the property is accessible or not, and others.  This must be done prior to negotiation.

A buyer can then use the information yielded through the performance of due diligence as a bargaining tool in order to get a better price or gain concessions from the seller.  More importantly, it will prevent the prospective buyer from spending a substantial amount of money on something that would eventually only put him in serious financial and legal trouble. A wise investor cannot forego the exercise of due diligence for Bangkok real estate, a task which he must only entrust to a reliable and competent lawyer.  Siam Legal International is a reputable law firm that has a team of real estate lawyers who specialize in providing foreign investors with all the necessary legal services to ensure a clean and trouble-free property transaction.

Talk to us today!

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Retirement

Applying for a Thailand retirement visa entails a lot of preparation. This would even require legal assistance, not only to expedite the whole process, but also to evaluate one’s situation and recommend the most appropriate solutions. It can be remembered that retiring in Thailand can be performed in two ways. One is through visa conversion and the other is lodging a formal request at Thai embassies or consulates. But in the end, both approaches can be summed up into several steps.

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Guide to obtaining a retirement visa

Step 1: Choose between visa conversions or directly applying for the O-A visa – Depending on one’s needs and preferences, one can opt to apply for the Non-immigrant O visa first and convert it to the retirement visa. Or one may immediately lodge an application for the O-A visa type. Going for the visa conversion enables the applicant to look at the possible adjustments that one has to perform when staying in the country. On the other hand, a direct application saves an individual from all the possible problems that come along with visa conversion.

Step 2: Seek legal help – Many retirees do not realize the importance of hiring immigration lawyers to assist them. But with the complexities of immigration policies, not to mention the fact that it could suddenly change, a retiree cannot simply rely on their instincts. In addition, these legal professionals may even bring insights to unknown potential benefits that they can enjoy from this particular visa.

Step 3: Meet the financial requirement – Similar to other retirement visa, take for example, the Special Resident Retiree’s Visa (SRRV) from the Philippines, the Thailand retirement visa also has a financial requirement. If the applicant is unable to satisfy this condition, there is a slim chance of getting an approval. The rationale behind the financial requirement can be attributed to the fact that retirees cannot work. Thus, without sufficient financial resources, they are most likely to resort to public funds. Evidently, this is not allowed in Thailand.

Step 4:  Prepare the documentary requirements – Incomplete applications are strong denial grounds. It is much better to allot some time in gathering all these documents to avoid the rush. Take one step at a time instead of wasting too much time for visa re-applications.

Step 5: Lodge the application at the embassy or consulate – Once everything is set, submit the application at the embassy. Approved applicants are immediately notified. If approved, one can already retire in Thailand.

Don’t forget today that the cost of living in Thailand is not the same as in your home country. Speak to an immigration lawyer about your Thailand visa for your retirement in Thailand today.

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Property Leases in Thailand

If you lease a home that has been flooded, you may be wondering whether you, the lesee, or your landlord, the lessor, is responsible for cleaning, repairing or replacing damaged property in and around the home. In addition you may wonder if you have any right to be reimbursed for living expenses when you were not able to live in your home.

Unfortunately, every situation is different and there is no single answer for everyone. However, some tips may help you understand your situation.

First, check to see if you or your landlord has insurance on the property. If you have insurance, check the policy to see what is covered in the case of flood. Even if the policy does not refer to flooding, it may refer to “natural disasters,” “acts of God,” or “force majeure.” All of these terms can include natural flooding. While rare, your insurance may cover your living expenses while your are unable to live in your insured home.

Then you will need to determine whether the insurance policy covers your personal movable property, your landlord’s movable property (such as appliances and furnishings), or your landlord’s immovable property (such as the building and landscaping). Some insurance policies will not cover flooding, but others do. In addition, your landlord’s policy will probably not cover your property.

If you don’t have insurance or your insurance does not cover the damaged property, then you will need to review your lease. Once again, check to see if anything in the lease refers to flooding, natural disasters, acts of God, or force majeure. You should also review any portion of the lease that refers to maintenance and repair of the property. The lease will not cover your personal property, but may cover some or all of the landlord’s movable and immovable property. It is highly unlikely that the lease will cover living expenses while you cannot live in the home, but it is always possible.

In many cases the lease may not mention whether you or your landlord are responsible for damages caused by flooding or other natural disasters. If so, you may believe that the landlord is responsible by default since it is the landlord’s property. However, unlike the US, Thai law does not infer a warrant of habitability in residential leases. Just because the landlord is leasing you a home does not mean that the landlord must keep the home in habitable condition or repair damages he or she did not cause. Nor is the landlord required to reimburse you for living expenses if you are unable to live in the home. You and the landlord are free to determine who will be responsible for maintenance and set the price of the lease accordingly.

By default, Thai law provides that if the building is destroyed the lease is void. Thus, you do not have continue paying on the lease, but neither is the landlord required to do repairs or reimburse you. The flood damages are neither your or your landlord’s responsibility and Thai law does not put all the burden on either party.

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• Power of Attorney
• Credit Card Inquiry
• Contract of Sale
• Right of Usufruct
• Special Power of Attorney
• Loan Agreement
• Bill of Sale
• Temporary Guardianship
• Money Due
• Articles of Incorporation
• Last Will & Testament
• Lease of Vehicle
• Prenuptial Agreement
• Promissory Note

NOTE :  These are very basic agreements and it is always best to speak to a qualified lawyer before signing any documents. These are basic documents which cover very complicated issues. Always speak to a Thai lawyer before drafting or signing any documents!

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Facts:

IP Law in Thailand

ABC filed an application for registration of “ANGEL SUPERMARKET” but the same was denied by the Registrar of Trademark in Thailand. The Registrar premised its refusal from the fact that the word “SUPERMARKET” is commonly used in business. However, the word “ANGEL” was considered by the Registrar hence, it ordered the publication of the application. DEF, who has been using the trademark “ANGEL” prior to the application of the ABC.

The Registrar however denied the opposition and granted the certificate of registration. DEF filed a case with the Court of First Instance in Thailand claiming that although it did not register the word “ANGEL” in Thailand, the similarity of ABC’s trademark and its trademark might confuse the public. DEF claims better right because of prior use. ABC argued however that “ANGEL SUPERMARKET” has been established since 1948 and was a registered trademark in Hong Kong, and Taiwan, and that DEF did not register the trademark yet.

Issue:

Whether or not DEF has better right than ABC for the trademark “ANGEL”.

Ruling:

Yes, DEF has a better right over the trademark “ANGEL”.

In a similar case decided by the Supreme Court of Thailand ( The Wellcome Foundation Co.Ltd. v. Dairy Management Co.Ltd.), the court ruled that the person who can prove prior use to the trademark has a better right to register the trademark especially so when the trademark has been registered and known to other countries and there is evident bad faith on the part of the other who uses the same. The similarity of the trademark might lead to confusion of the public as to the real origin of the goods. However, DEF cannot sue before Thai courts to prevent ABC from using the trademark because in Thailand, the owner of an unregistered trademark cannot sue before Thai courts.

Source: http://www.asianlii.org/th/cases

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Copyright Infringement

AB and BC are joint owners of a copyright in literary works. Without authority from AB and BC, DB reproduced a copy of the copyrighted work through the use of a photocopying machine. The copies of the whole textbook and some of its essential chapters were later on sold by DB to the public, again without the consent of the joint owners AB and BC. Hence, AB and BC filed a case against DB for infringement of their copyright.

AB and BC also asked the court for a confiscation of the machines used to commit the offense charge. DB however claims that his act cannot be considered as an infringement because the same falls within the exemption for copyright infringement as the same was for research and educational work because the copy of the said literary works were given to students.

Issue:

Whether or not the reproduction of the copyrighted works fall within the exemption from copyright infringement.

Ruling:

No. DB is guilty of copyright infringement.

In the case of Public Prosecutor v. Somsak Thanasaraseranee, decided by Thailand Supreme Court dated April 04, 2000 which is similar to the case presented, the court ruled that because a person who copied a copyrighted work is guilty of copyright infringement especially so because he was the one who initiated the copying and not the students. Thus, DB cannot claim the defense of “fair use” because it is clear that his acts were not conducted for research and educational purposes but for commercial and profit purposes. Hence the act of DB constitute literary work infringement.

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Facts:

Trademark Disputes

Company A sought the registration of trademark “DE FIANCE” for clothes and garments in Thailand. The Registrar of Trademark in Thailand however refused to allow registration because of an existing registered trademark in the name of ABC which is similar to Company A’s “DE FIANCE”. Company A appealed the decision of the Registrar to the Board, but the Board sustained the decision of the Registrar. Hence, Company A filed a case before the Central Intellectual Property and International Trade Court to cancel the defendant’s trademark registration.

Company A alleged that it had registered the trademark in other countries since 1982, thereby establishing a good reputation in some European Countries, in Italy, China, Singapore and Taiwan. It also presented proof that the trademark “DE FIANCE” was derived from the last name of their company’s president, thus claiming a better right to the trademark. ABC however maintained its position that Company A is not the owner of the trademark and that he has been using the same since 1986 for his goods sold in Thailand.

Issue:

Whether or not Company A has a better right because of prior use to the trademark “DE FIANCE”.

Ruling:

Company A has a better right.

The facts of the case are similar to the case of Orien SPA Co. Ltd. v. Piyawat Usahakamyang Co. Ltd., decided by Thailand Supreme Court on May 30, 2000. In the said case, the Supreme Court decided that the act of the defendant in the case which is similar to the act of ABC constitutes bad faith because it can be reasonably be implied that he sought registration of the Trademark in Thailand because the same was not registered in the name of Company A.

There can be no way that good faith on the part of ABC be a defense. Since the trademark of ABC is similar to the trademark sought to be registered by Company A, it might lead the public to confusion as to the real origin of the goods.  Hence, Company A which has prior use shall have a better right to register the trademark.

Nevertheless, under the laws of Thailand, an owner of an unregistered trademark cannot sue before any Thai Courts hence cannot bar ABC from using the trademark until it has been successfully cancelled before the Registrar of Trademark in Thailand.

Source: http://www.asianlii.org/th/case

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Unlike other countries of Asia, Thailand derived its laws primarily from their

Overview of Thailand Laws

Constitution, and from acts and statutes enacted by their Executive and Legislative branches of Government. Judicial decisions in Thailand do not form part of Thai legal system. Judicial decisions are not laws in Thailand because judicial precedent in Thailand is not binding and court, whether of equal rank or inferior is not bound to follow the same and can promulgate its own decision which may or may not be based on the existing jurisprudence. However, it has been a practice by Thai judges and Justices of courts to confer respect to the existing jurisprudence and hence, the influence.

The Constitution of Thailand is the supreme law of the country. It is called “ratha thama noon” which means “charter for the rule of the State”. All acts and statutes as well as judicial decisions, emergency decrees and other subordinate legislations must conform to it in order not to be invalidated. At present Thailand has over 17 Constitution since the absolute monarchy was overthrown. The 2007 Constitution brought major changes to the legal system as well as the political system of Thailand.

Acts and Statutes in Thailand also form part their laws and comprised their legal system. The primary codes are the Thai Civil and Commercial Code, the Thai Criminal Code, Thai Criminal Procedure Code and Civil Procedure Code. These include also the new Land and Revenue Code.

Thai laws also include Emergency Decrees or Royal Proclamations made by the King upon recommendation of the Cabinet in cases of emergency involving national security, national economic stability as well as public safety.

Thai laws also include treaties concluded by Thailand in favor of another country. Subordinate Legislation such as Ministerial Regulations issued by the respective Ministries of Thailand also formed part of Thai laws.

Thai laws also comprised of laws that govern obligations in Thailand, as well as contracts, family relations, succession, corporation, tort cases as well as personal injuries, including intellectual property and laws relating to foreigners.

Laws in Thailand, like in all jurisdictions, are constantly evolving as the legislators of the country review and modify laws to meet the needs of the society as well as to heed demands from international arena.

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However, a different rule can be found in the laws of Thailand.

Judgement in Thailand

In Thailand, foreign judgments are generally unenforceable in courts and are not generally binding. The reason for this is that Thailand is not a party to any convention, agreement or treaty for enforcement of judgment obtained in a foreign country.

Nevertheless, because of the principle of reciprocity, obligation and recognition of vested rights in Thailand, foreign judgments served as proof in evidence before Thai courts. Hence, as long as it is not contrary to Thailand’s public policy, it can be persuasive and can directly affect the decision of a judge deciding a case for enforcement of the claim. It must be remembered that before a foreign judgment can be equally considered as persuasive, the following serve as basic requirements:

1. The foreign court must be cloaked with jurisdiction;

2. The foreign judgment should not be obtained through fraud;

3. The foreign judgment should be final and conclusive;

4. The foreign judgment must not be contrary to Thailand’s public policy;

5. The foreign judgment must not be obtained in violation of the principle “auditor et altera pars” (the foreign court refused to hear one of the parties or that it did not notify one of the parties).

6. The foreign judgment must be for an action in personam, hence the judgment must be for a definite sum of money

Also, because Thailand acknowledges and honors the doctrine of “stare decisis”, the foreign case may be cited as judicial authority or precedent to resolve the issue or subject matter of the case.

    Foreign judgments are generally enforced in the following manner:

1. Bring a new action in Thai court;

2. Bring an action or judgment for reciprocal enforcement of the judgment obtained in a foreign court.

It is believed that laws relating to enforcement of foreign judgments in Thailand are not enacted by Thai legislature because of the rarity of cases such as this in the country. It is for this reason too that it did not gain popular attention in the country.

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Amendments to Thai Constitution

The proposed amendments consist of provisions such as punishment for MPs engaged in fraud without dissolution of the party. The amendment proposes that the guilty party will be banned from politics for a period of five years. There is also a clamor to reintroduce the 1997 Charter which requires Senators to be elected. There is also a proposal to abolish of minimum qualifications of party list MPs. These proposed amendments also include key points such as parliamentary approval before signing into international treaties, bilateral or multilateral agreements.

This aims to make it easier for Thai government to conclude bilateral or multilateral agreements by drafting a separate new bill that clearly specifies the types of agreements that need parliamentary approval.  An increase in the number of MPs to 500 is also pushed by the men behind the proposed amendment. The amendment also covers proposal to prohibit MPs from holding other political positions in Thailand. It also seeks to forbid members of the House of Representatives as well as Senators to intervene in the administration for their own benefits or for the benefits of their own political parties.

It is a fact that the proposal was introduced by the leader of the Red Shirts in Thailand which earn timely opposition from the yellow shirts. Opponents of the proposed amendments stated that the amendment will benefit the proposition’s self interest and not the people of Thailand. They argued that it is a sign of disrespect to the people of Thailand who voted for the ratification of the 2007 Constitution in the referendum held for the purpose. Hence, if they wanted to change the 2007 Constitution, the government should have to consult the people first.The opponents said that the proposal of increasing the number of party list MPs but decreasing the number of constituency based will only benefit coalition partners and new parties in Thailand.

Abhisit nevertheless assures that the proposed amendments will not materialize until the next election.

Thai present Constitution which took effect in 2007 amended the 1997 Thai Constitution. Indeed, the debates on the foregoing proposals are still laid in the floors of Thai Parliament.

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