A fiduciary duty in question
WERACHON LAW OFFICE : 315/304, Moo 12 Theppasit Road (Soi 12) Nongprue,Banglamung, Pattaya City Chonburi 20260
Many readers asked us how we have many never ending stories to share with you. It just comes from our “déjà vu” to hear many stories which are always too late to seek remedy. The time consuming litigation process always discourages most gullible foreigners to seek justice by the judicial mechanism by the old belief that “delay of justice is a denial of justice”. Nobody wants to spend money, time and morale for the justice which will cost you more than the value you will have. However, the natural justice should not be sought only when you have already ended up in the perdition. It should be sought from the first step you will walk in the road which may lead you to your destination or perdition. A good lawyer can always protect you by the old maxim “forewarned is forearmed” if you seek good advice. Only your wisdom can open the door of justice.
This issue is the story of a gullible property buyer who lost his hard earned money to the broker who jacks the whole trade. This unfortunate buyer can sue the broker to get his money back. However, the cost and value of justice must be calculated to find out the momentum. How much time and money will he have to spend? However, you can put the administrative pressure on this broker by filing a complaint with the Work Permit Office or Immigration Bureau to investigate the behavior of this fraudulent broker. Brokerage is a prohibited profession under the Foreign Occupation Act of Thailand. The profession in every country requires a license and etiquette to perform the fiduciary duty. This fake broker should be considered a public enemy and deported from Thailand.
If the buyer breaches the sales contract, the seller can forfeit the deposit. The money which can be forfeited by the seller must be only the money paid on the signing date of the sales contract. The second partial or installment is not deemed the money deposit. For more details, you may search the article about the forfeiture of the money deposit in the reading room of www.thaisolicitor.com.
We quote a letter we received recently, “I recently came across an article you wrote for the Pattaya Today dated 31 March 2009 and therefore I am writing to you both to see what advice if any you could give me regarding a land purchase problem. The circumstances of events are as follows:
“In April last year, I contacted a broker (foreigner) who was recommended by colleagues who had dealt with him before regarding land purchase in Pattaya. I asked him to contact the seller of a piece of land outside Pattaya which was advertised for sale. He contacted the seller and agreed a purchase price of 2 million baht.
“On 16th April, I transferred the sum of 201,200 baht into the broker a/c as a deposit to secure the piece of land.
“On 9th May, I transferred another 1,827,900 baht into the broker’s a/c and later that month, went to Pattaya to complete all the necessary paperwork.
“On 4th Jun, I transferred another 207,900 baht into the broker’s account giving a total of 2,237,000 baht.
“On 21st April, the broker transferred to the seller 100,000 baht as deposit and on 2nd june another 1m baht leaving a balance of 900,000 baht payable to the seller to complete the purchase.
“Through email obtained from the broker, he entered into an agreement with the seller to delay the payment of the remaining balance due to his need to settle an outstanding medical bill, with the understanding that he would pay the seller back after he had obtained funds from elsewhere. This was apparently verbally agreed by the seller. However, later contact with the seller’s wife rescinded this agreement leaving the sale of the land uncompleted and me stuck in the middle. This story was never fully explained to me and from June to now, the broker has been promising to sort out the mess to no avail.
“From the broker’s dealing with the lawyer representing the seller, he is of the ‘legal’ opinion that the payment of 1.1m baht is a deposit and thus non refundable. He is refusing to return any money owed to me and has now sold the land, for the original asking price, to a third party.
“From the broker’s perspective, he has openly admitted that everything that has happened is his fault. He has however, claimed he has no money to pay me back.
“I have copies of emails between the seller and the broker, although they contain little of relevance, plus a signed receipt from the broker detailing payments from me to him, copies of bank transfers to the seller’s a/c and receipt which clearly states 100,000 baht as deposit.
“From my point of view, I am the innocent party. I accept that 100,000 baht was necessary as a deposit, but the broker entered into a verbal agreement to delay full settlement of funds without my consent. The seller, I believe, has committed criminal intent by refusing to hand back 900,000 baht claiming it is a deposit!
“From my conversations with the broker, his lawyer has stated that even though the seller has re-sold the land, the original money paid to him by the broker can not be claimed back! Surely, this is against all forms of natural justice; how can a person benefit twice from selling land?
“I am at ‘wits end’ and have no idea what should be the next step forward”.