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Newsletters March 2022

ADDITIONAL AMENDMENTS TO THAILAND’S CONDOMINIUM ADVERTISEMENT REGULATIONS

NO&T Asia Legal Review

Author

Chattong Sunthorn-opas (Co-author)

Publisher

Nagashima Ohno & Tsunematsu

Journal / Book

NO&T Asia Legal Review No.45 (March, 2022)

Reference

Practice Areas

*Please note that this newsletter is for informational purposes only and does not constitute legal advice. In addition, it is based on information as of its date of publication and does not reflect information after such date. In particular, please also note that preliminary reports in this newsletter may differ from current interpretations and practice depending on the nature of the report.

Background

In the past few years, Thailand has experienced a rather high number of consumer disputes in relation to condominium sales advertisements. This was due to complaints filed by consumers to the Office of Customer Protection Board in relation to the actual conditions of the condominium, which did not match the quality or understanding proposed in the advertisement by real estate developers. To address this, revised regulations have been introduced to govern advertisement of condominium projects both online and offline and business operators must ensure that their advertisement content complies with the relevant regulations.

Previously, the advertising statement of the condominium sales was mainly regulated by the Ministerial Regulations No.3 of 1983, issued pursuant to the Consumer Protection Act of 1979 (the “CPA”)※1. However, the said ministerial regulations did not cover advertising statements which failed to specify the detail of compliance with the Enhancement and Conservation of the National Environmental Quality Act of 1992, i.e., the approval of the Environmental Impact Assessment (EIA) Report.

On 20 December 2021, the Ministerial Regulations prescribing the Advertising Statement of Product or Service Which is Unfair to Consumers or any Statement Which May Produce Adverse Effects on Society at Large of 2021 dated 22 November 2021 (the “Ministerial Regulations on Advertisement”) was published in the government gazette to replace the previous ministerial regulations. Pursuant to the rationale of the Ministerial Regulations on Advertisement’s promulgation, the new regulations were necessary because at present, there are many new technologies for advertisement of goods and services and unfair advertisement would affect public and consumer benefits. The law needs to match with such technological advancement, and ensure that the advertisement statement is appropriate.

Generally, the Ministerial Regulations on Advertisement aim to integrate and combine previous regulations into one comprehensive list. This constitutes the uniform negative list of the advertising statement of product or service, which are unfair to consumers or may produce adverse effects on society at large issued in accordance with Section 22 Paragraph two (5) of the CPA.※2

The Advertising Statements of Condominium Sales

Under the Ministerial Regulations on Advertisement, the advertising statements of condominium sales can be divided into two categories as follows:

1. Condominium which has not been registered under condominium laws

The advertising statement, which does not contain the following statements, will be deemed unfair and may produce adverse effects on society at large:※3

Advertising channels	Required details
Newspaper※4 or print media, electronic media or other similar electronic advertisement media	(a) Information on whether the project has relevant building permit from the local officer under the building control laws; (b) Information on whether they have approval under the promotion and protection of environmental laws (in case the project is subject to Environmental Impact Assessment (EIA) Report’s preparation); (c) Month and date of the construction commencement and completion of the condominium; (d) Statement which shows that they will be registered as a condominium under condominium laws; (e) Location of the land, number of title deeds, land size of the project and the map showing the boundary of the land and location of the condominium; (f) Statement showing whether the land and condominium building does not have or have obligation with financial institutions, individuals or any juristic persons; (g) Number of floors and number of condominium units; (h) Statement showing that in the same condominium, there are condominium units for residential or office; or for residential and office purpose; (i) Statement showing expenses and taxes, which the owners of condominium units have to pay under the condominium laws; (j) Items and sizes of the asset which are private properties and common properties. Should there be an advertisement concerning the items and sizes of asset for private properties and common properties that are different from the condominium laws’ stipulation, in such case, information on the month and date of commencement and completion of such construction, procurement, or installation of such property shall be stipulated; (k) Name and address of the condominium business operator and in case of juristic person must stipulate the amount of registered capital, paid-up capital, the name of the managing director or partner or authorized director of such juristic person; and (l) Statement confirming that the advertised photograph matches the actual condition or models are based on actual conditions.
Broadcast radio	Month and date of construction commencement and expected completion of the condominium.
Broadcast television	(a) Month and year of construction commencement and completion; and (b) Statement confirming that the advertised photograph matches the actual condition or models are based on actual conditions.
Advertising banner or similar advertising media	(a) Month and year of construction commencement and completion; (b) Location of the land, number of title deeds, land size of the project and the map showing the boundary of the land and location of the condominium; (c) Statement confirming that the advertised photograph matches the actual condition or models are based on actual conditions; and (d) Information on whether they have approval under the promotion and protection of environmental laws (in case the project is subject to EIA Report’s preparation).

2. Condominium which has been registered under condominium laws

The advertising statement, which does not contain the following statements, will be deemed unfair and may produce adverse effects on society:※5

Advertising channels	Required details
Newspaper※6 or print media, electronic media or other similar electronic advertisement media	(a) Condominium registration number; (b) Statement showing the approval, letter number, date month and year of approval under the promotion and protection of environmental laws (in case the project is subject to EIA Report’s preparation); (c) Location of the land, number of title deeds, land size of the project and the map showing the boundary of the land and location of the condominium; (d) Statement showing whether the land and condominium building does not have or have obligation with financial institutions, individuals or any other juristic persons; (e) Number of floors and number of condominium units; (f) Statement showing that in the same condominium, there are condominium units for residential or office; or for residential and office purpose; (g) Content showing expenses and taxes, which the owners of condominium units have to pay under the condominium laws; (h) Items and sizes of the asset which are private properties and common properties other than stipulated under the condominium laws; (i) Name and address of the condominium-registered person and in case of juristic person, the amount of registered capital, paid-up capital, name of the managing director or partner or authorized director of such juristic person; and (j) Statement confirming that the advertised photograph matches the actual condition or models are based on actual conditions.
Broadcast radio	Condominium registration number and name of the condominium-registered person
Broadcast television	(a) Condominium registration number and name of the condominium-registered person; and (b) Statement confirming that the advertised photograph matches the actual condition or models are based on actual conditions
Advertising banner or similar advertising media	(a) Condominium registration number and name of the condominium-registered person; (b) Location of the land, land size of the project and the map showing the boundary of the land and location of the condominium; (c) Statement confirming that the advertised photograph matches the actual condition or models are based on actual conditions; and (d) Information showing the approval under the promotion and protection of environmental laws (in case the project is subject to EIA Report’s preparation).

Furthermore, the Ministerial Regulations on Advertisement require that the advertising statement must be clearly seen and legible, or the letter size must be more than two millimeters for newspaper advertisement or must be bigger than one- third of the biggest banner letter size or any similar advertisement media, or must contain the information about where customers may request more details on the advertisement.※7

Penalty

Any person who, in an advertisement, fails to comply with the Ministerial Regulations of Advertisement issued under Section 22 Paragraph two (5) of the CPA, shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding sixty thousand Baht, or both.※8

Moreover, in case the perpetrator is a juristic person, if such misconduct of the juristic person arises from the order or act of the director, manager or any responsible person for such juristic person, or in the case that the person has duty to order or act but omit from such order or act, which caused the juristic person to violate, such person shall be liable under the provision of such violation.※9 Therefore, prudent business operator, i.e., seller of condominium, should also verify compliance of advertisement materials used by the project developer. If there are non-compliant advertisements being used, they should be discontinued and corrected to ensure compliance and limit liability under such laws.

Our Remarks

Based on the above disclosure of information and advertisement requirements, business operators should ensure that disclosed and advertised information is complete and accurate to prevent non-compliance. Additional information should also be available if consumers wish to obtain further details and supporting documents clarification. The Ministerial Regulations on Advertisement aim to regulate any misleading advertisement information or non-disclosure, which means consumers should be able to enter into the sale and purchase agreement of condominium unit with sufficient information for them to make an informed decision to purchase. Compliance by business operators, who have fully disclosed all the necessary information to consumers, would also benefit the justice system in reducing the log for cases concerning condominium disputes between consumers and real estate developers in the future.

Endnotes

*1
As amended by the Ministerial Regulations No.7 of 1995 issued pursuant to the CPA.

*2
Section 22 Paragraph two (5) of the CPA prescribes that an advertisement shall not contain any statement which is unfair to consumers or any statement which may produce adverse effects on society at large, be it a statement as to origins, conditions, qualities or characteristics of goods or services as well as the delivery, procurement or use of goods or services. Other statements as prescribed in the Ministerial Regulations are deemed to be statements which are unfair to consumers or statements which may produce adverse effects on society at large.

*3
Clause 8 of the Ministerial Regulations on Advertisement.

*4
Newspaper advertisement is not subject to item (h) or (i) or (j) requirement.

*5
Clause 9 of the Ministerial Regulations on Advertisement.

*6
Newspaper advertisement is not subject to item (f) or (g) or (h) requirement.

*7
Clause 11 of the Ministerial Regulations on Advertisement.

*8
Section 48 of the CPA.

*9
Section 59 of the CPA.

March 28, 2022

This newsletter is given as general information for reference purposes only and therefore does not constitute our firm’s legal advice. Any opinion stated in this newsletter is a personal view of the author(s) and not our firm’s official view. For any specific matter or legal issue, please do not rely on this newsletter but make sure to consult a legal adviser. We would be delighted to answer your questions, if any.

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Lawyers

Chattong Sunthorn-opas Chattong Sunthorn-opas

Associate

Bangkok

ADDITIONAL AMENDMENTS TO THAILAND’S CONDOMINIUM ADVERTISEMENT REGULATIONS

Background

The Advertising Statements of Condominium Sales

1. Condominium which has not been registered under condominium laws

2. Condominium which has been registered under condominium laws

Penalty

Our Remarks

Lawyers

Chattong Sunthorn-opas Chattong Sunthorn-opas

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