Two weeks after new consumer protections came into effect, few landlords have refunded security deposits collected in excess of the new legal limit. This despite the law, as of May 1, saying they must return to tenants anything over one month’s value following long-standing practice of collecting two – or more.
Neither are many landlords complying with the new law’s demand – on pain of potential criminal prosecution – that old rental agreements be thrown out and replaced with compliant ones.
Why is this? They may be predicting the unlikelihood that the authorities will get serious about putting them in jail for one year for not complying.
Risk assessment by landlords could go so far as seeing little ramification for their business when they feel there are too many defiant fellow landlords for the Consumer Protection Board to handle. The law is draconian in their view, having been promulgated by a small group of people without consulting them, their trade associations or holding any public hearings. The authorities have insufficient manpower to prosecute non-compliant landlords throughout the country.
Their bet is, as with many laws in the country, enforcement may be lax.
Read on for what they also don’t know: a powerful legal tool that is now available to all.
As for renters, what can they do if they don’t get the extra security deposit refund? Sue the landlord for a disputed amount worth as little as one month’s rent? Call the consumer protection board to complain? Despite the option to “Press 9 for English” upon greeting, the board’s 1166 hotline offers no service to non-Thai speakers. One foreign renter tells me he got through to someone who just hung up on him.
Yet the board does have an online system for foreigners to submit complaints in English. Register an account using your passport number and accept the “Notice Before Complaints” page. Don’t puzzle over the meaning of “All grievances or complaints should know Before” because this is straight up Google Translate material. Tick the boxes below and “Accept.” This will present you with a form in Thai, but click the unselected radio button at the very top of the form and – voila – it changes to English.
Complete both pages then check your email’s spam folder for a username and password. Now of course the actual complaint form is only in Thai, so you’ll have to Google Translate the instructions on submitting a complaint, but this is not difficult.
Now back to the new law.
A straightforward maximum one-month advance payment of rent permitted by the new law can also become an issue. Some landlords refuse to allow the renter to deduct the payment against the last month’s rent when the lease expires, preferring to enter into a verbal controversy to demand that the renter pay the last rent. Based on what they hear, renters won’t trust the landlord and fear no refund of the advance payment after the expiry – a fear not totally invalid. The peaceful solution for both sides is for the lease to expressly allow the set-off of the advance payment against the last month’s rent.
Landlords’ defiance of the new rules will not help them in regard to their rights, already lost, in a long-term lease. Under the new law, irrespective of what the lease says, the renter can simply terminate their four-year lease, a stability of income expected by landlords, by giving 30 days’ notice and a reasonable excuse: relocating back to a home country; moving closer to a factory in the provinces, inconvenience of transportation, the location too far from BTS, a wet walk on rainy days to the subway, a moral move to care for an aged parent among others. Practically, anything can be said by the renter to make the cause of termination sound reasonable. Efforts by the landlord to prove those reasons false would be expensive and next to impossible.
A prohibited surcharge on electricity and water is another area of contention. Renters well-versed in the current requirements of the law for the charge of the utility at cost would challenge those extra bills. Mark-ups on electricity have been a considerable source of income for the lessors—in some cases it is a double from 5 baht per unit of electricity to 10 baht; they don’t want to see this steady cash flow evaporate overnight. Tap water is cheap as it is subsidized by the waterworks authorities; each room will not incur more than 100 baht per month, a prevalent opportunity for some lessors to triple it to 300 baht.
Again, what is the recourse for the renter? A distress call to the consumer protection office hotline or firing a web complaint into the ether? Probably best to get a Thai friend on the phone for a common understanding of the nature of the complaint between you and the officer. Frequent visits by the consumer protection officials to the apartment building in response to multiple telephone complaints would not do the lessor any good.
A question arises as to how the renter knows that the lessor has five or more units of residential leases, the threshold for the applicability of the existing law. In an apartment building with five rooms or more, the fact is conspicuous to establish. Complications ensue in a condo or single-house rental. The renter can only investigate by themselves to find out – they need to talk to a lot of people – which can be a challenge.
Multinational companies wonder if the residential leases they sign with luxury serviced apartments or condos for their expatriates are governed by the present law. Yes, of course. The law does not exempt a corporate lessee or high-end international residence. As long as it is a residential lease, the company and the executive enjoy the benefits of the law: a 1-month security deposit, 1-month advance rent, utility charge at cost, one month’s notice to terminate a long-term lease, no lockout or forced eviction of the lessee, and other generous boons. This is a clear oversight by the drafters of the law who have a good intention to protect low-income renters and forgot to exclude metropolitan 5-star residences – enjoy the ride while you can.
All in all, landlords cannot underestimate the force of law. Not only there is a new consumer protection law in place, but also an earlier legislation of three years ago, the law on an amendment of the civil procedure code, which came into effect in December 2015. This new civil procedure law, which for the first time in Thai legal history, allows renters as consumers to combine their tiny claims together to form a larger claim called a “class action” lawsuit against the landlord, a product of many Thai legislators educated in U.S. law schools to emulate U.S. law.
A failure to refund an unlawful excess of one-month rent worth 20,000 baht, for instance, that the landlord feels they can get away with as the claim appears too small for them to be sued by renters, is suddenly enlarged to 100,000 baht for five renters or 2,000,000 baht for 100 renters in a large apartment building, heightening the possibility of the landlord to be sued by a group of renters in a civil case, a more probable threat than a regulatory jail term.
The parallel claim enlargement effect in a more expensive class action, such as SET-listed securities shareholders’ suits, product liability claims, health hazards from environmental impacts or matters involving a large number of injured public, can snowball likewise into billions of baht in exposure for corporations.
The recent civil and procedure code doesn’t specify the number of plaintiffs who can act as representatives of the group to launch a lawsuit. But given that the consumer protection act requires a minimum of five rooms for rent for the consumer law to apply, five renters should qualify as minimum representative plaintiffs. A couple of past successful class-action cases in Thailand had numbers of representative plaintiffs at 16 and 30 respectively. The monetary compensation from a winning lawsuit will be shared equally among all 100 renters who are members of the group and register to participate in the suit. The first of the two precedent cases saw each member of the group win a share of 20,000 baht each, an amount comparable to one-month’s rent.
The civil procedure law intends to add accessibility of low-income consumers to the courts by permitting them to do deals with lawyers for a low legal fee or no fee, subject to the lawyers’ reward being ordered by the court for winning the lawsuit when rendering out judgment. The lawyer’s reward – yes the word “reward” is a legal term used by the law instead of a normal lawyer’s fee – will be payable by the losing landlord in accordance with the court judgment. A failure to pay can lead to seizure or attachment of the landlord’s assets in a normal execution of judgment process and the lawyers will be classified among judgment creditors of the landlord in the same way as the winning renters.
In the eyes of many Thai lawyers, a class-action lawsuit by renters to demand the refund of security deposits and utility excesses pursuant to the law has a far better chance of winning than losing. As the consumer protection law anticipates antipathy by landlords, it requires that any lease provisions in violation of the law are null and void and substituted by the provisions of the law, with an additional legal provision to force the landlord to write and deliver a new lawful lease to all the renters.
Coupled with a demand for the landlord to rewrite and deliver the lease to be in compliance with the consumer protection law, plus damages for torts and breach of contract, the amount of the class action claim could be substantial, exposing landlords to this real risk, unforeseen by most.
Wirot Poonsuwan is a practicing attorney and can be reached at firstname.lastname@example.org.