Dr. Phalthy Hap Venue: PUC Date: February 20-21, Outline

Transcription

1 Cambodian Society of Comparative Law Dr. Phalthy Hap Venue: PUC Date: February 20-21, Outline Overview of co-ownership in Cambodia The management of condominium operations Challenges 2 1

2 Overview of Co- ownership in Cambodia (1) The glossary of the 1992 Land Law defined the coownership as the ownership of several persons. With this regard, co-owner may be the owner of indivisible ownership and adjoining ownership (The 1992 Land Law, Arts ). The 2001 Land Law stipulates clearly the meaning of co-ownership which means ownership of several persons exercising exclusive rights over certain parts of the property, and the other parts named common parts (The 2001 Land Law, Arts. 10, 75-85). 3 Overview of Co- ownership in Cambodia (2) The registration guidance of co-owned buildings has been available since September 2005 (Instructive Circular on the Registration of Buildings and Parcels of Co-owned Buildings, No.01DNS/AKKD, Sept. 21, 2005). The management and use of co-ownership was set by in August 2009 (Sub-decree on the Management and Use of Co-owned Buildings, No. 126ANK/BK, August 12, 2009). Certificate sample Registration of Private Parts of Co-owned Buildings was available in November 2009 (Proclamation on Establishment and the Use of Document Serving the Registration of Private Parts of Co-owned Buildings, No. 262PK, November 30, 2009). 4 2

3 Overview of Co- ownership in Cambodia (3) The ideas of managing and registering co-owned buildings and registering private parts of co-owned buildings have led to remarkable decision to grant ownership of private parts of co-owned buildings from the first floor up to foreigners (Law on Granting Ownership over Private Parts of Co-owned buildings for Foreigners, May 24, 2010). The Management of gated community (Borey) has been available since March 2011 (Sub-decree on the Management of Gated Community, No. 39ANK/BK, March 10, 2011). 5 Overview of Co- ownership in Cambodia (4) Meaning of condominium: 1. Ownership in common with others, 2. A single real-estate unit in a multi-unit development in which a person has both separate ownership of a unit and a common interest, along with the development s other owners, in the common areas. (Black s Law Dictionary, 8th ed., 2004) 6 3

4 Overview of Co- ownership in Cambodia (5) Condominium has not been defined in any Cambodian legal regulations. But the term condominium falls under the example of co-owned buildings. 7 The Management of Condominium OperaDons (1) To some extent, there is no difference between managing co-owned buildings and condominiums since condominiums are considered as co-owned buildings. No specific legal regulations governing condominium operations yet, therefore condominium operations seem to be under: The 2001 Land Law Sub-decree on the Management and Use of Co-owned buildings, 2009 Law on Granting Ownership over Private Parts of Co-owned buildings for Foreigners, May 24, 2010 Sub-decree on the Management of Gated Community, March 10,

5 The Management of Condominium OperaDons (2) Registration of co-owned buildings and land parcels covers: Land parcels and buildings of the ground floors with more owners of the private parts. Land parcels and many storey buildings with common ladders, premises and roads to private parts. Land parcels consisting of separate many storey buildings with various owners. Land parcels and buildings were formerly owned by one owner but later on one part or some parts are sold to other parties. (Instructive Circular on the Registration of Buildings and Parcels of Coowned Buildings, No.01DNS/AKKD, Sept. 21, 2005). 9 The Management of Condominium OperaDons (3) Co-owned building is the building or construction which consists of various owners living in. Co-owned building includes: Villa Semi-villa Many storey apartment Condominium The likes Private parts refer to every part of a co-owned building which is privately occupied and used. Common parts refer to every part of co-owned building which is the subject of use or interest of all co-owners such as premises, ladders, parks, pathway, entrance, party walls, other common places. (Sub-decree on the Management and Use of Co-owned buildings, No.126ANK/BK, August 12, 2009) 10 5

6 The Management of Condominium OperaDons (4) Co-owned land parcel is the land portion of a coowned building that has specific location and size for constructing a co-owned building or existing coowned building under co-owned building project. It is under the joint management and use of all co-owners. Land lot refers to private part connected with common part of co-owned building. Each land lot has various value depending on the size of private part. (Sub-decree on the Management and Use of Co-owned buildings, No.126ANK/BK, August 12, 2009) 11 The Management of Condominium OperaDons (5) Condominium = co-owned building Condominium developer: Owner of the condominium Owners of private parts Lessees of private parts Lessee of the condominium Lessees of private parts Private parts Image from Google ladder garden Common parts 12 6

7 The Management of Condominium OperaDons (6) Co-owners of condominium can prepare an internal rule regulating the obligations and maintenance of the common parts. Lessees of condominium may be under the internal rule set by the condominium developer. Image from Google 13 The Management of Condominium OperaDons (7) Foreigners are allowed to own private part of co-owned building starting from the first floor. Those foreigners are considered as special co-owners. With regard to common parts, special co-owners have: right of use and right of enjoyment With regard to private parts, special co-owners: Are entitled to buy private parts from the first floor only 70% of the total co-owned buildings. Are not entitled to buy private parts of any co-owned buildings within 30 km from the distance of the border. Image from Google 14 7

8 The Management of Condominium OperaDons (8) Law on Granting Ownership over Private Part of Co-owned Buildings for Foreigners has the main purposes attract direct foreign investment. Foreigners may buy lots of units in the condominium so that the condominium construction may boost faster. Image from Google 15 Challenges (1) No clear provision concerning condominium leads to vague interpretation. Ownership certificate of a land parcel consisting of a co-owned building belongs to a landowner developer. Ownership Certificate of a land parcel belongs to a landowner while a developer may hold a certificate of perpetual lease. 16 8

9 2/20/16 Challenges (2) Failed to pay the debt Mortgage Developer Image from Google Claim for the sale Owners of each private part??? 17 Challenges (3) Failed to pay the debt, the developer escapes Image from Google Incomplete condominium Mortgage Developer Claim for the sale Owners of each private part also owe the bank??? 18 9

10 Conclusion Granting ownership over private parts from the first floors to foreigners is a way to absorb more foreign direct investment. Stipulating clearly the condominium in law will have a clear stance of condominium operations thereby attracting more construction investment. 19 Thank you!!! QuesDons and Answers Contact: hphalthy@yahoo.com