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Illegal hotels already under amnesty, get new amnesty

Illegal hotels already under amnesty, get new amnesty

PHUKET: Operators of illegal hotels are being urged to take advantage of the nationwide order by Prime Minister Prayut Chan-o-cha on June 12 for illegal hotel operators to register with local authorities. The order also waives any prosecution for operating illegally if they do register with local authorities.

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By The Phuket News

Thursday 27 June 2019, 11:50AM


The order from PM Prayut came just seven days after Raksagecha Chaechai, Secretary-General of the Office of the Ombudsman of Thailand, was in Phuket in person to discuss the issue of short-term rentals. Photo: PR Dept

The order from PM Prayut came just seven days after Raksagecha Chaechai, Secretary-General of the Office of the Ombudsman of Thailand, was in Phuket in person to discuss the issue of short-term rentals. Photo: PR Dept

NOTE: The original photo has been replaced following a request from the hotel that was featured in it. The photo did not identify which hotel it was.


“In a significant move by Thailand’s government, a hotel licensing amnesty program has been announced on a nationwide basis. Clearly pressure by hotel owners amidst a large-scale influx of non-licensed accommodation has spurred the action,” noted Bill Barnett, Managing Director of tourism and hospitality consultancy C9 Hotelworks, in an email missive dispatched this morning (June 27).

Mr Barnett highlighted a Client Alert issued by legal firm Baker McKenzie, which pointed out, “Thailand's National Council for Peace and Order (NCPO) issued Order No. 6/2562 on 12 June 2019, to temporarily suspend the enforcement of town planning and local building control regulations on certain buildings that are used for hotel business operations. The order also grants amnesty to hotel operators who have not been in compliance with these regulations and hotel laws in the past.”

(See previous stories on the order issued by PM Prayut posted by The Phuket News here and here.)

The amnesty is in effect from June 12, 2019 to August 18, 2021, the Baker McKenzie alert pointed out.

“It places a hold on the enforcement of town planning regulations and local building control regulations (e.g. those prescribed by municipalities and sub-district administrative organizations) on buildings that were built before 19 August 2016, and are being operated as hotels without meeting/function rooms,” the alert noted.

The alert continued: “Certain types of hotel operators can be released from criminal liability that would otherwise have resulted from non-compliance with the town planning, building control, and hotel laws. To avail this, building owners who have been operating their property as a hotel prior to 12 June 2019 need to notify the local authority of any of the following non-compliant practices:

  1. operating a hotel business without a hotel license as stipulated by the Hotel Act, B.E. 2547 (2004);
  2. land use in violation of regulations under the Town Planning Act, B.E. 2518 (1975);
  3. modifying a building without a building modification permit as stipulated by the Building Control Act, B.E. 2522 (1979);
  4. use of a controlled-use building without obtaining a certificate for building modification as stipulated by the Building Control Act, B.E. 2522 (1979); and
  5. changing a building's usage without obtaining a permit to change the building's purpose as stipulated by the Building Control Act, B.E. 2522 (1979).

“Once the local authority has been notified, owners will be given the opportunity to take the necessary measures to improve the current conditions of the buildings to meet the requirements set by the NCPO order. This includes measures such as improving the building's fire safety system.

“The notification and the building improvement of fire safety systems must be completed within 90 days from the date of the NCPO order (i.e. by 9 September 2019). Hotel operators, who notify the local authority of their non-compliant practices and complete their building improvements of their fire safety system within such 90-day period, will be exempted from complying with the town planning regulations and from the criminal liabilities for their past non-compliance.”

“The Minister of Interior has yet to prescribe detailed criteria, procedures, and conditions on this matter. Hotel operators are urged to closely monitor relevant regulations as it paves way for hotel operators to ensure compliance with the town planning regulations, without being subject to penalties, and enjoy continued business operations. However, as the time for seeking this amnesty is limited to only 90 days, hotel operators should take necessary steps and actions to improve its fire safety measures as soon as possible,” Baker McKenzie advised. (See Client Alert in full here.)

However, as pointed out by legal firm Duensing Kippen in an article in The Phuket News three years ago, illegal hotel operators were already exempt under a five-year nationwide amnesty for breaches of operating under the Hotel Act if the operators had failed to comply with the Building Control Act.

The Ministry of Interior on August 19, 2016 issued a new regulation to make it easier for more property owners – especially condo owners – to obtain a hotel license, the article noted.

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“Obtaining a hotel license for most such owners has been very difficult – if not impossible. A major reason for this is that in order to obtain a hotel license the property must comply with the requirements for certification for use of the property as a hotel under the “BCA” – the Building Control Act (1979),” the article’s author, Jerrold Kippen, pointed out. (See story here.)

The regulation introduced in 2016 is called the Ministerial Regulation Prescribing Descriptions of Other Types of Building Used for a Hotel Business Operation 2016 under the Building Control Act (1979).

However, the regulation applies only to buildings that existed before it came into force and whose owners desire to use the property as “Hotel” as defined by the Hotel Act, Mr Kippen noted – ironically, the same condition that applies under the current amnesty.

The regulation issued in 2016, and the amnesty provided under it, remains in effect for five years, coincidentally until nearly the exact same Aug 21, 2021 deadline in the latest amnesty issued by PM Prayut on the condition that hotel operators register with local authorities.

An amnesty for illegal hotel operators to register was offered in Phuket in 2017, and saw more than 1,000 illegal hotels register. (See story here.)

At that time it was estimated that more than 84% of venues operating as short-term accommodation in Phuket were operating illegally, as officials struggled to contain and legitimise online rental booking platforms such as Airbnb. (See story here.)

Much of the focus has been on condo owners and their possible breach of the Hotel Act by offering accommodation for periods of less than 30 days.

Duseing Kippen have also already provided comprehensive explanations as to what constitutes illegal renting of condos, the tax liability, and the legal issues with possible breach of the Hotel Act.


See:

Is your house or condo an illegal hotel?
(Click here.)

Debunking misinformation fallout from the condo rental fiasco
(Click here.)

Restrictions eased on short-term rentals
(Click here.)

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BenPendejo | 02 July 2019 - 10:20:44

Total fiasco again...showing that government regulation has about as much meaning as a schoolyard pinky promise with your fingers crossed behind your back.  And I'll guess, like all other "crackdowns", very few people have been prosecuted over this...maybe a few farangs that were too successful and fined out of envy/jealousy.  Just seems to be the way it works here.

CaptainJack69 | 29 June 2019 - 12:46:01

So... if the issue is too complicated to enforce then lets make it more complicated and not bother enforcing it at all?  Well I suppose it\'s better than admitting failure right?

Kurt | 28 June 2019 - 10:41:59

Amnesty over amnesty! Hahaha.  ...Great, as long we not have to enforce serious our laws everybody happy.... But, Reading about all these Acts for Hotels, Building, Modifications, Building Control, Town Planning, etc.,  is there nothing written in these acts about untreated polluting free flowing away waste water and other Phuket environment issues? And if so, why not enforced?

 

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