SDM0712

“Please, use a better excuse.”

I need make no excuse to you or anyone else. As far I am concerned I will only work within the area that I am qualified to do so, so I will not offer legal advice.

Have a nice day.

SDM

Hi Tapster

I have no idea when the first 30+30+30 lease pattern was first applied. I am also unaware of the 1^st renewal being challenged legally to date. I wish it would happen so at least we would all know where we stand. But I have a sneaking suspicion that it won’t ever happen, because it is not in the interests of the people with the power (money). This is Thailand and even the events of the last few days should seal the “ who knows!” attitude. Not really helpful I know.

Adopt the attitude that the first 30 years period is safe and allow for the worst case scenario in 30 years time, and thirty years thereafter. Really it depends on your attitude to risk and not that it really means anything but there are several hundred expats living on Phuket alone, and have been for many years on this basis. But as Ian Fleming would have said, never say never.

With regard to the lawyer incidentally I don’t just mean consult with regard to the 30+30+30 principle, I mean with regard to any matter of importance that has legal implications. Before I became involved in business here I had two or three meetings with my lawyer before I was satisfied.

In my career I have dealt with so many people who have boasted to me about how they purchased without using a lawyer, then to discover some awful legal problem when they came to sell or before.

If I were in your shoes I would certainly want to get it from the horse’s mouth before even starting to consider the idea.

But to answer you real question - no, there is no case law on the matter, just opinion and lawyers trying to be clever.

Regards

SDM

My dear Khun Jean

Considering the fact that we both have similar reservations, and our opinion is quite similar, this is indeed a very unusual debate. It seems that the main difference is that you advocate a layperson reading the translation of a foreign legal document and drawing their own conclusions and further on the basis of those conclusion deciding on whether to make a possibly life changing decision. You seem to intimate that the advice from the expert would be unreliable, possibly biased, but interestingly you then go on to say that you have yourself consulted a lawyer.

I on the other hand advocate a buyer taking the best legal advice available and on the basis of that advice then making an informed milestone decision. Your further suggest that I should offer such advice to buyers based upon my laypersons interpretation of a Law that I am unable even to read in its native text.

What you are failing to appreciate, and perhaps I am not being clear, is that in any legal document, in any country, the language is open to interpretation and the words chosen have in all probability been chosen for that purpose. In the UK we use the term “legalese”, and it’s not viewed as a positive thing. Until a case hits the Courts no body knows for sure what the outcome would be. All I would say is that this is Thailand and some say that nothing is exactly as it seems. If such a case ever did come to court and the multiple lease principle were ruled against, it would cost this country billions of baht.

My point is further made by the multiple definitions we have both found for the term “ Treaty”. Neither one of us is wrong, in fact we are both correct as born out by the definitions that we have both posted. And here is my point, the mere fact that we have both drawn alternate definitions for exactly the same word shows clearly that there are different ways to interpret it.

Before I close I have a few observations:

“Legal interpretation by an agent? How suddenly you know everything about full legal definitions? “

I have merely stated my understanding of the word “ treaty” and further posted a definition that confirms this. I have not made a legal interpretation or offered legal advice. I have disagreed with you and posted evidence to support this.

“Meaning changed according to your needs?”

This is an odd comment when you consider that I have maintained throughout that professionally I don’t advise on these issues under discussion, I merely pass buyers onto someone who is professionally qualified to advise. Anticipating that you will retort by suggesting I recommend a “ friendly “ lawyer in fact I do not. I offer a couple of recommendations yes, but who they speak to is down to them,

“A treaty can be a very common term when used between parties that are not a state or government” SDM

I don't disagree with that. It can then be replaced with agreements and contracts.” KJ

My thanks, and again confirmation that the term “ treaty “ has multiple meanings, applications and can be replaced with similar wording.

“In a document from the government however it means an agreement between states. How difficult is that to understand?”

As I am neither a Lawyer, an International Lawyer nor a Government official I am not qualified to answer and if I did my unqualified understanding is completely irrelevant and of absolutely no value.

“I found an online translation here: http://www.thailandl...w-land-code-act

there is a whole chapter about "Limitation of Aliens (foreigners) Rights in Land" It is one translation but it is word for word the same as the one i have.”

Quite useful I am sure however my issue still remains with the quality of the translation. How often have any of us been to Immigration, a Police Station and read a very unusual English guide or instructions. I would also say the Land Department but I cannot remember being at any Land Department in any province where there has been any decent English translation of anything, apart from “Toilet” or “Exit”.

Incidentally I am grateful for the definition of “Alien”. I know it a common term Stateside but not often used in England outside the cinema environment. My friends and family are all amused at my description in my work permit and I am often asked if I need to “phone home”

Have a good day.

Regards

SDM

Dear KJ

The term "treaty " is a very common legal term. As you can see in the definition that I have posted you are not wrong, and your interpretation is certainly the same as most people would apply but clearly the fact is that you are unaware of the full legal definition.

You have also not considered that which I have posted several times, but I shall repeat it.

The legislation to which you refer does not mention the word "treaty". I have not read the original Thai text but it will use a word that is similar, So if an accurate interpretation is required the services of someone who is both an expert in Thai Law and the Thai language should be used.

S

a. A formal agreement between two or more states, as in reference to terms of peace or trade.

b. The document in which such an agreement is set down.

2. A contract or agreement.

3. Obsolete

a. Negotiation for the purpose of reaching an agreement.

b. An entreaty.

http://www.thefreedictionary.com/treaty

I don't know how it works in other countries but if he's from the UK the best advice to him must be to go home. The state will give him money, accommodation and healthcare. Over here with limited money and presumably no health insurance he could end up becoming ill and worse.

It's a bitter pill to swallow, but that is what I would tell this chappy. It is what it is.

SDM

We rent (and sell) to Thais and Non-Thais (I'm getting to really dislike the term "Farang"), and although most of our stuff is priced out of the Thai market, the price is the price. I think it's fair to say that the type of tenant a property attracts is a reflection of the property itself. An expensive well maintained and properly priced property will attract and usually get decent tenants and the opposite is also true. As an agent I tell my Landlords that even if we are not managing, if they have a problem to call me. If I can deal with it quickly I will, I say the same to the tenants also. On the very few occasions I have had a call from a Landlord saying the rent is late I have normally gone to see the tenant and all is rectified quickly. It happens rarely.

Unfortunately over here in The Land of Smiles (!) we cannot reference or get legal or rent protection insurance. However we also don't need to serve Section 21s or 48s and wait six months to get possession back.

My best advice over the years to landlords is to go on their gut instinct. Forget the money but if they turn up looking like tramps, or you just don't like them but can't put a finger on why, say no thanks.

Same with tenants or buyers looking for property, if you think you are being ripped off then walk away there's lots around.

SDM

Still it is rather simple:

Section 86 Aliens may acquire land by virtue of the provisions of a treaty giving the right to own immovable properties and subject to the provisions of this Code.

Now list the countries that have a treaty with Thailand about owning land

None

In how many ways can you interpret this?

Is this rather simple? I think not.

Lets look at this from a Laypersons point of view, since my buyers certainly fall into this category, as would it seem are the posters on this topic, including myself.

“Section 86 Aliens”

This requires further reading of relevant sections of Law that make a definition of what these are.

“ may acquire land by virtue of the provisions of a treaty”

This seems to allow land to be acquired by use of a treaty, however it does not describe the form that this “ treaty” should take. When you say “Now list the countries that have a treaty with Thailand about owning land “ you seem to presume that the use of the word “ treaty” implies a formal agreement between two nations, where in fact the word “ treaty” merely means any form of agreement. Examples of a treaty could be, a tenancy agreement, a trade agreement, a contract to purchase, a cheque (check, money order), in fact any form of agreement in the strictest legal definition of the word.

“Immovable properties”

Although this would seem to imply a building since one would traditionally be quite difficult to move it is not impossible and therefore not “ immovable”. As an example I would describe a structure such as a bridge as most definitely “immovable”, or really unmovable, however you will be aware that the famous London Bridge was moved from the banks of the River Thames in London to Lake Havasu in Arizona by Robert McCulloch in 1967. In fact as I understand it he thought he was buying Tower Bridge. To conclude, there is no such thing as an immovable property.

“Subject to the provisions of this code”

This requires complete reading and absolute understanding of this entire Law since the statement leaves the way open for another clause, which may very well be minor in nature and size, to have a major impact.

“How many ways to interpret this”

I really cannot list how many ways, but the definition is not absolutely clear and that is ignoring the fact that your quote is not in fact Thai Law. It is merely someone trying their best to find the equivalent words in English that match the original Thai text of the Law. In Court it is the Thai text that is applied, a Thai Judge would not be interested in reading the English, since the Law was written in Thai, and past into Law by the Government in Thai. The English translation is irrelevant in Court and only a courtesy that our Thai “ friends” make to us. The translation should be viewed as nothing more than a rough guide.

This statement really just means that some people can buy land following an agreement with an unmentioned person/party that allows them to put a house on it.

As you know KJ I think your concerns are valid, but there is no substitute for expert advice.

SDM

“So what you say is that only a lawyer can read?

Did you ever try to read it, or you already made the conclusion that it must be to difficult before reading even one sentence.

I call it laziness and it is naive to trust someone 100% who has a personal interest.

You would actually follow a lawyers advice to do something illegal (company with nominees) out of lack of knowledge?.

Good luck to you, because you will need it.”

I think the point is that most people can read, but the ability to read is not in question here, it is ability to interpret the spirit of the meaning that might be applied in Court. For example since most of my two and a half decades of professional experience was in London I will use that location as my reference. I am English, English is thus my mother tongue, so I would consider that I understand English in its purest form very well. I have read and am familiar with all British Acts of Law that regulate and concern the real estate market. Such Laws as The Estate Agents Act 1979, The Property Misdescriptions Act 1991, The Trades Descriptions Act 1968, 1987. In fact you might be surprised to learn that in the UK it is actually a criminal act to lie about a property or anything related to it. The offender would be tried in a criminal court as opposed to a civil court and if found guilty could go to jail. So, sufficed to say, it is important that we understand our Laws over in Blighty.

Now bearing in mind I am an educated Englishman, reading the text of a Law in my own language I must say that I understand the words, but the interpretation, or to be more specific, the possible alternate interpretations is completely another matter. So, if I have an issue, I would consult a specialist lawyer for a professional opinion, not to do so is shear folly. After all if the various Laws were so simple to understand why would these professionals would go to university for upto seven years if it was only a simple matter of reading and immediately understanding.

To return the 6500 miles to Thailand where even some of the most rudimentary translations from Thai to English are inaccurate to say the least is it really being suggested that we should read the English translation of a Thai legal document and draw a definite and absolute conclusion from that. Again, shear folly. Read the translation if you want, but use this as a basis to ask you lawyer questions/ Now that I agree with. But do not base your financial decisions on reading a Law in a second hand language.

Our KJ has intimated that I am being unprofessional by not giving my buyers advice based upon knowledge gained by reading of Thai Law. I would say the complete opposite in fact. I would say that as soon as I start advising on Thai Law, and putting aside the fact that I would be breaching the terms of my work permit, and Thai Law itself, I could be doing “harm” by giving the wrong advice that would only be apparent in years to come.

I am familiar with the process of transplanting a heart, but I am not a surgeon so would never attempt it (!)

I am familiar with how to pilot a passenger jet, but I am not a pilot so would never attempt it.

I am familiar with the process of removing a tooth, but I am not a dentist so would never attempt it.

I am familiar with both English Laws and Thai Laws, but I would never advise on them because I am not a lawyer.

I think to conclude since most of us cannot know absolutely everything there must come a point where we must rely on the advice of a professional.

Before you commit to anything, see a lawyer of good standing and reputation, and take advice.

SDM

I noticed in our local Robinsons in Jung Ceylon Phuket a sign above some of the clothes that said " Buy 3 get 2, ask at the information couter "

When I said to the staff that if I bought 3 I would quite like at least 3 she was very confused.

SDM

I guess if I'm the "baldie " from Phuket and parrallaxtech is the " gamer " from Samui then KJ must be the " know it all " from Bangkok.

It seems thoughout this our KJ has assigned an opinion to me that I do not have, in fact I haven't really expressed one with regard to the 30,30,30 scheme, I have just explained it.

It may come as a surprise to him that I don't really disagree with his analysis either. However we are all adults so the best I can do is to advise that buyers get the best legal advice that they can and then make an informed decision. I would say that most of my buyers hope for the best but allow for the worst. Like (I assume KJ), I am not a lawyer and therefore am not going to offer legal advice on the basis of reading a translation of a Thai Law, in fact I think that would be criminal.

S

Actually the interpretation issue is no different in the UK and those Laws are written in English, so no possibly inaccurate translation to worry about. There is a very known English legal saying which the Brits will know and that's " it's down to the Judge on the day", and that verdict becomes case law and is more down to that Judge's interpretation of the Law than some say the spirit of what Parliament intended.

In anything that you are not an expert in you should take the best expert advise, whether it be legal or financial, or anything. Unfortunately reading a Law, whether the original text is your mother tongue or not does not an expert make you.

SDM (aka SMD? 555)

Dear Khun Jean

As the folks your side of the pond like to say, I'll take your comments " under advisement" but

I think I will leave the lawyering to the lawyers. Also, in the interests of getting our facts right I do not have a 90 year package I was merely explaining that on these schemes one is not expected to purchase a new lease at each 30 year point as had been intimated.

SDM

PS, Out of interest and assuming you have a home in Thailand since you seem to be so sure of your facts can I ask what type of title your property is on?

Dear Khun Jean

To get a few things straight, I am an agent. It is my job to visit properties and prepare the best details that I can and offer these to buyers that wish to see them, taking them if they wish. I am able to make recommendations, but that is all.

It is not my job to advise on the legalities of buying because I am not a qualified lawyer, either in the UK or Thailand. This is exactly why the first thing I advise any buyer to do is to consult with a lawyer and get the facts for themselves. It is all very well to read the English translation of a Thai Law but as the case with many laws it is the interpretation that it important and that's assuming the translation is accurate. I'm sure that many people make comments with the best of intentions but unless they are experts or have actually experienced the item under discussion it can only cause confusion.

If you do not trust brokers, lawyers, agents or developers then I can understand why you (assuming) haven't bought a home here, which is a shame because it is a lovely place to live, even if you do take the worst case view that you may need to return home after 30 years. For many people there is no choice to return home at 70/80 years of age anyway and that has more to do medical insurance, but that's another story.

SDM

Afternoon

To reiterate one point I made if you acquire property on 30+30+30 leases this is a package deal. There should be no need to re-negotiate and pay for a new lease for each period, but that is exactly why a lawyer must be used to look out for your interests.

I hope that this is not in breach of Forum rules, I have already had one warning, but I would like to recommend anyone who is interested to have a well researched insight into property matters in Thailand to buy a book called " Buying Property in Thailand" by Rodney Waller. It is 542 pages of everything you wanted to know about every aspect of buying property, land etc in Thailand.

There is an element of risk with most things in life but everyday I deal with many preople, mainly non-Thais, who want to buy here or have lived here for many years quite happily and want to upgrade to a bigger place. So I would advise anyone who wants to live here to do their own independent research and make an informed decision.

Regards

Stephen

PS In case anyone was wondering I'm not a " bald", although I don't really have much hair. I started my career in London's West End some 25 years ago and have held senior positions with some of the UK's biggest estate agency companies and in fact still own an agency in NW London in addition to my Phuket company. I am used to working within the highly regulated UK sector with Laws such as the Property Misdescriptions Act and still work within those guidelines, even here. Some of us are reliable and trust worthy !

Thaiexpat21

Thank you very much, I'll get one of my Thai staff to call them.

Thanks again.

Stephen

Thanks digitalchromakey, that's all I needed to know.

Regards

Stephen

Hi Guys

My current work permit will expire shortly and my lawyer arranged them all as a package deal last year. But now I will arrange the new one directly, as I do with my visa.

Ubonjo, thank you very much for that I imagined it would be this kind of figure.

Does anyone know where or have a number for the Labour Department in Phuket.

Regards

Stephen

I am the employer and it is for me.

For anyone who has done this I really would like to know where the Labour Department is and how much you paid for the permit directly without going via a lawyer or accountant.

Regards

SDM

Does anyone know where the Labour Department is in Phuket and cost of a work permit. Last time around I used my lawyer but now they are talking about crazy charges so no want to try and do direct.

Regards

Stephen

@Khun Jean

EXACTLY!!

I've been thinking about this.

I was just getting a bit more comfortable about the possibility that the second 30-year lease might actually happen but then no-one has mentioned how much such a renewal might cost!

It's a package deal, you are buying all three leases at the outset. There will government fees for the issue of each lease, but these can all be paid at the outset, ie the fees for the 2nd and 3rd terms can be prepaid.

Stephen

Davejones

I agree with what you say apart from this

"You say it's good for everyone, but is it? Many Thais might see it as land being taken out of circulation for 90 years instead of 30. "

The only Thais who see it this way are Thais who do not own the land that is being put into foreign hands and this being the case it really is none of their business. If the rightful owner of the land wants to lease his land and property then it is up to him and no one else. In my opinion it is neither good nor "not good" (doesn't really sound right, but you know what I mean) for a Thai who does not own the land in question and has no rights over the land, unless they wish to own the land, and then it is up to them to buy the land if the seller wishes to sell to them. I am sure that the Thai granting a lease feels it extremely good for him !

Regards

Stephen

Hi Alfiecon

" Can't see it mentioned anywhere that only the 30 year lease goes on the chanot !

If it went to court then surely the 2 thirty year options would be deemed to be circumventing the law as 90 year year leases are not legal, because that is basicly what is happening !

Would it not be the case that if the landlord sold the land before the 30 year lease expired then the 2 thirty year opions would be null and void as they were taken out with the original owner and not the new owner."

This is correct because only a 30 year lease has been issued. There is only a contractural promise between the Lessor and Lessee that another 30 year lease will be issued in 30 years time and again in 60 years time. As far as I knows, there is no mention in Thai Law that prohibits a new 30 year lease being issued to the same party after their previous lease has expired. They are separate legal documents.

The lessee must oblige the lessor in the lease to pass on his contractural responsibilities if he should sell the land on. I even heard of one bright lawyer that drew up a lease that required lessor get the lessees consent before the lessor could sell on the land. A matter for the lawyers.

Whether this is circumnavigating the Law or not is a matter for the Courts if one of these arrangements is ever challenged. Really it's what we in the West call a legal loophole but would seem to be good for everyone. For the Thai economy bringing in millions of other countries currencies, for the land owner and for the tenant. Everyone would seem to be happy so perhaps this is why no action has ever ( I believe) been attempted.

Regards

Stephen

PS I believe that a smaller version of the original Space Hopper was released some years ago. But it couldn't compete with iPads etc so was a big rubbery deflated flop.

Hi Tapster

I will try to answer these but for the technical questions I must recommend you speak to a Lawyer when you are next here, perhaps just for a consultation and happy to recommend one. I am not a lawyer and try not to advise on points of Law unless I have previous experience on those points. In fact, and not referring to you, I always recommend to buyers to at least consult with a lawyer before getting serious about buying. Just to sit down for a consultation for a few thousand baht so they can get an expert opinion on what they can really do and what the costs are likely to be. I see so many people who don’t, do everything themselves albeit based upon well meaning advice, and live to regret it.

Anyway, you say ;

“So, instead of truly buying the house, the foreigner is essentially leasing the land (and therefore essentially leasing the house) for 30 years with the distant, but by no means certain possibility of leasing again for another thirty years after that”

”

In the situation you describe you are buying the house, to do with as you wish, but you are not buying the land on which the house sits, otherwise correct, although the 30, 30, 30 arrangement has never been challenged so no one can say either way what the result would be. You seem to intimate that in 30 years you would have to negotiate a new 30 year lease and again 30 years after. Although there would be new leases the framework and agreement to do this would be all signed and agreed at the very outset. SDM

“Thus, I'm suggesting that, 'The so-called "sale price" and all the taxes, conveyancing fees, etc. associated with the purchase of such a property (as in 4, above) are in fact the cost of a 30-year lease on that property and no more'....that there is in fact, no 'buying' involved.”

Well 30 for sure and promises of another 60, but I would agree with that although technically no different to buying a London flat with a 99 year lease. SDM

“ If you own a house on this '30-year lease' and you want to sell it after ten years, are you selling only a 20-year lease or will the owner of the land start another 30-year lease with the new owner? “

If the lease is not transferable you may not be able to sell it on so make sure it is. Unless the Lessor (Land Owner) has signed an agreement saying he will issue a new 30 years lease (with the additional 30 & 30) to a new lessee that you wish to transfer the lease to then he is not obliged to do so, but that’s not to say he will not. I am sure he will for a price. But essentially correct, assuming the lease can be transferred with the further 30 & 30, if you have had the lease for 20 years then you would be transferring a 10 year lease plus two further leases of 30 & 30. But this is exactly why buyers must have good legal representation so they are safeguarded. SDM

“There seems to be a form of co-ownership. If a couple could co-own a property would this not allow the surviving spouse to continue with the lease? Does anyone know anything about this?”

A legal issue really but you would deal with it in the lease, i.e. you would have specified within the lease that if one party died then the remaining party would continue with the same rights of both. Another one for your lawyer to deal with at the outset. SDM

“P.S. I had a Space Hopper!”

Those were the days ! SDM

I've seen a lot of this gambling on property prices. There are just too many variables involved, especially with the UK market which bounces up and down like a Space Hopper anyway.

In the good times I've lost count of how many people, said to me " how much higher can prices prices go, they must stop at some point". My answer is why must they stop, they will continue for as long as buyers feed them. Off topic I know but I was once looking at an old Edwardian house for a dealer client, he wanted me to just give it a quick look to make sure it wasn't falling down. I pulled up some carpets to check for dry rot, woodworm etc. At the time it was common for carpet fitters to put newspaper under the carpet. This was in the late 80's so boom time and I found the front page of one of the Dailys, Daily Mirror I think dated 1965. The headline read something like "Average UK house price now £2600 - CAN IT GO ANY HIGHER" I was so sorry I never kept the page !

SDM