Dragonman
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Posts posted by Dragonman
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Firstly thanks to everyone for messages and PM's concerning my father's death. As an up date the Visa was issued in 2 working days and my wife arrived the day before the funeral. However as not to be awarded top marks, the lady
who phoned my wife from the Embassy spoke to her in a very demeaning fashion." Where have you been, this is the second time I've had to phone you in the last 15 minutes as there was no answer the first time." My answer "getting my breakfast, you silly cow". -
Good to see you back Dragonman. I agree it can be for whatever timescale, but I'm talking about the maximum term. If it is for the life of a natural person it is for life however long this may be, if it is for the life of a juristic person it will be limited to 30 years.
Thanks, Nadia 2. I agree that the Code specifies life, but am still convinced that the Leasehold Acts will have the final say in restricting foreigners to 30 years. Recently Judges have been feeling more confident in ignoring "alien" rights under the former Constitution. I see little reason why this will change.
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A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.
It could be helpful to protect against relatives if the usufruct is confirmed in a will
I don't think Nadia would agree with that point, "it would be easily voided." It has never happen with a usufruct and were not aware of one case on a 30 year lease, it was reversed.
However Nadia has pointed out, how he would argue if he represented the wife. At the end of the day, it is a contract with benefit to the wife. As well, if the wife has signed a separate agreement stating she understood what she was doing and why she was doing with no legal recourse. You then would certainly be better off with a usufruct than just having the land in her name with knowing you will get zero from the land.
If it was easy voidable, the land officer would never made it so hard to obtain the usufruct in the first place!
The bottom line, you have the right to decide who will be on the land as you have the right to manage the land. Thats the law.
What rights would she have on the land - if any?Owning the land with a servitude to you which allows you to decide who will be on the land and house.
www.sunbeltasiagroup.com
The undue influence argument in my previous post is correct and could be ground for will contest by the Thai spouse. Historically undue influence between spouses goes all the way back to Roman law. Mobi would in a divorce have to, say, disprove undue influence. If the usufruct (or lease) is a gift or for a token amount Mobi will not have a chance.
Like said in my previous post, a usufruct 'for free' is valid if it is given out of a moral duty to protect a surviving foreign spouse (this will not be seen as a gift), should the Thai spouse pass away.
NB the usufruct is for life and not limited to 30-years as some suggest (Dragonman), it is only limited to 30-years if the usufructuary is for the life of a juristic person.
Where does this final paragraph come from? Usufructs are based on whatever timescale you detail in "the usufruct". I agree with the undue influence argument, but are you saying usufructs can only be for life. If so, not true, and since you have quoted Roman Law, check on this. The law is different with regard to lifetime and non lifetime usufructs.
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Steve- my point to Dragonman was that if, for example my wife had a home loan (without my backing) and she defaulted, it appeared he was saying that the banks would come after all our joint assets to get their money back - seems unfair to me - since I don't have a stake in the property by law, why should I lose out? The second point/question was if the Land Registry can force a POST-nuptial - Dragonman was suggesting that the waiver is effectively a post-nup - then would a similar post-nup drawn up by my lawyer deny my wife any part of 'my' condo in Thailand in a divorce?
My guess is they can only come after you in the event you jointly signed the mortgage; otherwise her property and therefore.....her problem. However, in general matrimonial property law means that all debts and assets are shared during the course of the marriage; therefore I can see that theoretically if you did not do the paperwork correctly, that they could come after both husband and wife. Now in many cases with the type of women many foreign men marry, they may end up having to act as a guarantor as well on paper; so it is an immediate SOOL situation.
In the case of signing specific exclusion to matrimonial property for the property transaction in its entirety, perhaps any potential liability could be avoided; I am not sure that you can sign away this responsibility if the transaction was post marriage - interesting - might have to ask one the 'useless inept hopeless Thai men' that younghusband alluded to in another thread, as despite being so useless strangely I find Thai men to particularly helpful most of the time.
If you have a pre nup on the condo, then no reason why you wouldn't keep it; otherwise becomes matrimonial property if acquired during the course of the relationship and therefore subject to equal shares.
Didn't study matrimonial law, so the extent of my understanding is not that great; I am curious about the issue of avoiding responsibility for the debt of the house though; my guess is you can contract it away but would require specific documentation from the creditor (bank) that the equivalent of the typical Matrimonial Property laws did not apply. Otherwise, they could chase you up as it would be in their eyes joint debt.
Many points here are interesting. With regards to to property being her's and hence the debts incurred thereon I have been involved in 3 such cases ( won 2 lost 1
), not in Thailand of course. Principle I argued. Income from the house and to the contra, debts, are community property! My scenario, specifially personal:- I, say, paid 300,000 pounds into a pension plan prior to marriage. Hence speculatively my monthly pension is outside community property, same as the house and land in Thailand. All income I receive from this pension is now also outside community property, and also anything bought from this income. Hence everything in my wife's home, and also my car, is outside community property. However my wife earns 40,000 baht a month and when she buys anything it is community property. On 2 occasions Judge saw my point. If income and debt within the marriage is "ring fenced" the scenarios are endless. So only the asset and not income and debt was established as community assets. If the loan was used to pay off gambling debts different case.
thaigene. With regard to the "post nuptial", the Land Office requirement is by Statute ( Constitutional Court) and hence they can take it out of the rights of us mere mortals. I believe the over-riding of one law with another is ill advised, but the Judges advising the Constitutional Court thought differently.
Don't let me start on recent developments regarding strange Judge's decisions, I haven't got the time. dsfbrit. Modifying pre nup is establishing a post nup it would seem in Thai Law. Interesting if any lawyer feels this can now be done in Thailand.
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1) It is possible to have a foriegn company registered in Thailand. It is expensive to do and comes with many restrictions
I was wondering what the situation is when say you set up a company in Thailand as an extension of your UK company. For example, the same way financial companies in the UK have call centre/back office staff in India
This could be a good source of employment for Thai Nationals - and reduce operating costs for UK companies (also, may let me stay more than a couple of months a year!!)
I'm looking to prepare a business case document - and any 'show stoppers' would be welcome as it will save me a lot of typing
I understand from my legal documents that you have to register with Department of Foreign Business. Lots of additional forms to fill out. Lawyer essential! India has very friendly Company Law, unless you are Walmart.
Retailers not wanted! -
If you dont have any kids, your wife should have a will that says the house is a marriage asset and it then goes to you. Since you are the executor of the will you have the power to sell it. From there you ahve 90 days to sell the property. IF you have a kid it is much easier and it goes to the kid..
A few amendments to this post. Doesn't need to be classified marriage asset. You are able to inherit personal property as Statutory Heir. It is up to the Judge if you are declared executor. There is no guarantee under Thai Law. You have minimum 180 days but up to 1 year by practice, subject to approval by Minister of Interior. In theory you may never have to sell, but up to Minister.
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all borrowing is " community debt". It all would not be easier to prove breach of Land Code.
I floated a similar question a while back and got a similar answer.
But the one thing I don't get about your argument Dragonman is that if 'all borrowing is community debt' then that would preclude my wife or yours from getting a loan of any kind from anyone including the banks for a home purchase. If it's community debt that must mean I owe it along with my wife..so then the asset becomes a matrimonial communal asset right?
She is not buying it with 'her own money' is she? She is borrowing it with the bank's money..However I would guess that a court would never side with a foreigner anyway..
Any debt is shared 50-50, but if she has no money it's obviously going to be all yours.
The reason it does not become a matrimonial communal asset is that you sign what is strictly a post-nuptial agreement at the Land office, which in effect, whilst you may be liable for the debt, you never get your hands on the asset. skippybangkok. I presume an Agreement was signed at the Land Office to say that it's all hers.
There have been cases however of the foreigner being able to prove funds of his were used to build the property, hence the value of the building will come within community property laws.
It is far safer however to just register the building as yours before any divorce case.
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I have not seen this discussed anywhere. Is there a problem with buying property in wife's name amd me loaning her the money with the property as collateral (a mortgage),then leasing the property from her for 30 years at a nominal rate. The mortgage could have all kinds of provisions that would protect you if the marriage didn't work out. For instance, baloon payment at the end of lease or baloon payment triggered by your cancellation of lease. In this way you could force a sale if you wanted out.
I am more concerned about the inlaws than the wife. If something happened to her I could see the inlaws being a problem. Anybody see a problem with this arangement? Obviously enforcement of the mortgage would take time and trouble but I am looking to protect a fairly substantial investment.
Problems! You sign a form saying money is solely your wife's. You then have to give the same Land Office a mortgage contract saying "well no, I actually loaned her the money". You then have to provide same Land Office a lease saying " although the money is her's via a loan agreement, she is kindly letting me live there rent free for 30 years, and I am controlling when she can sell". All this together with the fact that lending your wife money is the same as lending yourself money under Thai Law, as all borrowing is " community debt". It all would not be easier to prove breach of Land Code.
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I would be most grateful for comments as soon as possible.
My father died suddenly a few hours ago and my wife's "indefinite period to remain" visa is past the 2 years limit ( been living here permanently more than 3 years). Anyone can advise how quickly UK Embassy can issue visa, what info required, and what are costs involved?
Thanks in advance.
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OK..I will have to answer questions about the house's value for tax purposes.I'm stil a little confused here. If the father gifts the land to his daughter ( which the house already stands on) does that cover transfer of ownership of house and land together?
Yes, as long as the building has not been registered separately by you, or there is not a superficies( permission to build) on the land.
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I went through this too. Was in Sing recently (just pre coup) and spoke to the Bangkok Bank mortgage officer there. The minimum purchase price had climbed to 12 million and you still had to come up with around half of that. Then there were lots of other costs tacked on like a 5,000 Sing dollar arrangment fee and you had to pay back in 10 years or less.
I figured out the minimum repayment at over 100,000 baht per month.
The loans officer said the whole thing might collapse too..as things were "unstable" - not sure what was meant by that...might have been politics or might have meant BOT getting really frigid toward foreigners.
By the way Dragon Man..not sure the rules changed..think it was always the case that foreigners didn't have access to thai-baht loans (possbile excception for those with PR status).
I can confirm what Casanundra says about the higher rate for guaranteeing a Thai wife's mortgage..Kasikorn just told me the same.
The Condominium Amendment Act allowed for foreigners who work in Thailand to have wages earned in Thailand, and loans from Thai Financial Institutions , paid into a non-resident baht accounts. In fact it was BoT who initiated this. It is, I believe, the banks themselves who are wary of loans to foreigners on commercial grounds, not monetary policy. They are consistently chased by BoT over the amount of "write offs", and now have to get specific permission for a total loan write off.
Also you may be aware, Thailand does not have any "Right of Sale" by the bank for non payments of mortgages. They must go through the Court System which can take upward of 10 years to gain possession of the property.
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Posts 16 & 17 say mostly everything. Clause 3, Section 3 of the Ministerial Regulation establishing the Commercial Registration Dept allows the Registrar to prescribe rules by law. He has done so ( Reg. No. 102 B.E.2549). Hence the new rules.
Do you have a link to the text, please?
Sorry, if you require specific Statutes these may be acquired from bookshops, or you may pay a lawyer to obtain. I purely point people in the right direction to take it up with their lawyer. My take on the Forum is to do this "pro bono". When specific requests are made for justification of literature this is of a commercial nature. I am retired, but there are many lawyers out here trying to make a living from their 4 years in Uni. ( also many, sad to say, didn't learn much in their 4 years.
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Posts 16 & 17 say mostly everything. Clause 3, Section 3 of the Ministerial Regulation establishing the Commercial Registration Dept allows the Registrar to prescribe rules by law. He has done so ( Reg. No. 102 B.E.2549). Hence the new rules.
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Hello all,
First time posting but long time reader....I have a question about transfering the ownership of some land, and a house we recently built on it, to my wifes name from her fathers name. My wife and I were married three years ago and live in the U.S. My wifes father had promised her a parcel of land to build a house on..which we did this year ( just outside pimai) He now wants to transfer the ownership of said property officially to my wife. Will I run in to any problems? How do we go about explaining where the money for the house came from ( her father is just a small time rice farmer)
Any comments or suggestions would be great...thanks
There should be no problems. They will probably still require you to sign the form regarding it not being community property. If not, or perhaps you could consider this anyway, put the land in your wife's name and the house in your name, or joint names. No queries then as to where money came from. Also it then comes within community property laws.
I think I would keep it in my wifes name. Do you think I ( as her husband) will have to sign any forms..or can the whole transaction be done between father and daughter?
According to Thai Law you need to sign. However a recent poster said that the Land Office in his area assured him it was OK if it was mother/father. Not true, but then Land Offices frequently get the law wrong.
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Hello all,
First time posting but long time reader....I have a question about transfering the ownership of some land, and a house we recently built on it, to my wifes name from her fathers name. My wife and I were married three years ago and live in the U.S. My wifes father had promised her a parcel of land to build a house on..which we did this year ( just outside pimai) He now wants to transfer the ownership of said property officially to my wife. Will I run in to any problems? How do we go about explaining where the money for the house came from ( her father is just a small time rice farmer)
Any comments or suggestions would be great...thanks
There should be no problems. They will probably still require you to sign the form regarding it not being community property. If not, or perhaps you could consider this anyway, put the land in your wife's name and the house in your name, or joint names. No queries then as to where money came from. Also it then comes within community property laws.
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My (admittedly) limited understanding is that money used by a foreigner to buy a property in Thailand has to be seen to be brought in from overseas, so in that sense it's not possible to get a mortgage from a Thailand bank.
A way around this has been developed by Bangkok Bank in that they allow farang to apply for mortgages from their one Singapore branch - you are borrowing the cash, but it is coming into thailand from another country, so circumvents the rules.
But I've not heard of anyone actually getting one of these loans yet. My understanding is that take up is minimal to date.
Other wiser people will know more.
The rules were changed to allow loans in Thailand to be paid into non resident baht accounts. They would then be allowable by Land Office. However various people have posted recently that banks have ceased giving reasonable loans, under BoT instructions. Despite my research I cannot find any circular to this effect, and either it is "word of mouth' or the banks are passing the buck, as normal.
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Some legal comments regarding points made.
Water may be cut off, although if the person is not living there doesn't matter much. Electricity cut off and restriction of rights of access are not strictly legal, but some Condos do anyway.
The giving of 2,000 baht back to residents from maintenance and sinking fund is dubious in relation to Juristic Person Law 1994.
It is correct that litigation may take place but expensive ( more than maintenance fees).
Registration cannot take place normally until back fees are paid. People should ensure there are no back fees when contract completed, or you are liable.
Late payment charges of 10% per month compounded would likely be overturned in Court as per Contracts Law. But reasonable scare tactic, if owner not aware.
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There is no Trust Law in Thailand.
So the answer is no.
I kind of suspected that since I have never seen it mentioned. Too bad, it would solve a lot of troubles for farangs.
Trust Law did not originally figure in Civil Code countries such as Thailand. It is a Common Law concept. Usufruct, whilst not really the same, was used instead. However many countries have now established Trusts as part of their Civil Code, and in fact some years ago an expert was well received by the Government on his proposals for "part trusts". However, as usual in Thailand, things move slowly and Governments change.
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The position on death of the spouse is as follows:-
If there is a correctly drafted Will, with you as Statutory Heir, the property will become yours, (subject to Ministry of Interior approval) but you have to sell or transfer within 1 year.
dsfbrit, I traded messages with Dragonman a few months ago on the same subject. For me, Dragonman's opinions are the best way to go. Even if the law says something different from his opinion, which it does, in practice his advice is the most safest, and we don't want to end up in our 70's finding bureacrates deciding to interpret their laws differently from the way written because they don't think the "spirit of the law" wanted farangs to inherit land. However, since I spent money on a legal opinion on this subject, you should know how the Thai law reads:
Land Code section 93 states that an alien can inherit land to the extent that the total area including the land on which the alien has already been acquired (or has not yet been acquired) shall not exceed that specified in section 87 of the Land Code, i.e. not more than 1 rai for residential purpose. Hence, in case you survive your spouse, the entire ownership of the land would belong to you without your need to sell it within one year.
After reading up on this and talking to many other people who all agreed with Dragonman (as I do), I went back to my attorney and questioned the advice. She then called the Land Department in Bangkok and talked to the Competent Authority, which is the person at government agencies that one should talk to about these subjects. The Competent Authority agreed with my attorney that I could inherit up to one rai of land for residential purposes, as per above.
Still, as I have said above, Dragonman's advice is the best here (better be safe than sorry) and putting a 30 year lease on the land would allow us to sleep better at night as laws could change and interpretations do always change. I just wanted you to be aware what the actual law states.
Yes the attorney and Land Department are correct, "could" being the operative word. The Minister of Interior, whoever he will be in the future, has the legislative right to allow you to keep the land. However, to date, this to my knowledge has never happened. A year has been given as per legal advice received by the Ministry, and also subsequently entered into the Condominium Act. My belief is that lawyers should advise their clients on practicalities, not simply quote the Civil & Commercial Code, or the Land Code. As long as people are advised of current problems at least they can establish Wills or Contracts to get around them.
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The position on death of the spouse is as follows:-
If there is a correctly drafted Will, with you as Statutory Heir, the property will become yours, (subject to Ministry of Interior approval) but you have to sell or transfer within 1 year. Obviously as you are the temporary owner you have to cancel the lease. The way around this is for you to retain the lease, so that you can live there for up to 30 years, and put the ownership into "executorship" ( namely you) until you have sold or transfered the property. Thus the property will be sold with sitting tenant. Obviously which one is best depends if you have someone trustworthy to transfer the property to, and if you really want to live there.
ando. The Leasehold Amendment Act 1999 allows for sale or (by inference) inheritance, if the terms are included in the Leasehold Agreement. If there is no such clause the lease ceases on death of lessee(not lessor) and may not be sold or sub let.
Thanks for this feedback Dragonman.
So if in this scenario I eventually decided to put the land in the wifes family name and I guess do a lease for 30 years ? , but this time with the family - then would the family have the right to modify the land ie: build a small 'home' at the bottom of the garden and move in!
A silly scenario perhaps, but I am trying to understand the 'power' of the lease and my control over what goes on in - for what is to me - my home.
I think - to be honest - this is my real concern about the lease thing - the control I have over my personal space. After all if I rent a place and do not like what is going on in the immediate vicinity - I can move easily - same with full ownership(even if the company ownership - is a bit dodgy) - but with a lease - not so simple???
Thanks again for your time and help
You have total control over privacy! Depending on the terms of the lease you may modify reasonably the property, but of course you should give access for inspection, with reasonable notice. Again a way around any problems of privacy is for your Company to sell the land to your wife/family and for you to have a separate contract for the purchase of the building in your name. ( you will of course need your lawyer to set up these sales carefully) This also gets around any problems regarding having to sell the house within 1 year. You can live in it until the 30 year lease is up, and at the end of the lease will be partially compensated for the building's value, if evicted.
sinam. As the "executor", hopefully, as there is no guarantee of this in Thai Courts where "estate managers" are appointed by Court agreement only, you will be responsible for sorting out the mortgage. You will not be able to legally own the property, but I have heard of "sorting out" taking many years.
If you get my gist. -
the same as lending to himself under Thai Law, as you are responsible for her debts.
Is this right?
If my wife takes out a mortgage or car loan or any other type of loan without my knowledge, am I still responsible for her debts?
Afraid so!
Only if the debts have been incurred after marriage. Look at it on the bright side, she's responsible for your debts as well. -
Few marriages in eh West last a lifetime. There is no reasont o believe that yours will be any different. Most marriages end with a lot of infighting. If this is the case, you will lose what you have put into it.
It is their problem, not yours.
A great post - just in time!
Indeed. Having conversation with my TGF - she lives in the house and I give her 15,000 baht per month. Just come back and she started talking about new car (already have new bike) - then said what about rent shop for her and her sister - I thought 'here we go' then now it is for house in the home town for family so she could be there!
Means the car and the business will be no good - now I think - continue to give money and then as you say 'their problem!
Sadly I agree with both of you to a point. I would tongue-in-cheek say though that women all around the World have an inbuilt ability - its in their genes - to get their own way in the end, but I wish you luck with your approach.
A more serious comment I would add is that you can lose a wife in another way and that is of course through death. Not a nice subject I know, but its one of the concerns I have about this whole land/lease issue.
I think all posters here agree that a farang would probably not want to live with/near the family
after 'winning' a legal case. I suspect being involved with the family in a 'legal sense' would also not not appeal to most farang if their wife dies.
However, if a wife dies in 20 years time - who will take over the lease if it isn't the family - I know there's a Will - but...!
As I have posted elsewhere, I am considering options relating to the company / land ownership thing and one of those options is this lease approach favoured by some - including Dragonman, who has offered good advice and a solid argument about leases - both in this thread and elsewhere.
I have to say at this stage it feels a bit like the 'frying pan into the fire' and perhaps when I am forced to make this decision - selling and renting is the safest bet.
Dragonman, what is the situation on the 'death' scenario, I believe the farang gets the land for a period (1 year), then has time to dispose of everything or find someone to take over the lease.
The position on death of the spouse is as follows:-
If there is a correctly drafted Will, with you as Statutory Heir, the property will become yours, (subject to Ministry of Interior approval) but you have to sell or transfer within 1 year. Obviously as you are the temporary owner you have to cancel the lease. The way around this is for you to retain the lease, so that you can live there for up to 30 years, and put the ownership into "executorship" ( namely you) until you have sold or transfered the property. Thus the property will be sold with sitting tenant. Obviously which one is best depends if you have someone trustworthy to transfer the property to, and if you really want to live there.
ando. The Leasehold Amendment Act 1999 allows for sale or (by inference) inheritance, if the terms are included in the Leasehold Agreement. If there is no such clause the lease ceases on death of lessee(not lessor) and may not be sold or sub let.
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Another way is to lend your wife the money to buy the land with a registered mortgage held over it .Either way you will be fairly secure.
There is no security in this. For a start you have to confirm in writing the money is not yours, but your wife's. A husband lending money to his wife is the same as lending to himself under Thai Law, as you are responsible for her debts. If you are seen to be acquiring a Real Property right and also living in the building you are in breach of the Land Code. This method only suggested by lawyers of dubious ability.
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A couple of legal pointers, but of course as others have said a lawyer is best way forward. Unless he is open to negotiations Juvenile and Family Court seem best process.
Thailand has no "reciprocity agreements" on child support and hence suggestions regarding his Embassy, etc. are out. Besides they only take claims from citizens.
Does she definitely want a divorce? If so there should not be too much problem on the grounds "he has taken another woman as his wife". Adultery is not grounds, loss of face due to the previous grounds is.
The settlement issued by the Judge takes into account past maintenance, which is required by law.
Recent Case Law now means that due to many people transferring assets into new girl friend's name, she also can be sued for maintenance!
who phoned my wife from the Embassy spoke to her in a very demeaning fashion." Where have you been, this is the second time I've had to phone you in the last 15 minutes as there was no answer the first time." My answer "getting my breakfast, you silly cow". 
Need A Sample 30x30 Land Lease Doc
in Real Estate, Housing, House and Land Ownership
Posted
Contract Law, particularly in Thailand under the Civil Code, is generally about "fairness of contract". If you have a contract option which provides for a payment for the second 30 years you have a good chance. If it is a sham and you want a 30 year option free, where no rent is to be paid ( this is generally the case with a lease with the missus), the Judge would say "what do you want recompense for, you both signed a contract that gave unfair advantage to one party".