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I got divorced yesterday, and the land transferred to my company, but the usufruct was removed.  the lawyer said they insisted on it, at hua hin land office........

one level of security i will miss........  just hope this company is all good 

Fingers crossed :)

A lawyer has told me, that if the land is sold to a company the usufruct would not be transferred, but i was not so sure. 

Surely the usufruct is there to give security and peace of mind to the usufructee, but by simply removing the usufruct if the land is sold on to a company, seems to eradicate any of that security that the usufruct was meant to offer.

Hi Guys - was hoping someone could help.

My wife and i divorce soon.  I am going to give her some money, and we will transfer the land we have into company ownership, of which i am the director.  

I already have a usufruct on the land, and would like this to remain intact if possible. 

When we go to the land office, and transfer the land from my wife's name to the company name, and both my wife and i agree that the usufruct can remain, will the land office allow this?

It will be at Hua Hin Land Office, if that makes a difference

On 14/06/2017 at 9:30 PM, Khun Jean said:

The 39% is to escape scrutiny when land title is transferred to the company.

After the transfer you can then increase your share to 49%.

It is just a little extra step that makes this more smooth.

 

I am not in the same situation but if i was, i would not use the 'company' loophole. I would just stick to a lease/usufruct.

Having 49% in a company probably also makes you worth more dead then alive. 

 

the way the accountant says they do it down here, is to have three thais in the company, and no farangs.  the land is transferred to the company, and then the shareholders are adjusted afterwards, moving the farang back into the company.  What is in place to stop the farang worrying he is investing millions into a company that he is not even a shareholder of, i am not sure yet.  But i will ask him next week.

I guess with usufruct vs company - the land automatically would go to the land owner if something was to happen to me.  Whereas, with a company, the company shares could be left to my heirs, so it would only be my heirs knocking me off that i would have to worry about :)

Your information is great Kuhn Jean - thanks plenty mate

16 hours ago, Khun Jean said:

Yes accountants always assure as real estate brokers will always say that now is the best time to buy.

Self interest is always the constant factor.

 

As they say, results in the past will not be guaranteed  in the future.

A lot has changed with company ownership of land and houses. A lot more scrutiny is done now as 2-3 years ago.

If you feel fine owning 49% of a business and use nominees (which is illegal) for the other 51% then at least you know going in what the risks are.

If the company is only owning land and house and the business is to rent that out then it is now even advised by lawyers to settle for 39% as that will not trigger any alarm bells with the authorities.

The number of shareholders have been changed to only three so it should be a lot easier now, before it was seven. If you can get two Thai people that are trustworthy then that would be better then using the nominees provided by a lawyer/accountant firm. The risk that a lawyer/accountant firm is checked and found to be using nominees many times will result in more scrutiny on all the companies they helped to incorporate.

Hua-Hin, Pattaya, Phuket are the hotspots and companies are being investigated.

 

I don't know your wife and family but is the risk really bigger that you are getting killed or is the risk bigger that you get caught using a company with nominees?

 

There is also the option that the land is sold to another Thai individual who gives you a new usufruct. My wife has done that for a friend of ours and it worked out fine. At this very moment she will probably make another usufruct for a foreigner couple as she is in the process of selling some land. If you want i can post here how that went. It is planned on the 3rd of july.

 

Yes, it is quite obvious the accountant would encourage the formation of a company, but my lawyer also said it was the best way for me, and she is not due to get any more work from the company formation if i go that route.

I had never heard of the taking on only 39% share of the company.  Seems like a really good idea and way of keeping off the radar.  The only thing with that though, is i was planning on having three other shareholders, plus myself, so the other three would share 61% of the company, so possibly two of them getting together may equal a greater share and end up in me getting the boot as director......  Although my accountant said he had never heard of this in over ten years of setting up companies for people.

The accountancy firm has already told me that they cannot provide the shareholders, so they are saying exactly what you are saying there Kuhn Jean.

Selling the land to another thai, who then gives me usufruct (or even leave the one in place that exists already?) is a good idea, but again that will leave my paranoid brain thinking about the worth more dead than alive scenario

I am between a rock and a hard place for sure!! I wish i could just stay married, but.................................

42 minutes ago, Khun Jean said:

Your wife would need to make a new usufruct after the divorce, or not cancel it at all. It would then remain.

Starting a company for the sake of securing the land and house is even more difficult and is absolutely not advisable.

If the company already exists then it is different. If you are the director of it then you get into a grey area because then the company will be suspect to use nominees.

If you 'pay off' and she is willing to move ownership to a company then she is probably MORE willing to keep it in her name and let the usufruct remain for the same amount of 'pay off'.

 

 

Thanks Khun Jean (again).....  An accountant here is hua hin assures us that setting up a company will be fine.  They have been in the business for more than 10 years here, and i have owned a company before through these guys, and lived in the house and later sold it, all with no problems in the past.  So fingers crossed it will be fine.

We were actually in the land office today, finding out how much the transfer costs were, to transfer the land and house from my wife to the new company, and the land office lady was saying that i was daft to remove the usufruct, and i should leave the land in my wife's name, as you do above.......

the only thing with this is, if the land is in my ex wife's name, then i will be always looking over my shoulder, as if i was to get hit by a bus etc, the land and house would return to my wife.

I think company ownership is the slightly less risky method.  At least the house would not automatically return to my ex mrs, if something were to happen to me

Ok, so it seems a lease cannot be added to the chanote, if there is a usufruct in place, as khun Jean has stated early on in the thread

So, if the husband (me - the OP) was to divorce, pay off his wife and move ownership of the land and house to a company, would the usufruct be allowed to remain? 

There is no reason that the wife would need to bother having it cancelled, as the land is no longer in her name, so would the usufruct remain, until the husband offered to cancel it? 

Thanks for the information Guys.  As usual the value of an usufruct divides opinions.

HappyLarry - do you agree with Khun Jean that it is not possible to lease the land from your wife, whilst there is a usufruct in place?  It would be a good way to offer an extra layer of protection if it were allowed.......

24 minutes ago, Khun Jean said:

No.

 

I have the Usufruct already Jean - why is it not possible for me to lease the land from my wife? 

Is leasing from a wife not allowed, or is it due to the fact that i have a usufruct in place?

If a husband had a Usufruct on the land his wife owned, but was a little bit worried that one day his wife may be tempted to have him bumped off, could he put a 30 year lease onto the land too, and if the worst was to happen, that lease could be left to someone else in his Will, therefore removing the incentive to be bumped off?

Is this possible at the land office, and would it help to cover a wary husband's ass?

A mate of mine lives in a gated community here in hua hin.  He has to pay 75,000 baht a year (in a one off payment too). Plus his electric and water are charged to him at top rates.

Makes it hard to sell the house if he wants to.  On the chanote there are no public roads adjacent to his land, as the developer owns the roads, so if he were to stop paying, the developer could stop him having access to his land i think.

"collect garbage" - 2 words you dont often see together in Thailand

This looks like a good idea.  Would be good if they could do it in thailand too.  Basically it encourages passengers to speak up if their mini van driver is driving badly.  It encourages passengers to talk with their driver, and it shames drivers into being aware of their actions.  Has had good results in Kenya this report says.  People participating in the project have seen a 25% drop in accidents.

http://www.bbc.com/news/av/magazine-40096722/the-magic-words-that-reduce-road-deaths

Thanks for your responses MikeyIdea - much appreciated. 

Does anyone else have any experience with a situation like this? 

Will I be able to get a divorce agreement drawn up like this, and the amphur will agree to it?  And it will all be enforceable if i had to rely on it further?

48 minutes ago, watcharacters said:

 

I wish you could notify the Siam Lawyers they should change the information  they post on their site about usufructs.   They are a  TVF sponsor.

 

And if you have experience with usufructs, perhaps you'd know if one can have one drawn up  merely by funding the construction of a house?

 

 

my usufruct was drawn up through the offer and payment of tea money. some land offices dont require that i believe. some do. the land owner has to agree to of course.

who funded the house is irrelevant. the usufruct refers to the land, not the house

4 hours ago, Rhys said:

.....dude, run away... faster... the frig door is full of food...   Sound like a set up here... your red flag.

Why you say that Rhys?

If she has to sign the contract at the Amphur on the day of divorce, and it is registered on the divorce agreement, before i pay any money, then surely this is low risk.....

if it is allowed to be registered, then surely it is enforceable.  If it is not allowed, then i will tell my lawyer i am not impressed with her idea, and her fee will be reduced significantly

15 minutes ago, watcharacters said:

 

 

Sorry but you'd need to contact the Siam Lawyers for specifics on that.    I read general  information  written on their website for a usufruct and it was posted there as I wrote above.

 

In my brief reading of it all I found the whole thing fraught with issues.   It may be the best option for a falang in Thailand  interested in helping a Missus buy a place but  it left me far from comfortable.    If I ever considered one it would be with open eyes to the idea of only spending what i can afford to lose;    i.e. walk away from.

No taxes to be paid on a usufruct.  once it is issued, it is written on the chanote, single payment at the land office, and that is it

8 minutes ago, steven100 said:

you really think it's that simple ...  just get the local police to fix it all ....   your dreaming ...  this is alot harder than that .....   '  oh yeah mr policeman, we'll come down and chat and give the money back '

sorry ... but that's just unrealistic ...

it is what happened to us.  after three months going through the courts, we gave up and went to the cop shop.  i told my wife offer them 25%, but she offered them a much lower amount, unbeknown to me

people are scared of the cops remember....... especially dodgy people......

we had a similar problem by the sounds of it.  The wife and i went to the local police station and offered them a cut if they could help.  they were straight on the phone and rounded the guy up, and we were sat opposite him in the police station the next morning.  we ended up getting half of our money back, and paid the police less than 10 % of the money retrieved.  half was better than nothing.  we tried the court route initially but was expensive and slow

Hi Guys, I have been to see a lawyer, and she has suggested this as a viable route for our future divorce. 

She seemed to think that the best way for me would be to make an agreement when we divorce, is that i have to pay my ex-wife XXXX amount every month for say, two years.  In the contract registered at the amphur we would also state that she gave me the right to stay in the house, and that she was transferring all rights of disposal of the land and house over to me,  so i could sell it in say ten years time, and receive all the money from the transaction.  I would also have my current usufruct protecting my right to stay. It would also be written that the house belongs to me. it may also be possible to pre sign power of attorney to me, so that i can sell the property without her being present (but this would only work if she did not remarry and change her surname).

She says that these agreements made at the amphur at time of divorce are 100% enforceable.

What do you guys think?  A decent proposal you think, that could work for both parties?  I am pretty sure my wife will agree, if the money is OK for her.

Part of me is worrying though, as i am sure i read years ago that it states in Thai law that a foreigner cannot have full control over a piece of land, and surely the above solution would give me full control, and so maybe not legal in the eyes of the law

I would really like to stay in the house if i could.

Thanks HappyLarry - your message has helped me a lot. 

I am going to see my own lawyer now and will email you back what she says this afternoon.  Thanks for taking the time to write me such an informative message :)

Hi Guys - our marriage has ran it's course i believe, and my wife and i met a lawyer to discuss options.  These are the 4 options we laid out between us, and i am now trying to think what to do.  My wife has cheated on me and i have proof, plus she is now applying for a visa to visit Europe and be with her new boyfriend.  The lawyer seemed to say that it didn't matter what had gone on before, it was all about now, and moving forward.  No children are involved. I have a usufruct on the land. The land is in her name. I love this house and dont really want to sell.

Here are the options:-

1 – Family court

Let the court decide how the house should be divided up.  The cost is 5% of the house value, and so is expensive and not advisable, said the lawyer.

2 – Lump sum payable by me

I pay my wife an agreed amount.  I can pay every month for 2 years maybe.

When payments start, we set up a Thai company and put land and house into company name.

Land and house build cost about 7 million.  My wife is asking for 4 million pay off.

Can a company be set up where I have all the power?  Could I put my wife’s two children as shareholders (might help as a sweetener)?  Would they be able to cause me problems later?

3 – Sell in one year and share the proceeds 50/50. 

If a buyer for the house cannot be found, then the house goes to auction and selling price may be low.  This also not good for me as it means I have to do the selling as my wife plans on going to Europe to be with her boyfriend. Also the housing market seems slow here in hua hin at present.

4 – Lease the land and house

Lease the land and house from my wife for 30 years. 

Is this a good method?  Is it marked on the chanote and so stops my wife from selling it? Can I sell the house lease in ten years’ time, for example?  Could I rent the house out and receive income like that?

What do you guys think would be the best option? I should be able to scrape together about 3 million if i borrow, 4 million is not possible i think, plus all the extra fees that are involved for transferring the land and house to a company etc.

I am seeing my lawyer soon, but i just wanted to ask for advice on here first..........

On 11/05/2017 at 11:38 AM, Michaelaway said:

Siam Firm Inter Laws Co., Ltd. They have an office on Phetkasem Rd. opposite Market Village. Khun Somsak is their founding lawyer and does work in Hua Hin regularly. Hope this is of some help; good luck. 

Thanks for the info - can you tell me, have you had personal experience with this company Michael mate?

anybody recommend one please?