roath

21 hours ago, BEVUP said:

Hows this one, have mentioned before

Get Usufrut on GF Chanote (now wife) 

Had  Lawyer do 

Under thai Law owner can sell or Mortgage - only need to notify you if their are clauses attatched I guess

Guess what she mortgaged for family & lost the house to the LOANER with me still as Usurfrutee 

In that situation, it seems unlikely that the bank (presuming it was a bank giving the mortgage) would be able to remove you until you died (or you were in substantive  breach of any of the terms).

For that reason it is highly unusual for a bank to take out a mortgage as the property is worth barely anything (in legal terms, it is referred to as the reversionary value). Most legitimate banks won't took a property subject to an usufruct or lease unless the value of the loan reflects the reversionary value (e.g. 10 to 20% of the unencumbered value)

2 hours ago, Tony125 said:

Your information is incorrect, see Roath's post #10  and the links he posted.   A Usufruct gives you some protecttion but if the marriage goes bad  the Usufruct can be voided

 

Marriage and contracts between husband and wife.

 

You could do a usufruct with your Thai wife over a property that is registered as her personal property. It gives some protection in different situations. However, and this is mainly because of the special relationship between husband and wife, matrimonial propertry laws give in section 1469 of the Civil and Commercial Code both spouses the right to void any agreement concluded between them during marriage (without grounds). This also applies to the agreed usufruct.

It's definitely better to have this agreement than not as even if the wife voided the agreement she would effectively have to get a court order to get you or sell the property at which point you could apply for an order yourself to make sure that she doesn't sell and disappear with the profits (in an example where things were really bad) and as mentioned previously, Land Offices tend to be very circumspect in transferring properties subject to a Chanote without you being present (yes you can fake powers of attorney, but the Land Office may not accept it at face value without other specific documentation in support and/or without a lawyer present etc.) so examples of this happening tend to be rare and less and less recent

If you have no agreement then in theory she could kick you out, sell the house and disappear with the proceeds. You can of course get an order from the court to try to prevent this, but considering that you can transfer a property in literally a matter of hours here, you could be kicked out in the morning and the house in different ownership by lunchtime.

Just as a quick note, it is not correct to say that an usufruct is not valid if not registered. It would be a valid document, but would not be effective as it would not bind any third party.

Perhaps that's me being technical, but there is a big different in law and practice between something not being valid and not being effective and it is better not to be making statements that are potentially misleading. 

For example if you lent your friend 5 million baht to buy a house and drew up an agreement between you, that agreement would be valid per se. If you register that loan, then it would become a mortgage and secured against the property which means that the property could not be sold without your permission as the loan is secured against the property. You could not stop the sale of the property (as you are not the owner) but you could make sure that the sale doesn't take place without your being repaid the loan. If you didn't register the mortgage then it is an unsecured loan and perfectly valid but would be unsecured and you would have in this example, no rights to prevent the sale of the property for which the money was lent to purchase or indeed insist that the money from the sale be paid to you unless there was a specific provision in the agreement. you can see that there is a big difference therefore between what is valid and what is effective. 

1 hour ago, scorecard said:

"then generally speaking an Usufruct being registered on the chanote isn't in itself a bar to the freehold property being sold subject to the usufruct."

 

I'm not sure that's correct.

 

Our lawyer checked this very well before my son went ahead with putting the usufruct on the chanote for his property at the CM land titles office.

 

Your comment above prompted me to ask my son some further questions and a few minutes ago he called the family lawyer to check, response:

 

- A usufruct has to be recorded on the back of the chanute to be valid. (In other words writng it at home and keep it in safe etc., at home has no validity whatever).

 

- If there is a usufruct recorded on the chanote then the LTO cannot change the owner details on the chanote, therefore, legally there cannot be a change of ownership/there is no new owner.

 

My son does have a valid will, which bequeaths his land and house, and all his assets, jointly/equally to his three daughters.

 

His wife does not benefit directly from the will. Our lawyer checked that this valis and it is.

 

Why? Son and his wife don't doesn't trust his wife's siblings (both 10 - 15 years older). Both son and his wife feared that if his wife was the beneficiary his wife's older siblings would seriously harass her to sell the property and give them the majority of the proceeds or transfer ownership to her oldest sibling (her brother). And son's wife is quite frightened of her siblings. 

 

Both of her siblings have tried other 'schemes' before, e.g. son bought a second vehicle Honda SUV.

 

Son's BIL turned up at son's house 2 weeks later, took the keys and drove away with his wife following, driving their own car.  Son and his wife demanded they return the SUV, they laughed, son went with family lawyer to CM police regional office. 

 

Twenty four later the SUV was parked outside son's house early morning and the driver ran away. And more...

 

As a general rule a subordinate right (in this case an usufruct) would not (and should not) prevent the disposal of the superior right (the freehold), not least as the sale of the freehold would not affect any rights already granted. 

Certainly, it is very much the case that Land Offices tend to be highly circumspect when they are dealing with Chanotes subject to a usufruct for obvious reasons (i.e. they know that the reality is that the person to whom the usufruct is granted is the true owner of the property regardless of what the chanote says) and that may be the reality (but not necessarily the law)

There may in fact be a provision in the Civil and Commercial code that clearly states that not to be the case, in which case, kindly quote it as of course my understanding may be wrong. 

There may also be a provision in the Usufruct, although I would be surprised as that would arguably be suggestive that the usufruct is a proxy agreement which is illegal under Thai law. Typically again, as a general principle of law, those with subordinate rights can't bind superior rights. Even if there was a provision in the usufruct, that would be a breach of agreement but not necessarily give you the right to void the transaction so problematic legally and practically (IMHPO). 

Equally if the owner of the land died, are you suggesting that the ownership couldn't be changed pursuant to the will or the intestacy provisions of the law? So again, I don't believe that you are correct in that assertion, respectfully. 

On 6/9/2020 at 7:41 AM, scorecard said:

Why are you mentioning immigration office? Surely this is a Thai lands titled office matter?

 

 

I'm hoping the OP has stated clearly to his/her lawyer what they are trying to achieve through putting a usufruct on the land title. 

 

My Thai son put a usufruct on the land title for his house and land. Our lawyer prepared some documents and went with my son to the Chiang Mai land office to seek the LTO officers advice.

 

Ultimately, the document states:

- I can live in the house until I die, at no cost.

- The house/land cannot be sold without my signature to allow a sale.

- When I die it automatically cancels.

 

Our lawyer asked the land officer what would apply if son passed away and the property is bequeathed to:

 

a. Son's wife and/or children.

b. A person not associated with family.

 

Land officer said quickly 'according to the Thai law it makes no difference, the usufruct content is still totally valid'.

 

However, as already mentioned it seems some land officers refuse to accept the whole idea of usufruct, other officers use their own interpretation/extent of what it means. All needs to be checked locally. 

 

 

Unless there is a specific prohibition in the Usufruct (on which I am not sure about the validity in Thai law or practice), then generally speaking an Usufruct being registered on the chanote isn't in itself a bar to the freehold property being sold subject to the usufruct. The best method of ensuring that the freehold isn't sold to someone else is to retain the chanote document in your possession. 

Saying that, Land Offices do tend to be very circumspect in an application to issue a new chanote and/or sell the freehold without the consent of the usufructary. There have been cases (Phuket seemed to have problems in this regard) but tend to be very isolated these days, particularly since computerisation of the database 

In all cases of an usufruct being issued/granted, you should in addition prepare a mutual will with your wife (or the person with whom you have entered into the agreement) as well as a power of attorney to deal with sale of the property. The usufruct will give you protection, but the other document will minimise any potential future difficulties you may encounter

Unless you are able to draft the Usufruct yourself (in Thai and English), and also navigate the local Land Office, then you will in reality need the services of a local lawyer

You can get draft Usufructs online, but really I would only recommend that you do this is you are quite comfortable with the amendment of legal documentation.

There must be consideration for the grant of the Usufruct otherwise it is unlikely that the Land Office will register the instrument (not least as there has to be a value for them to impose a tax).

I drafted my own and did the registration process myself but I am a lawyer by profession and I do speak and read some Thai which makes the process easier. 

If you are married, then the instrument is technically voidable during the currency of the marriage (so if you divorce, it doesn't give you protection necessarily) but it is far better to have even if married than not and of course as others have said if your wife pre-deceases you then you are protected until your death

You should also do mutual wills with your wife and also powers of attorney as part of the documentation to support and protect your rights. You can inherit land under Thai law, but you will need to transfer the land into a Thai name within a period of time

Once you get the Usufruct granted you should make sure that the Chanote is kept in a safe place. If you have any concerns about your wife, you would be advised to keep it someone safe that you can only access. 

As someone else has mentioned, once you get your name on the Chanote, apply for a Yellow Book and a Pink ID card. They are not essential but are useful

I have a friend with a work permit who has just lost his job and wants to sell his car before he returns home. As technically his visa has expired, he is no-mans land as he isn't on any visa category or extension as he is covered by automatic extension to 31st July but the visa agent he went to for advice told him to leave Thailand and come back on a tourist visa (yes, seriously!) to get a RC.

The requirements only used to be for the purchaser to require a RC, so did the rules change? And has anyone had experience of selling a vehicle without a RC just on a power of attorney (as per the OPs enquiry)

10 hours ago, roath said:

You can change where you are registered by filing a TM28 which provides a new 'permanent' address. It doesn't matter if you own the property that you live in or not (it may be an issue if you have a yellow books/pink cards, as in theory you are meant to change your registration with the amphur also, but that's not an immigration issue).

 

Once you have filed a new TM28, and presuming that you've filed the TM30 at that address, then (as I understand), you then treat your local office as your normal office for extensions/90 days/etc. 

 

Obviously, when things get back to normal, you can change back for the following. Whether there will be questions asked about chopping and changing, I don't know and maybe someone else has some experience of that. 

 

If you have been following the discussion with Ubonjoe, there is clearly a question mark at the moment about what the status of visas extended by the covid extension will be, and for that reason, if the OP can extend normally within time, he would be best advised so to do at the present time

 

Sorry I mean TM27 for change of permanent address not TM28

1 hour ago, Blue Muton said:

I went to my local immigration office earlier this week. They were very clear in telling me that annual extensions of stay for retirement or marriage were not included in the amnesty and that I must apply just as I normally would have to.

 

Best to follow earlier advice and check with your local office.

This is the issue at the moment. The infographic issued by immigration clearly refers to all forms of visa types, so for sure, there is an automatic extension of any visa extension until 31st July. The issue (source of confusion) is the effect of that extension. Theoretically, the automatic extension should act as an additional period for all foreigners at the end of which they should be able to renew normally from 31.07.20. However, I appreciate that that's my view (notwithstanding that that view is formed using normative legal interpretive criteria) but there are undoubtedly going to be a lot of arguments at immigration by people saying that they relied on the extension and didn't go to immigration during the lockdown and therefore should be able to extend normally. Immigration should be clarifying the issue on a national scale, and not leaving the interpretation of a national decree down to a bullet point gif

On a technical point, there was a partial amnesty in the sense that those who had originally overstayed (for a short period) before the Corona extension had been issued were permitted to obtain an additional extension once they had paid overstay fees, but the whole process has now been superseded by an automatic extension to 31st July 

1 hour ago, WorriedNoodle said:

Why not? I have done this before (albeit outside of this covirus period) whereby I own my home in Bangkok but went to the IO in a southern province with the required TM30 change of address notification along with support documents from the home owners place I was staying at down south. Then the IO down south let me do my 1 year extension based on retirement. There is absolutely no reason to return to my home for this.

Just to clarify, the TM27 is the form required for changing permanent address. The TM30 is simply the form for notifying that you are staying at an address. Filing a TM30 does  not mean that you have changed address. It is possible that if you inform immigration that this is your new permanent address when filing a TM30, that they will automatically do the TM28 notification for you

2 hours ago, ubonjoe said:

That really means nothing. You are extending the permit to stay you got from the visa you used to get that permit to stay. It does not matter what non immigrant visa category it was.

I agree. The point was that immigration use incorrect terminology on their form and frequently refer to Retirement Visas etc. when of course there are debates constantly online that technically there's no such thing and once visa expired it becomes an extension rather than a visa etc. I was just commenting on lack of clarity from immigration on a number of issues, including of course the current issue about what they mean by the current automatic extension, which as I have mentioned previously IMHPO using the natural meaning of the term (from a legal interpretative perspective) means that the original extension should be capable of further extension without a new visa being required. etc. etc. ????

12 hours ago, pingping said:

The Chumphon airport doesn't open until June the 1st. and there are no direct flights from Surat Thani to Chiangmai until June 1st also I will be quarantined in Chiangmai for 14days if I go before June 1st  I will have to take a bus for aprox. 2.5 hrs from where I am staying to Surat Thani airport. I already have done a 14 day self isolation when I arrived in Chumphon last month don't wish to do another one.

A friend of mine just flew from Chiang Mai to Surat Thani to get back to Koh Samui a few days ago, so if flights are going one way, it seems unlikely that they aren't doing a return journey (even if you have to fly to BKK and then BKK to CM)

If you have accommodation to go to in CM, you don't have to go to quarantine, but can self-isolate at home (which in reality we are all doing anyway as most things are closed) but you can still go out for shopping for essentials and also to go to immigration

14 hours ago, edwardflory said:

Be SMART:

Extension of stay based on retirement or marriage is NOT A VISA although called such.

 

My IO said I must renew my "extension of stay based on retirement BEFORE IT EXPIRES",  I did so in about 7 minutes because I had all the paperwork, up to date, with me.

 

Many IO's are almost empty - depnding where you live.  Make a call to YOUR IO to find out what YOU are required to do.

They may well argue that they are keeping things simple, even though it's not the correct terminology, but it's worth noting that even Immigration refer to Marriage Visas and Retirement Visas rather than extensions of Non-immigrant visa for the purposes of etc...

I have a problem completing my form for extension every year as it asks what 'Visa' I am have. Since originally obtaining a Non-Immigration Visa, I have changed the basis of stay so my original category is not the category I wish to extend, so even the forms are incorrect, but what can you do? 

4 hours ago, Max69xl said:

Domestic flights will start this week,so you are able to get back to CM in time for your extension. If you read the amnesty,it says that it covers every type of visa/extension until July 31 if you're "affected" by the coronavirus situation. If you can't get back home because of lockdowns or no domestic flights etc etc, then you're covered by the amnesty, but now you can fly back home without any problems. If you don't have to self isolate 14 days when you're back home, then you can't say that you're affected by the coronavirus situation at all and should apply for your extension as usual. 

You can change where you are registered by filing a TM28 which provides a new 'permanent' address. It doesn't matter if you own the property that you live in or not (it may be an issue if you have a yellow books/pink cards, as in theory you are meant to change your registration with the amphur also, but that's not an immigration issue).

Once you have filed a new TM28, and presuming that you've filed the TM30 at that address, then (as I understand), you then treat your local office as your normal office for extensions/90 days/etc. 

Obviously, when things get back to normal, you can change back for the following. Whether there will be questions asked about chopping and changing, I don't know and maybe someone else has some experience of that. 

If you have been following the discussion with Ubonjoe, there is clearly a question mark at the moment about what the status of visas extended by the covid extension will be, and for that reason, if the OP can extend normally within time, he would be best advised so to do at the present time

7 hours ago, ubonjoe said:

1. If a person did not or could not apply for the extension the could stay until July 31st.

2. No

3. That is unknown. But there is a good chance it would be lost. Best of apply for the extension unless you cannot meet the requirements.

According to their information, the Covid extension acts as an automatic 'extension of temporary stay in the Kingdom' without qualification, which terminology (temporary stay) on the normal interpretative basis applies to basically all forms of visa. Therefore, there shouldn't be a problem just extending in the same way as any other extension before expiry (i.e. before 31st July). I appreciate that that's my opinion, but it's madness that there are (and can be) differing views on the issue. Immigration shouldn't on the one hand be saying that there is an automatic extension and then on the other having IOs say that by relying on the Covid automatic extension, you lose your right to extend normally. In my view, any IO applying that (lack of) logic would be open to a challenge at administrative court, but FGS who would want to risk that?  This shouldn't be an issue open for interpretation by individual IOs and someone should be trying to get Immigration to (urgently) clarify the issue (yeah, I know, who?). 

23 hours ago, ubonjoe said:

You need to apply for your extension. It is not clear if you could easily apply for another one if you let it expire and tried later under the "amnesty".

If you formally changed your address to Chumphon you could apply for your extension at immigration there.

Has anyone translated the actual order which may or may not have clarification as to the actual technical status of the extension?

According to the infographic posted online in English and Thai (and which seem to emanate from Immigration), there is an automatic extension of stay for ALL visa types until 31st July, so according to this, nobody should have over-stayed their visa/extension permissions, provided they apply before the end of the automatic extension, in which case, they shouldn't need to have to get a new visa. 

I am not saying that I don't appreciate that IOs won't come up with their own interpretations, but respectfully (for what little it is worth), I don't believe that on the basis of the automatic extension, they would be legally correct in requiring applicants to obtain new visas.

It's madness that they are issuing legal advice effectively on the back on a postcard as a one size fits all approach, but TIT

20 minutes ago, Antonymous said:

 

Whether you call it selling or transfer, the same taxes will have to be paid at the Land Office and ownership will change. There is no difference.

There is clearly an enormous and substantive difference between selling and transferring a property legally and practically.

Transferring ownership can be done without substantive consideration being paid and without you being required to vacate the property. 

Selling invariably means someone buying the property for valuable consideration and you not being able to remain on the property

A lot of people are referring to the OP having to sell the property which suggests the latter, and the OP may not appreciate that he can do the former. I am just clarifying the point

You are correct that transfer fees will have to be paid regardless. There is no way around that

On 3/15/2020 at 11:22 PM, SAINT THOMAS said:

I have 3 land deeds 1 in Surin and 2 in the village were our house is, my wife has no Thai children from a previous marriage to an American, 2 sons born in america or it would go to the children.

 

I have a policy at the government office for 200,000 baht think it is in case she died ahead of me in my name. 

 

I had such problems with my wife family over the years Since 2002, when I went to do a 30 year lease with the Judge in Prasat he instead put me on the back of the Deed to the land and gave a yellow book on the property with the house on it, the other property which I bought last year is right behind the house which I just filled in with dirt, fenced off and planted all fruit trees on about 2 Rai. 

 

I don't know if I would even have to give or sell the land and house with my name on the back of the deed? I will worry about that when and if the time comes or if she died before me.

 

I have to much invested in the house and lands in the village to sell it and who would buy it or have the money to buy it anyway 9 - 10 Million Baht? except the Surin land which is located in an area of all apartment buildings that I have 2.2 million baht invested in all paid with cash, so I don't owe anything on any of the properties or house.

 

My wife is 5 years older then me so I will give it all to someone I trust and that is not many if any and do a 30 year lease at the very same time of transfer, it would also have to be someone I would want the properties and house to go to when I died, that is the most important thing to me, I will hold on to the land deeds so they don't borrow on them also.

 

Money and Thais is a very dangerous combination.

 

My buddy did a 30 year lease with his girlfriend who died in an accident a few years ago, he paid cash for the house and cash for a car, the daughter won't give him the car and doesn't want him in the house, so what would someone do then? 

There have been several reported cases of a foreigner buying assets, the wife dying intestate (without making a will) and the family kicking the husband out without compensation. The courts have upheld the entitlement of the foreign husband to having half the value of the property returned to him so the family were ordered to either come up with the funds or have the house sold to compensate him. Obviously, half isn't the true value, but half is better than nothing, but the Courts haven't just written off the foreigner's contribution. Importantly, the foreigners in these cases have been able to prove that the funds came from them (bank receipts etc.) so if you just handed over cash and hoped for the best, you would struggle to prove what the money was used for and/or wasn't a gift.

As he has a lease (presumably registered with the Land Office), then there is nothing legally that the daughter can do to evict him or remove him from the property unless and until the lease comes to an end or the terms of the lease are broken

Regarding the car, it is worthwhile noting that having your name in the blue book is prima facie evidence of being the owner, hence it can be rebutted by evidence e.g. some written agreement that BF would buy the car for GF but that it would continue to belong to BF. Frankly, that's extremely rare, so even if you could prove that you had paid for the car 100% it would be treated as a gift and falling under the estate of the deceased partner. If unmarried and no will, then there is no lawful justification for expecting the deceased partner's daughter to hand back the car. If the person put the vehicle in his Gf's name in the mistaken belief that he couldn't do so himself as a foreigner, then he respectfully only has himself to blame. Equally, it's possible that the car was a gift and your buddy didn't expect the car back. 

On 3/16/2020 at 12:56 PM, JimGant said:

For sure, no in the US -- Thailand, probably not. Take this case: 'I leave all my money to my son, Jerk, with the proviso that he only spend $10,000 per year.' Unenforceable. So, you leave the money in trust for your son, with a trustee carrying out your request. No can do in Thailand.

 

Your wife's Will can just leave the house and land to you. You and your wife can discuss who will finally get the property, say, Dang the nephew -- but don't put him in the wife's Will. Instead, discuss with him this plan: Upon the wife's death, you plan to go to the land office with him to re-title the chanote in his name, followed immediately with annotating a lease, or usufruct to the back of the chanote in your name. Result: A Thai, as required, takes possession of the property -- and that Thai is the person your wife wanted to eventually inherit the land. But, by not putting Dang in her Will, if somehow things head south with Dang before you hit the land office, well, just find a better nephew, as Dang has no recourse to the land. And if things head south after Dang takes possession, well, you can still live on the land without fear of eviction, by Dang are any subsequent owner.

 

Of course, this would be a no rent deal. You could also make it a no cost deal to Dang by paying the annual taxes, etc -- but he should be happy just knowing the land will be his free and clear upon your death -- as the lease dies with you.

 

Worst case: Dang, upon taking possession of the chanote, runs out the door of the land office laughing hysterically. ????

Even in Western countries, making a conditional will is problematic unless all the points are dealt with including the actual inclusion of a draft lease/usufruct (and discretion of the executor to amend mutatis mutanda in the event of legislative etc. changes

Thailand has a simpler legal system (rightly or wrongly) in that stare decisis hardly applies so the application of the written Code is the only thing you can rely on in the absence of a Supreme Court ruling on an issue (which of course is not common)

In simple terms, the suggestion you have made of getting the wife to transfer the land to the husband/partner is the best one and let the husband/partner decide how he wants to deal with the freehold (blue book)

On 3/16/2020 at 7:54 AM, bangkoken said:

A Last Will & Testament clearly stating that you will continue to live in the property until your death or otherwise abandoned the house.

It is a "Life Estate". Very common in LW&T and can withstand the scrutiny of the court and is enforceable in a court of law. Your welcome.

Life Estates are very common in Western countries which recognise the concept of trusts. Thailand is covered by a written Civil and Commercial Code, and generally speaking, does not recognise trusts, so I would be interested to know if you have actual knowledge of this being enforced as a legal right in Thailand. 

I see a lot of people quoting one year, but I am not sure that that is the actual official time. My understanding is that the time in which you were required to transfer is 6 months, on which another poster with direct experience, seems to be confirming. This being Thailand, the actual period may vary from land office to land office, so best to check with them or a local lawyer.  I believe that it is possible to apply for an extension, which is perhaps why people are quoting a year.  

Also, people keep going on about selling the property. in fact, all that is required is to transfer the ownership, which is usually far less difficult to arrange than an outright sale e.g. to Thai kids or friends or relatives (subject to your retaining the rights and if necessary signing new documentation to confirm the position regarding your entitlement to remain in the property)

17 hours ago, jackdd said:

The requirements can change any time. Of course they should post things like this on their website, but this would mean less income for them, so they don't do this. But because we know that things can change without any notice it makes sense to call them before going there to get up to date information.

In an ideal scenario, you would be right, but considering the fact that immigration officers are already overwhelmed with work, good luck trying to get someone to answer and get the details from them. 

On 2/14/2020 at 5:33 PM, FritsSikkink said:

 

That you don't bring the right paper work is your own fault.

 

That's not really correct as they have changed the requirements over the last few months. In theory, the requirements should not change over each extension (i.e. what was valid last year should be the same - I know about Embassy letters being taken out of the equation, but they shouldn't be using that to make other changes e.g. not permitting mixed income and savings). There have been several people positing that the underlying reason for several of these changes has been to put pressure on people to go through agents but that is obviously just conjecture. 

I did my extension at CM a few months ago using the old system and then they changed some of the requirements without posting either at immigration or on their website (i.e. you only find out by scouring the forums or when you turn up and get rejected)

57 minutes ago, BTB1977 said:

You both fly back to what ever country she is married in. Hire a lawyer and pay whatever it cost. As she is worth everything to you. Getting a thai girl out of a problem that is not your problem is a stupid thing to do. Wake up. 30,000,00 thai women and this one is the best of all thailand. 555. Why you fooling around with a married women? 

If they are legally separated, then she is only married in a technical sense. Quite a judgemental post