oracle

4 hours ago, blackcab said:

It can't be a right of servitude as you would not have a physical property located on their land. Overhanging roof space doesn't count.

I see what you mean but think you are mistaken a right of servitude with a right of superficies... right of servitude has nothing to with a physical property located on the land, actually on the contrary.

maybe as a right of servitude

Civil code section 1387. An immovable property may be subjected to a servitude by virtue of which the owner of such property is bound, for the benefit of another immovable property, to suffer certain act affecting his property or to refrain from exercising certain rights inherent in his ownership. 

มาตรา 1387 อสังหาริมทรัพย์อาจต้องตกอยู่ในภารจำยอมอันเห็นเหตุ ให้เจ้าของต้องยอมรับกรรมบางอย่างซึ่งกระทบถึงทรัพย์สินของตนหรือต้องงด เว้นการใช้สิทธิบางอย่างอันมีอยู่ในกรรมสิทธิ์ ทรัพย์สินนั้นเพื่อประโยชน์แก่ อสังหาริมทรัพย์อื่น

49 minutes ago, Aeiou7 said:

I find it interesting to read all kinds of insights about the whole situation, but what I am mainly interested to know are answers to these questions:

 

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As far as I know the resort owner is not allowed to cut electricity/water - or is he, because legally I am neither a renter, nor a legal condo owner?

How about banning my guests and/or myself from the resort through vigilante justice?

 

Could the police do something if I called them after someone got banned from the resort and/or after electricity/water got cut, or would I have to sue the resort owner for his actions?

Would it be possible to sue the resort owner for the received threats only, without any vigilante justice done by him yet?

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If you cannot supply any other information to the police than that you are shareholder in a BVI company that owns shares in a Thai company that owns the resort the police cannot do anything. The police will say the cannot do anything and say it is a private matter between you and the developer and you should go to court.

If your only rights to the units are the shareholding in the BVI company there is little you can do preventing the developer (owner of the building) from cutting you off. 

Normally you always have in addition a lease registered with the land department giving you rights to the units, a house book could even be issued for each unit what also could help. What you describe you see on island like Koh Tao or Koh Chang.
 

1 hour ago, Delight said:

You agree that you are legally obliged to pay the bill(i.e your contribution)

 

The issue is the quality of the job.

I would send him an  email (or registered letter) stating that  you are happy to  pay the bill in full-just as soon as the job is finished- to a standard that befits to rest of the resort.

Put the ball in his court.

 

Note : It is illegal to have the water cut -off in a room  where a  person(s) is  residing

You answer if it is like a condominium. I think for him it depends on the contracts he signed when he paid for the units in the building, but he cannot (never) be a 'de facto' owner of any part of a building in Thailand  unless it is registered as a condominium. He owns shares in a foreign company, but that does not say anything, he is a minority shareholder in a foreign holding (hong kong or BVI) company and this company owns a minority shareholding in a Thai company (that owns what) and the majority of the shareholding in this Thai company is held by developer?  You should look in detail how this is structured. As he says, he is not a renter as what you normally see in these structures, so his position seems really weak.

Don't worry many of us! This questionnaire happens now and then for some, it is random, it is something to worry about if your receive such a letter, but your lawyer is wrong, this is not a crackdown! They dbd are probably not from your local dbd department. Make sure, as you should always, your company documents are up to date, shareholder, accounting, general yearly meetings and such. As long as you comply with all obligations as a company and director you should be fine. If you receive such a letter make sure everything is up to date and check with your Thai accountant or lawyer.

In the end the DPD officials do not have the authority to determine if you use nominee shareholders or your company is a holding company, illegal holding land or whatever. That is in the end always up to a judge. They just want to make sure your company is in order, land holding is an issue for the land department not for the dbd.

Let us know how this works out for you.

you cannot lease from your spouse when married, check https://www.thaivisa.com/forum/topic/492364-legendary-british-farmer-joe-loses-water-tight-30-year-lease-in-thailand/. He is not a loser but someone acting in good faith, he probably used a lawyer and lost everything, don't do it!

On 15-12-2017 at 1:31 PM, Tofer said:

Why does the company have to "involve nominees"?

 

I was under the impression a foreigner could own 49% of a company that owned land with one more Thai than foreigner shareholders holding the remaining 51%. Also that such a company is perfectly legal providing the shareholder can prove their wherewithal to purchase said shareholding.

I agree, but you must register the land under a Thai company with the shareholding structure that you mention, i.e. foreign shareholding up to 49%, preference shares for the foreigner and being a sole and foreign managing director. If this is accepted by the land office you are pretty safe when it comes to your Thai shareholders. Not what you usually see that you register the land to a company with a different (fully Thai) shareholding structure and then after the land has been transferred to the company the shareholding is changed to the foreign Thai shareholding that you mention.

If you follow this last procedure your Thai shareholders are questionable and company shareholding structure likely illegal when it comes to land holding.

5 hours ago, trogers said:

Not just some Land office. My lawyer called and checked with the HQ Land office in Bangkok before bringing me to the district Land office to get the title transfer done.

 

Non-Thai to Non-Thai is not a problem.

 

Potential problem is in Thai to Non-Thai, because the said property has no FET in the first place, and the total foreign ownership in that building may have already reached the 49%.

I'm sure you are right, but because the condo act is quite clear on this subject, could it be that your late dad had residency in Thailand? This would explain some arguments about inheritance of a condo I read before, meaning including some sections of the civil code in this, or if you dad did not have residency, did he had a Thai wil? Thanks.

edit: or do you have residency here?

Supreme Court ruling 2297/1998 confirms nothing since Supreme Court rulings are not binding.

I guess my work here is as done as it's going to be........ :}

I think you are partly right in previous posts, but supreme court rulings are binding.

For tv members who can read Thai (please come back and explain) the land office has a handbook explaining a bit of usufruct here http://www.dol.go.th/dol/images/medias/dol/example/lo/smt/handbook/november/news1.htm . It also mentions the above supreme court judgment. What I know the land office does not allow any foreigner to register a lease over property under usufruct.

The lease is just a lease. The registration does not change anything.

Doesn't the registration ensure that anyone buying a property will necessarily know that it is encumbered with leasehold which he will be bound by and which as it is held by the LO is an immutable point of reference?

That seems a substantial matter.

Sent from my iPad using ThaiVisa app

Here's the real deal. That lawyer on the other thread is correct -- sort of. If you sat down with him or her, you would get the true answer. The trouble with short answers are all the exceptions. In some places a usufruct between a husband and wife is inviolable. In other places it is not. Why? Because appeals courts have ruled on the question in divorce cases. The decisions are split, some courts say the usufruct between spouses is inviolable. Others say it is a contract made during marriage that is voided upon divorce. The high court has never ruled in the question so the issue will remain unclear until it does.

I think it is much more simple and 100% sure that a court can void a usufruct created during the marriage. A court could do so in a contested divorce based on the circumstances and wishes of the parties or the court could keep the usufruct in place a part of the final divorce settlement.

On the tax issue, I assume you have a TFN?

Are you classed as a resident or non-resident for tax purposes?

I have a tax nummer as I worked a couple of months in Australia but then strated working in Thailand and never came back. Currently hold a resident return but probably not a resident for tax purposes. What would be my options? I do one transfer for the whole amount and transfer in AUD to an AUD bakaccount in europe but automatically have to pay (in the worst case) 50% tax over the received interest over the years before they allow transfer, or I try to transfer under 10000 AUD monthly out of Australia. That is it, or not?

Thanks for the replies.

I transferred money into Australia for a property purchase some years ago. I never bought the property and the money is in term deposits in the commonwealth bank since. I never paid any taxes over the interest over the years in any country.

Now I need the money outside Australia. My savings account allows me I believe to transfer amounts up to 20.000 AUD overseas, cash I can take 10.000 per time leaving the country without having to declare the amount. It is a serious amount.

Any advice on how to get it out?

Does anyone know the amount of australian dollars you can quietly transfer out of Australia per time per month without raising a red flag? It is not that I do not pay tax or so but I do not want the hassle of all the paperwork and double taxation.

When a Thai married to a foreigner buys a condo this will automatically be seen as foreign ownership, unless there is proof the money used is personal of the Thai spouse, similar as the rules for buying land by a Thai married to foreigner. You need the sign the letter stating it is her money that is used, then it will be full Thai ownership and her personal asset, or she buys it in her name without proof it is her personal money but then you need to comply with foreign ownership rules section 19, but then, in this case, in her name it will be property of husband and wife.

I don't know what the motive is since the land is unused, has some casava growing on it but my perimeter wall is at least 20 cmwithin my land boundry according to the survey.

I try to find out if I can make a legal report somewhere which prevents me to have to pay for the survey over and over again.

Maybe report this to the police, section Section 67 land code act: It is forbidden to all except the competent authority to destroy, alter, move or remover any boundary marker or mapping stake placed or built in by any place by the competent authority except by permission of the land official.

I think jim is a practical man, a farmer with common sense. I also think you should not rely on what is registered by the land office, especially when you have to ask them twice or pay large amount of tea money. It may not be illegal for them to register something but it may well be void or voidable, but not illegal, and quoted from the land code section 74, if a correct translation 'when it appears to the competent authority that the legal act to be recorded by the parties is void, he shall not be obliged to record it. If the legal act to be recorded by the parties appears voidable the competent authority shall record it when the party who may be damaged thereby insists'

My experience, usufruct is not an universal right that is the same in every civil law country, it developed differently in different parts of the word, granting different rights, usufruct in thailand has nothing to do with home ownership, and I think when you go to the land office with a Thai thai farmer as a foreign farmer and say register a usufruct then it would be considered illegal to register it. Like the guy who wanted to register a lease over a commercial property recently and was refused the lease because he had no wp, or leasing farm land and renting it out to local farmers is considered operating a business as a foreigner.

I don't know but maybe having your name in the housebook?