thaiwanderer

While what's palatable to the land office doesn't always go only as far as the law I am sure you can understand more unscrupulous people might want a private agreement that makes all sorts of promises (that cannot let alone will not be kept) to be hidden from prying eyes?

Assuming the English contracts are all onshore and intended to be governed by Thai law in Thailand - wanting to keep prying eyes away has a whiff of unenforceability right from the start I'm afraid - rather than any issues of practical or commercial sensitivity.

The Crown land element is also highly interesting.

I'm not trying to paint anyone as a baddie whatsoever - though your apparent outrage at the slur appears a bit much on the information provided.

I can understand retaining some of the deposit for wasted time perhaps - although i'm still unsure what your role in the whole thing is and on what basis you would hold and receive the deposit anyway?

Your business of course but you were the one who started the thread.

Lease is NOT automatically cancelled by sale / transfer of the freehold (Civil and Commercial Code 569).

A Lease for longer than 3 years that isn't registered isn't 'illegal'. All else being equal it remains valid and enfoceable EXCEPT for the term which will be no longer than 3 years.

As the OP talks of a 3+2 then the 2 is a promise to renew and is techinically enforceable against the original lessor who made that contractual promise. That cannot be enforced aganst a new freeholder who merely buys the land.

Hence the reason why the English contract should match the Thai contract!

The reasons for not doing so may be laziness, lack of knoweledge or something more shady (though i would certainly not jump straight to the fraud allegation).

As I've said the renewals and all other delightful clauses can be included in the registered contracts (though don't make the registered lease any longer than 30 years).

The only reason they may need to be amended before registration is allowed is a lack of knowledge by whoever drafted it in the first place or a very sudden change of position by the land office.

Those amendments will not make the essence of the promises unrecognisable.

Ideally of course ('to best protect client's interests' ) touts should know all this going into it and amendments need only be rare.

I repeat 'land office no like' is a lazy shorthand.

The OP still hasn't confirmed how / why he's received any deposit?

Regardless sometimes a shortform Thai lease is often used to avoid any sniffing around over the company lessor.

Beyond that, genuine or sham, what's the registered capital of the company lessor? Assuming its still the freeholder after 30 years (the lease being absolutely no bar on sale and there being a large incentive to sell and defeat the renewal) the limit of the recoverability is how many million Baht? (i suspect rather less than the values at stake)

I think at least part of the reason the posts in this thread haven't been entirely sympathetic to your 'plight' may be that you've failed to explain matters fully and or consistently. Although I suspect even if we could see both contracts sympathy wouldn't necessarily be forthcoming.

You talk of the freeholder dying separately from the company within which the land is ringfenced which is a bit nonsensical - i suspect from other things you say that the land is owned by a company but if you make such a slip on that simple point i can only imagine what slips may have been made in explaining the vagaries of the status and enforceability of renewals to the prospective lessee.

Subject to slight amendments to fall in with the occasional change of wind direction at the land office the full english language lease (with a delightful array of clauses that aren't themselves registered) can be registered in Phuket by an experienced and competent lawyer. Hardly a 'remarkable achievement' except perhaps as described by you and or your 'legal advisors'?

This doesn't then make options to renew etc 'registered' per se but will then assist as regards the evidential burden later in trying to enforce them (itself often a major hurdle).

Whether the contractual promise is then enforced is of course a greater or lesser crap shoot.

However 'land office no like' is often a lazy shorthand for others to keep their options open.

As an aisde it seems you have received the deposit but are not the lessor, how exactly is the money protected for both lessor and prospective lessee?

I am lost...who is " scamming " who???

Well it does seem that everyone has got confused. But one thing I firmly believe is that you will never have success unless you act in the best interests of your clients. Scammers never really make money (except for that Madoff guy). (Incidentally it is not, in my opinion, in the best interests of clients to give a refund to someone 4months after they signed a contract because he hadnt read it and didnt bother to check the law (or with a lawyer). Why should good diligent clients pay for incompetent ones. It would be totally irresponsible.)

I'm unsure exactly how your keeping the entire deposit stops the price increasing for the next lessee and is not mere profiteering?

Whilst a prospective lessee should of course carry out their own due dilligence of whatever scale they deem appropriate and then accept the associated risks, with something so fundamental as this were you entirely open and honest (in discussions / sales bluff) that the renewal is not mentioned at all in the registered lease?

Also whilst the renewal itself cannot be registered it does not mean it cannot be mentioned at all in the Thai lease that is registered (and therefore provide evidential support for later enforcing the contractual promise).

Screw the Farang year.

Aaah, the Thaivisa knee-jerk paranoia. It's the new 'First' on discussion board threads.

I think you'll find this affects literally millions more Thais than it does farangs.

Screw the Thais year Ha, that will teach them.

Um, Thais can buy land in their own name.

Foreigners have to go through a company.

Consider yourself proven wrong.

Foreigners don't HAVE to buy land.

(subject to minor exceptions) foreigners involved in buying land actually pay less than their thai corporate partners as they can only own a minority of the company - so it affects thai individual shareholders more.

If however you are referring to companies where the thai shareholders are merely nominees are you genuinely suggesting anyone should sympathise with foreigners having to pay more fees in their illegal operations?

Why is this viewed merely as a farang bashing measure?

It affects Thai companies rather than individual farangs.

If farangs feel they are being victimised because of this (rather than their majority thai partners also) i can only assume its because the companies are in fact shams.

If so paying a bit extra in fees is hardly a great step in comparison to actually complying with the law?

Perhaps those are so outraged should explain why it is actually aimed at them rather than teh companies tehy are minority shareholders in - although that might then open them up to admitting an imprisonable offence?

foreign buyers are in no debt at all, they have to bring the funds in (for a condominium).

I dislike that often repeated fallacy.

Whilst the 'cash' may be unencumbered in country it doesn't at all mean its debt free.

True, but a technical point A complex subject in itself, the funds are concrete in Thailand. (unless living working etc in Thailand, small number IMO)

True. But often its then pumped by realtors to mean that the foreigner orientated Thai property market is somehow immune to ordinary economic pressures etc. because foreign buyers are only ever hard cash buyer with money to burn etc.

foreign buyers are in no debt at all, they have to bring the funds in (for a condominium).

I dislike that often repeated fallacy.

Whilst the 'cash' may be unencumbered in country it doesn't at all mean its debt free.

A helicopter isn't needed to find widespread abuse.

Concrete buildings and infinity pools can be seen with feet in sand.

But......

This does not expand the classes of foreigners or the necessary requirements for foreign ownership of Thai land that are already well known.

Superficies will not preserve a lease in the way you appear to suggest.

Superficies and lease are distinct concepts but can be used together.

Superficies can be transferred by way of inheritance.

If more hoops are jumped through a lease may also survive the death of the lessee.

In any case you may wish to hold your lease and or superficuary rights in an offshore company name if inheritance is an issue with which you are concerned.

amusing.

Yours will have sold out of the biggest apples at a discount to people who can buy apples or oranges and then have only have small apples available when apple restricted buyers arrive.

My 'stall' can make 10 satang yours will tend to make 1 satang - if i have to i'll settle for 1 satang but why accept that at the outset?

I'll stop with the furit analogy before we start making pies.

I give up and hope you never open a fruit stall given your inability to understand even basic supply and the difference between apples and oranges.

I'll give it one last go.......

Example:-

Developer has one condo with 5 penthouses and 20 basic units.

The foreign quota is equal to the 5 penthouse units or 18 basic units or a multitude of other combinations.

The day of sales opening the first person to walk in is a foreigner who wants a basic uint in his own name.

That day the devloper CAN sell any unit to the foreigner but is confident that he can sell all 5 penthouses to foreigners.

Likely he won't want to sell that basic unit to that foreigner then.

6 months later the developer has sold no units at all.

The first day foreigner returns and the developer may well snap his hand off in selling a basic unit.

My original post you disagreed with was my saying that just because a foreigner wants to buy in his own name and the quta is not yet exhausted does not mean that regardless of the unit he wants the developer will want o or have to sell to him.

& on a more basic level as you seem to be confusing the two Leasehold IS NOT freehold.

Foreigners can BUY all the thai land they want BUT it doesn't mean they OWN that land

(not sure what happened there, anyhow):-

1. The purported options to convert to freehold rely on the law changing to allow foreigners to own land.

Without the change in the law what use is that clause?

2. Leaseholders aren't entitled to the ownership papers beacause they are only leaseholders.

Even if a stupid land owners were to pass them over what use are they - holding them doesn't mean you own the land or can stop the landowner selling the land.

They don't have to lie they can just tell the land office the lessee won't hand them over.

3. What value an unregistered lease?

Anyhow a lease is automatically extinguished at the end of the term without notice, the maximum residential lease term is 30 years.

The worst thing that can happen is the landowner dies as the land passes to his heirs (not the lessee) and the renewal options and all the other frills aren't enforceable against the heirs.

4. Your reasoning here is perverse - I am not entitled but someone else is. As someone else is entitled I am entitled????????????

Foreigners MAY acquire land IF they have the RIGHT to - if no right applies to a particular foreigner they cannot own land (extrapolation does not work here)

5. You avoid the question as to how they offer more protection or are subject to different laws.

There is no right of action against officials where they are negligent or make mistakes.

Tolerance doesn't cleanse illegality.

In any case no official formally approves such clauses as you are touting and on the basis of which you can then enfoce it at court regardless of the clauses offending the law.

6. I know consumer protection laws have nothing to do with it - it was you who mentioned them as if they have some relevance or offer some protection where you want to rely on illegal cluases and or purposes.

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

1. In this 90 year structure you have the right to transfer to freehold and the option to go to court. In court you will be deemed the person with the rights to the land, but as you are not allowed to own land you must sell within 1 year of receiving official notice to do so. This is only if you have to go to court. If you don't like this option then you leave it out, but as you pay the freehold price for the land anyway, why not put it in?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

3. In this structure you pay for 90 years in advance, does not really matter how you divide it. You do not have to enforce your renewal under this structure. It's also not that you remain unlawfully upon the land after 30 years + 1 day. You do not have a lessor as he gave up his ownership rights. He may be long death or dissolved after 30 years. Also under hire of property laws the hire is automatically continued after 30 years, only not as a registered lease.

The practical problem is how to sell the property, but this is a problem under any lease or usufruct structure. Also here you can again go to court to obtain approval.

4. Because of the BOI rule the right to transfer to freehold in this structure is not void. For the same reason a sale and purchase agreement of land in the foreigners name is not void, and this has been gone up to the supreme court. If foreigners were absolutely prohibited from owning land it was void.

5. In a licensed housing or condominium development the sale contracts must be approved as part of the licensing procedure of the project. These contracts must comply with consumer protecting laws. If you buy for example from a foreigner with a few plots on his wife's name you see all kinds of contracts, like usufruct as there are no rules for them.

6 Nothing to do with it.

^but how does the purchaser know that a unit is in the Thai Quota or Farang Quota?

The developer can just add 1 million to ANY unit that the Farang wants to buy.

Of course they can (and do) - not sure what difference that makes?

The exact same unit in a particulatr development is still worth more to a foreigner than a thai because the foreigner has less freehold ownership options.

The difference is that my point is that it doesn't make any difference to the developer what unit he sells to a Thai and what unit he sells to a Farang, but you're saying that some units are only available to Farang and others only available to a Thai.

Remember the 49% / 51% is applicable to floor area, not number of units, so if the developer can sell 49% at a higher price to Farang, does it really matter which 49% it is???

Yes it does matter which 49% (though i never said there are foreign only units)

The same unit if sold to a foreigner will likely command a higher price because the freehold property ownership options available to the foreigner are narrower.

Beyond that there is more money to be made on the development as a whole by selling the bigger, nicer and more desirable units in a particular development to foreigners than to Thais (rather than using up the foreign quota on all the smaller less desirable units).

1 square meter in the penthouse is worth more than 1 square meter in the basement

1 foreign quota square meter anywhere in the development is worth more than 1 thai quota square meter

Your model has the capacity to minimise profits - there's no reason it cannot be followed or market conditions may dictate selling to whoever makes an offer - but why would a developer want to do it?

^but how does the purchaser know that a unit is in the Thai Quota or Farang Quota?

The developer can just add 1 million to ANY unit that the Farang wants to buy.

Of course they can (and do) - not sure what difference that makes?

The exact same unit in a particulatr development is still worth more to a foreigner than a thai because the foreigner has less freehold ownership options.

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

Annoying and from Phuket Of course 90 is 30 + 30 + 30 don't you see the whole picture, dumb and old people are not open for new ideas

Annoying because i pick you up of what you say?

'new ideas'????? seems your knowledge is based on reading some clauses five years ago from the contract the legal basis or otherwise of such you do not understand.

You make frequent slips and basic misunderstandings but just keep ploughing on.

That you do not understand the distinction between 90 and 30+30+30 and all else is really shocking for someone who pontificates but then you only insult rather than standing by what you say?

You say you have no interest in investing so whats your knowledge and experience based on?

I said in a previous post that i'm not buying here but if i would by i would do it under a company, but that is because i know people here and am aware of the risks. Personally i don't like Thailand that much to buy property here and do not have Thai relations, but it has nothing to do with the legal system of ownership for foreigners.

For the 90 year lease, you must not only approach this from a hire of property point of view and you should not see it as a lease with a 90 year term, as from a hire of property point of view it's still a registered term of 30 years. 5 years ago a saw a 90 year lease drafted by a member Sam ilo who included this principle in his leases, he specifically referred to the term for it in the lease, so maybe he can comment and give his opinion.

I'm not saying the 90 year lease is perfect, but still you should not ignore it as irrelevant, as for now it is the best option, then again well drafted, and it has the best effect if it is for leasehold land and ownership over the house with a right to transfer to freehold.

I doubt very much that Samilo drafted a lease with a 90 year term, perhaps instead one with a 30 year term with clauses purporting to give the right to renew (because 'if made for more than 30 it shall be reduced to 30...' etc).

However just because a contract says something doesn't at all mean it's enforceable either against the other party or even legal where the other party has no objection to it.

Leases should of course not be ignored but all the various add ons to a straightforward 30 year registered lease do not at all carry anything like the weight of the 30 year lease itself.

Indeed its arguable that the 30 year term is weakened by adding the frills.

At least the owner has to apply for a replacement title deed before there is anything he can do with the land. Becuase of the boi rule a sale and purchase agreement of land with a foreigner as the buyer is not void, as land ownership for foreigners is not absolutely prohibited. For the same reason the freehold option in the lease is not void. Sales in an official housing development is a contract controlled business and these contract must comply with minimum consumer protection laws. For the other point read my posts again

So holding the documents provides no protection then, as I said?

A land sale and purchase agreement for a foreigner who does not fall under the BOI rule IS void (BECAUSE THEY DON'T FALL UNDER THAT RULE).

The option to convert to freehold is as i've said typically phrased so that the lessor (hopes to) rely on it should their circumstances change or the law change so that they can own the land - if neither of those changes take place they can't just enforce it on the basis that someone else can buy land under the BOI rule.

On your reasoning all foreigners can currently buy land because some foreigners can under the BOI.

How do consumer protection laws protect people who break the law?

There is usually a range of opinions on these matters but with respect yours seem so off kilter / left field i wonder where you have picked them up from?

That non-registerable renewal options 'follow the title' is based on the same principle why a 10 year lease can be enforceable even though not registered at the land office. I believe the civil code says it's not as it exceeds 3 years?

The 90 year structure also aims to create a right to ownership upon full payment of the lease and renewals and you will be hand over all documents related to the land. This is not void because of the boi rule. If at any time in the future someone wants to claim back your purchased leased land you have a pretty good case in court to be deemed the actual owner of the land, and if the laws stay as they are you will likely be ordered to sell within 1 year of receiving notice to do so. Always better than giving it back to the seller?

All licensed developments still offer 90 year leases and these contracts are government approved. It's only with these small developers who are free to offer any structure they like, as there are no rules, you see the usufruct option and poor 30 year lease structures benefiting them, not the buyer. They conveniently refer to post about usufructs on TV where total misinformation is given about usufructs, like the for life + 30 years idea So maybe if someone is very positve about usufructs it could well be a small developer selling a few plots on the name of his wife under usufruct and shows to his potential clients printed TV posts how perfect these structures are. That's the scam.

Physically holding all documents to the land affords no real protection.

How does the BOI rule protect non-BOI matters?

Lease is not the same as freehold ownership - you never own the land even for a period of time. Even in the fantasy world where an option to renew is definitely enforced its an option to renew the lease not to give freehold ownership.

If you are mashing up the option to freehold ownership - they are only even theoretically enforceable where you are then allowed to own the land.

Actually if a court were to deem you 'the actual owner' as you suggest above, the result would not be beneficial at all - you and the lessor would be guilty of an imprisonable offence.

What exactly are these licensed developments you are talking about and 'government approved' contracts as I'm at a loss as to how they are subject to different laws and offer any more protection? (you didn't buy into 'thai elite' as well did you???).