thaiwanderer

Been talking to a real Thai lawyer today and he told me that a 30 year lease that will paid at the land office after or during the transfer (paid for the whole 30 years period in one go) can't be canceled by anybody.

A 30 year lease is good enough for me, when it expire I will be 80 years old, if I am still alive or perhaps already expired, he-he. If I am alive at that age and my wife has managed to put up with me for so long can likely take 10 years more with me if needed.

Thanks for the tip about usufruct but It is really not an option for us.

If lease to you is granted by your wife it CAN be cancelled. The lawyer is wrong, you misinterpreted them or you meant to post 'other than if its a lease from the wife'.

CCC Section 1469. Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage, provided that the right of third persons acting in good faith are not affected thereby.

[

Your wife can cancel the lease and mortgage and any other agreement made between you and may not need to compensate you (opinions differ). The structure your intent on also appears illegal and you both may well be comitting an imprisonable offence.

That's assuming of course the land office accept the lease and mortgage and for example don't just only allow the registration of the freehold to your wife!

How much is the tea money?

Since you appear interested in protecting yourself there are varying other ways to do it.

On your structure, the first transfer will be the freehold to your wife.

The lease and mortgage will be two further and technically separate transactions.

- therefore three transactions - so I'm a little confused as to why you are questioning why its 2 fees instead of 1????

You talk of your name on the chanote but that means little since it might be for for the lease, the mortgage and / or for something else. What do you think its for? And are you aware it offers no real protection?

Thanks for your inputs.

The more I hear about leasing the more confused I get. I have told my lawyer that I will do only one transfer (app. 220k bath) as I can't see the purpose of all these transfers. We will also go and talk to the landoffice soon and hear what they say.

After some hard thinking over the weekend I have come to the conclusion that I will choose to trust my wife whom I know for app 7 years and we have a lovely + 2 year old son and plan to have another child.

I think in case of divorce we will have to split all assets in 1/2 and that is good enough for me.

Understandably confusing, but the purpose of the 2nd and 3rd transactions is YOU.

One transaction alone will just be the freehold to your wife.

Before the land office register it they will require:

her to prove she's buying with her own money;

or ;

you to declare its her own money alone and the land is her Sin Suan Tua (separate/personal property) rather than Sin Somros (community/marital property).

Experiences and opinions on how this plays out at divorce differ.

I have a tower in Paris for sale if your friend is interested.

Could you perhaps clarify what the 2 are to be?

I assume the first is transfer of freehold from to developer to your wife, the second is a lease from your wife to you (strictly speaking not a transfer).

As it stands of course they are two separate transactions so I'm struggling to see why you would think they are or could be one?

You talk of 'most safe option' - are you aware your wife can in the future cancel a lease she's granted to you?

I am by no means an expert on this subject but I will try to explain what the experts have told me.

No we are talking about 2 transfers in the land office, first to my wife and then another where my name will be in the bottom ot the Chanote, thats why the 2X 220 k bath.

I will also be leasing the property for 30 years from my wife and she signs a mortgage agreement. I am having another meeting with a Thai lawyer on Monday and hopes he can explain why this 2X transfers are necessary.

Are you saying my wife can cancel the lease agreement at any time? If so I will assume that she will have to compensate me?

Your wife can cancel the lease and mortgage and any other agreement made between you and may not need to compensate you (opinions differ). The structure your intent on also appears illegal and you both may well be comitting an imprisonable offence.

That's assuming of course the land office accept the lease and mortgage and for example don't just only allow the registration of the freehold to your wife!

How much is the tea money?

Since you appear interested in protecting yourself there are varying other ways to do it.

On your structure, the first transfer will be the freehold to your wife.

The lease and mortgage will be two further and technically separate transactions.

- therefore three transactions - so I'm a little confused as to why you are questioning why its 2 fees instead of 1????

You talk of your name on the chanote but that means little since it might be for for the lease, the mortgage and / or for something else. What do you think its for? And are you aware it offers no real protection?

I have a question regarding leasing:

I just finished paying my house off (to the developer) and now has to do the transfer.

The land office fee is app 220k bath total which I has to pay as pr contract. because I been living interest free in the house for app. 2 years with monthly payments to them.

2 independent law offices in Pattaya have told me that I have to transfer two times in order to get my name in the Chanote and that it will be the most safe option for me? I will be leasing from my wife and we have a 2 year old boy. I am fine with leasing for only 30 years as I will be 80 years old then (if still alive, he-he).

Why is it necessary to transfer 2 times and pay 440 k bath instead of 220k bath?

Hope somebody here can enlightening me, thanks.

Could you perhaps clarify what the 2 are to be?

I assume the first is transfer of freehold from to developer to your wife, the second is a lease from your wife to you (strictly speaking not a transfer).

As it stands of course they are two separate transactions so I'm struggling to see why you would think they are or could be one?

You talk of 'most safe option' - are you aware your wife can in the future cancel a lease she's granted to you?

Lots of theads (with links) if you wish to search - though that will be internet information with the usual caveats.

A thai wife can buy land. The land office will require her to prove the purchase funds are hers or have the farang husband sign a declaration of no interest.

The declaration is to do with the land being Suan Tua of the wife.

It does not mean the prohibition of nominee ownership is not breached nor does its absence mean it is breached.

CCC1469 relates to any agreement - so same problem whether lease, usufruct, superficies or right of habitation.

If adamant wife to be the owner and don't want to go the (Thai nominee) company route can perhaps rely on the third party bit - your sibling or friend perhaps as co-lesse with you.

Or - structure it so lease granted to you before sale to her.

Or - wife buys and grants lease to an offshore company controlled by you.

There's no one size fits all.

Interesting. How does one go about circumventing the requirement of fair payment to the lessor for leasing their land for 30 years? And secondly if the original lessor were to pass away, what then? The lease agreement is null and void?

The lessor/landowner will need paying one way or the other - mere deal structure - all comes out in the wash.

The lease survives their death.

Given OP's apparent situation and aims and the marriage potentially weakening any structure and hinting strongly at nominee ownership if not at arm's length his wish to have mortgage (the thread subject) control can be achieved with an offshore company.

Given he will be living there the ideal situation would be for her not to be the landowner at all,.

Here, the husband grants the mortgage - I know some are a little vacant but assume they'd be aware!

husband does not grant any morgage, topic passed this issue in early posts, did it?

even if succeeded registered at land office, which I doubt any land office would accept, it would not be a valid agreement as already stated

another individual or company grants the loan without husbands knowledge as its her Sin Suan Tua. Only after divorce does husband realise property has been used as collateral for her loan still not entirely safe CCC 1490, 1488

So, would it be a better option to do the leasing contract with the temple directly. My wife knows a couple of people who are leasing land from a temple! She will ask them how an appropriate contract should look like. According to her they have lived there for 30+ years!

They might be there under any number of legal (or not) bases.

If all else stacks up (due dilligence!!!), better to lease direct from temple (and have the current lease cancelled, of course).

As to the contents of the lease its the length of a piece of string. You can have a land office proforma that may be entirely sufficient for your needs (though given your questions I doubt it) or have a very thorough lease with lots of genuinely sensible and enforceable clauses as well as some crap shoot likely unenforceable clauses that you might want to include just in case. All depends on what you want for the money you ae dropping.

Given your second mention of 30+ years I suggest you read the numerous threads on leases here. They aren't even a crap shoot.

Sin somros = community / marital property

Sin suan tua = separate / personal property

Even if you could hold a mortgage on her land, in the event of a divorce arguably she is then entitled to half (i.e. not obliged to repay half) or worse.

A trusted friend / family member could be the mortgagor or an offshore company controlled by you.

Alternatively you could just treat the land as her divorce settlement and protect your other assets in jurisdictions more friendly to you.

assuming it is her land, Sin Suan Tua, she can take out a loan and be single responsibel for it

But the charge on the property would have been aquired during the marriage.

which the husband knows nothing about as its her property, not Sin Somros

Here, the husband grants the mortgage - I know some are a little vacant but assume they'd be aware!

until then sit tight on chanote, and check at landoffice every 3 months its not been applied for a replacement

No protection.

Sin somros = community / marital property

Sin suan tua = separate / personal property

Even if you could hold a mortgage on her land, in the event of a divorce arguably she is then entitled to half (i.e. not obliged to repay half) or worse.

A trusted friend / family member could be the mortgagor or an offshore company controlled by you.

Alternatively you could just treat the land as her divorce settlement and protect your other assets in jurisdictions more friendly to you.

assuming it is her land, Sin Suan Tua, she can take out a loan and be single responsibel for it

But the charge on the property would have been aquired during the marriage.

Sub-leasing isn't necessarily a deal breaker but will properly involve the landowner.

Although better to have simultaneous cancellation of current lease and registration of new lease between new007 and landowner direct.

However for now the greater concern is it being temple land - full due dilligence on title and city planning required here - is their ability to lease out watertight and can OP do what he wants with the land? - temple land deals are often not what they are presented as.

As to new007's other concerns there's lots of threads on leases generally here - perhaps search?

google 'civil and commercial code thailand'

Sin somros = community / marital property

Sin suan tua = separate / personal property

Even if you could hold a mortgage on her land, in the event of a divorce arguably she is then entitled to half (i.e. not obliged to repay half) or worse.

A trusted friend / family member could be the mortgagor or an offshore company controlled by you.

Alternatively you could just treat the land as her divorce settlement and protect your other assets in jurisdictions more friendly to you.

It is not a lease per se that is avoidable it is any agreement, so a mortgage between husband and wife would not help.

Civil and Commercial Code section 1469 - Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

You also need to consider the distinction (and friction between) sin suan tua and sin somros.

Perhaps more fundamentally you may wish to consider the consequences of marriage.

an outstretched hand official aside (as with anything), entirely possible, done and continued to be done many times

- an offshore company is merely a corporate foreigner

the difficulty the OP faces is wanting wife as land owner/ lessor (and not thai company) and wanting some protection for himself - avoiding thai company as land owner can here make the nominee ownership more transparent (since he and she will be living there and he wants some protection for himself - the paperwork and reality will point to what's going on, should anyone be that interested)

CCC1469 relates to any agreement - so same problem whether lease, usufruct, superficies or right of habitation.

If adamant wife to be the owner and don't want to go the (Thai nominee) company route can perhaps rely on the third party bit - your sibling or friend perhaps as co-lesse with you.

Or - structure it so lease granted to you before sale to her.

Or - wife buys and grants lease to an offshore company controlled by you.

There's no one size fits all.

Lease from your wife offers no protection really - Civil and Commercial Code section 1469 - it may be avoided at any time during marriage or within one year from the dissolution of the marriage....provided that the right of third persons acting in good faith is not affected thereby.

Decent due dilligence should involve ascertaining chanote correct, checking for encumberances, researching its passage and history from first record at land office, site visit for boundaries and checking against building permit, checking building permit genuine and in any event that the building doesn't offend any planning laws, also consideration of planning restrictions (or lack thereof) of surrounding area, public road and utilites access, local disputes etc

Plenty of threads on each of the issues you raise (perhaps search?), so some brief pointers in red italics below:-

Some questions before I take the plunge....

Considering buying from a developer ...Individual lot, and house to be built on the lot, by the developer.

Buying the land and house in my Thai partner's name.

Developer has 40+ lots in a 'village' environment. House plans and prices are fixed. majority have been sold. Of these approx. 50% have been completed and already occupied, others in stages of completion. The remaining lots are for sale.

Each lot has a Chanote.

Developer has a purchase contract which seems comprehensive in terms of clauses, and includes the usual "payment schedule and final payment on transfer of land and house" all specified in the contract.

What key things do I need to act on? e.g.

Is it essential or preferable that I engage a lawyer/conveyancer?

- some say yes, others no - given the questions you ask I'd suggest it prudent for you

If so, any estimates of what the lawyer's fees might be?

- depends on the service required (seems unclear at the moment) and the lawyer - although some would say 10k THB too much, others 100k THB too little

Do I need to get a "Title (Chanote) Search" done like in western countries?

- IMHO yes

Does the validity of the Chanote need to be verified?

- IMHO of course

Does the existence of the Chanote negate the need for a 'search' (that's what I understand from meatboy's quote)?

- even if a real Chanote its only good at the moment it was obtained

Is there such a thing as a Title Search in Thailand?

- yes, a Lawyer can check the validity of the land title, check for encumberances.... and trace its passage and history from first registration etc

My partner will be the owner. Does she automatically get a blue book showing ownership?

- not automatic but not necessarily difficult

How do I go about getting myself on "the 30 year lease" of the house?

- By way of a 30 year lease between you and the landowner registered at the land office (preferably house AND land). Is she your wife rather than girlfriend?(it is relevant rather than just a personal question). A little more personal though still relevant, what is your motivation for wanting to lease from her - if self protection or whatever there are differing ways to achieve this

Any other questions that need answers?

- due dilligence should include city planning (shouldn't be presumed)

- contract review by lawyer

- more depending on your answers / thoughts on the issues above

thanks.

A few threads on this in the past, perhaps search.

AFAIK there is no 'new' law. Bribery request aside local interpretation varies alot (even in the same place) and I suspect the mention of a 'new' law is just an excuse for the wind changing where you wish to build.

BP's have been denied because foreigner, also foreigner without apppropriate visa / certificate of residence and or work permit. Also, offshore companies have been denied them as no incountry address / business etc..

Some foreigners and offshore companies have had no problems getting them, but the wind can change often.

In your case if its not a bribery request (usually made clear straight after the 'cannot') the BP can be held in the name of the construction company (with a decently drafted construction contract) and on completion ownership can be transferred to you and registered at the Land Office.

Not having the BP in your name can offer some help (but not a shield) to avoid some of the murkier traps of being alleged to be working illegally in relation to the construction.

Presumably what you want to build is allowed by local regulations on that plot and you have permission under the lease?

..... I think that the vast majority are aware.

I've met several people, fresh off the banana boat, who have purchased company name condos from the developer in new Pattaya buildings without being made aware of any of the disadvantages of doing so.

Moral: dont trust agents selling you new builds, or used places for that matter.

I love that last sentence.......But as for buyers, while never surprised by anyone's stupidity, greed or whatever any foreigner unaware of pros/cons of buying condo units in Thai or Foreign name IMHO only has themselves to blame.

But it also empowers the holder to act on you behalf in ALL matters even when you are not incapable and is therefore open to abuse.

Yes, the purpose of it is to act in your best interests should a situation arise where you lose capacity.

Of course, any time you give authority to another person it is open to abuse, that is why you should only give it to someone whom you trust.

The POA should be specifically restricted to acting on your behalf for the purpose of purchasing the named property from the named person and shall be void on the completion of the purchase or if the purchase fails to be effected.

I would never suggest that there would be a need for a Power of Attorney on the purchase of real estate. I was outlining to the OP that as it had been mentioned by his lawyer, he should look into an EPA, which would cover him for any issue that arose in the future.

Re EPA's,

frankly, as a general comment to those against them, simple, don't get one done.

There is nothing suggesting any compulsion.

I will say though that the antagonism against them and even the incorrect abbreviation for them given by one of the posters above shows that the actual knowledge of how they operate and their importance is sadly lacking.

I am open. I have one. My wife has one. We trust each other and trust that we would look after the other should a situation arise where we couldn't look after our own individual affairs.

If you feel that you don't need this, well don't get one.

If you feel that you will never have the need, even against unexpected situations, then don't get one.

As I have said, there is nothing compulsory about them at all.

Also, they can be revoked by the donor.

However, if you feel that it may be a useful thing to have, then do look into them. (and if you take that as condescending, well.....!!!)

Oh, in case you are wondering, yes, Law was my original profession.

As to condescending you missed the wink, but since you wish to pull rank and then take your ball home perhaps I should reconsider my career (notice the wink, all in good humour)

The abbreviation here differs because EPA means something quite different in Thai Law as translated into English.

I had questioned who in their right mind would want one in relation to a purchase and I suspect the OP's Lawyer only mentioned POAs in relation to their attendance on his or her behalf at the Land Office, a standard procedure here.

The idea that a foreigner should trust that the document can't be (mis-)used without their instruction is frankly bizarre.