A gift of land from a parent

[offset]

Is a gift of property ( from Father to Daughter) while in a marriage classed as marital property

 

Would this property have to be sold and money split between husband and wife

[ThaidDown]

Unless it is stated in writing, at the time of the gift, that it is to be Sin Somros (Marital property)  the property will always be Sin Suan Tua (Personal property).

 

See sections 1471 and 1474 of the civil and commercial code.

 

Note that any 'Fruits' of personal property (any rents or other income for example) are considered joint property.

Edited October 10, 2017 by ThaidDown
spelling

[thaibeachlovers]

You say land in the headline and property in the OP.

 

If land, IMO you have no right to it. Farangs can't own land. If there was a house on it or you built a house, you might have a case if you could afford to take it to court, but only for the house.

[ThaidDown]

My post above was made on the basis that the land was in Thailand and being made to a Thai citizen which may have been an incorrect assumption on my part.

 

If Thai land was gifted to a non-Thai then it would have to be sold to a Thai.

If it was non Thai land then it would be considered the personal property of the recipient, unless the laws of the other country applied in some way.

 

Note to self ...do assume things not clearly stated.

[offset]

A farang can gift a house to his daughter (or son) without owning the land he just have to pay for it at the Land Office which means that he has never owned the land but still gifted it to his child

 

TD you did understand my question correctly sorry I did not state that this was Thai land and we where talking about Thailand, I thought this site is called Thaivisa and is about the happenings in Thailand unless the Headline Topic states otherwise

 

TD thank you for you help

 

 

Edited October 10, 2017 by offset

[Minnehaha]

what if it is a car or a condo? 

[offset]

6 hours ago, offset said:

A farang can gift a house to his daughter (or son) without owning the land he just have to pay for it at the Land Office which means that he has never owned the land but still gifted it to his child

 

TD you did understand my question correctly sorry I did not state that this was Thai land and we where talking about Thailand, I thought this site is called Thaivisa and is about the happenings in Thailand unless the Headline Topic states otherwise

 

TD thank you for you help

 

 

Sorry I meant to say house and or land at the land office

[4MyEgo]

8 hours ago, offset said:

Sorry I meant to say house and or land at the land office

This has confused me somewhat, just to clear things up please.

 

We know a farang cannot own land, condo, villa, ok.

 

A farang can lease a house under a Usefruct if I have spelt it correctly, for up to 30 years on that land, but it is for the house only and nothing to do with the land, the house can be transferred but at a tax payable of 12.5% at the land registry office and if the house is made of timber the farang can dismantle it and take it away.

 

I am also assuming that the daughter/child is of a legal age, if Thailand has one, as I believe in most western countries the daughter or child would have to be of legal age. i.e. 16 and in some instances 18 unless it is done through a trust.

 

Would be good if someone can correct me here if I have been misquoted.

 

Time for breakfast 555 

[MikeyIdea]

17 hours ago, 4MyEgo said:

I am also assuming that the daughter/child is of a legal age, if Thailand has one, as I believe in most western countries the daughter or child would have to be of legal age. i.e. 16 and in some instances 18 unless it is done through a trust.

No, a child can be of any age in Thailand but there must be no debt, can't give a liability to a child

 I bought land for my daughter at the land office in Huaykwang Bangkok when she was 2 years old. The Chanote, N.S.4 is in her name only, she couldn't sign of course so they took her thumb prints. All legal guardians must sign the purchase agreement

 

17 hours ago, 4MyEgo said:

We know a farang cannot own land, condo, villa, ok.

There are circumstances where a farang can own land for a limited period of time. He can legally inherit land, must be sold within one year though. I don't know if laws concerning gifts have any applicable clauses that invalidate a formal written gift because the receiver legally can't own it. If not, then that can be done too and must be sold within one year

 

 -- Sorry I meant to say house and or land at the land office

I suppose that is a clarification regarding that land and house actually doesn't have to have the same owner at all, it normally has but that is it.

 

My ex wife leased land in Huaykwang 1992 but bought the house. I paid for it all so she left it to me when she divorced and I stayed there, got a second wife and we had a daughter. Lease ran out and I was asked if we wanted to buy the land. Sure I did so I paid and the land was transferred to my daughters name. Buy sell agreement for the land clearly state land only. Owner of the house (Gammasitt baan) at the Amphur clearly state my ex wife as owner

 

But now a question I do not know the answer to: If a Thai needs to borrow money and he uses his land as security, then it is registered at the back of the Chanote. Seller / lendee is to the left and buyer / lender is to the right. The owner who borrow money is moved from the right to the left and the lender is moved in to the right. If money is not paid back within stipulated time, then lender simply becomes the owner. Can a Thai borrow money from a farang and it's registered at the back of the Chanote? Anyone knows?

 

Good sample below

Column 1 Date, Column 2, Reason for transfer, Column 3 Seller, Column 4 buyer

 The Chanote below starts with give, then owner borrow, then owner clear debt, then owner borrow, then LENDER sells :) Ah, the guy who borrowed money the last time couldn't pay... 

Edited October 11, 2017 by MikeyIdea

[happylarry]

Hi Mikey, i have asked your question of my wife and she says she does not know for sure but thinks the answer is no.

Out of interest i have just found out that if a farang inherits land and can keep it for one year it never goes into his name, it stays in the Thai name until it is replaced by another Thai name. I had never thought about that before but that would probably answer your question wouldnt it? Because if the farang does not have a chanote in his name then it cant be used in any money borrowing situations.

HL

[MikeyIdea]

Yes, western inherited land stays in the deceased name until sold.

 

What about 30 year lease agreements? A westerner can have a 30 year lease on land and that is registered at the back of the Chanote. So it should be possible for a westerner to temporarily be registered there for that case

 

A lender is also at the back of a chanote temporarily and it's not as owner. I suppose not because we should have heard of it but anyone know for sure?  I suppose most land offices would refuse regardless of it actually was legal... :) 

 

 

Edited October 12, 2017 by MikeyIdea

[thaibeachlovers]

On ‎10‎/‎10‎/‎2017 at 6:05 PM, Minnehaha said:

what if it is a car or a condo? 

If bought by the farang BEFORE marriage they remain farang property. If bought after only 50%.

[thaibeachlovers]

On ‎10‎/‎11‎/‎2017 at 7:09 AM, 4MyEgo said:

This has confused me somewhat, just to clear things up please.

 

We know a farang cannot own land, condo, villa, ok.

 

A farang can lease a house under a Usefruct if I have spelt it correctly, for up to 30 years on that land, but it is for the house only and nothing to do with the land, the house can be transferred but at a tax payable of 12.5% at the land registry office and if the house is made of timber the farang can dismantle it and take it away.

 

I am also assuming that the daughter/child is of a legal age, if Thailand has one, as I believe in most western countries the daughter or child would have to be of legal age. i.e. 16 and in some instances 18 unless it is done through a trust.

 

Would be good if someone can correct me here if I have been misquoted.

 

Time for breakfast 555 

We know a farang cannot own land, condo, villa, ok.

Farang can own a condo if in a building majority owned by Thai.

 

A farang can lease a house under a Usefruct if I have spelt it correctly, for up to 30 years on that land,

Do you mean "own"? Can't take away a leased house whatever it is made of. Perhaps I don't understand what you are trying to say, as it's somewhat confusing.

[4MyEgo]

30 minutes ago, thaibeachlovers said:

We know a farang cannot own land, condo, villa, ok.

Farang can own a condo if in a building majority owned by Thai.

 

A farang can lease a house under a Usefruct if I have spelt it correctly, for up to 30 years on that land,

Do you mean "own"? Can't take away a leased house whatever it is made of. Perhaps I don't understand what you are trying to say, as it's somewhat confusing.

Lease a house under an Usefruct, or if timber can take it away if he buys the house, what's confusing about that, clear as daylight, a lease is a lease, even though I didn't say or buy it and take it away, it pays to mind read 555

[Minnehaha]

1 hour ago, thaibeachlovers said:

If bought by the farang BEFORE marriage they remain farang property. If bought after only 50%.

what if bought by the Thai ?

[cornishcarlos]

On 11/10/2017 at 7:09 AM, 4MyEgo said:

This has confused me somewhat, just to clear things up please.

 

We know a farang cannot own land, condo, villa, ok.

 

A farang can lease a house under a Usefruct if I have spelt it correctly, for up to 30 years on that land, but it is for the house only and nothing to do with the land, the house can be transferred but at a tax payable of 12.5% at the land registry office and if the house is made of timber the farang can dismantle it and take it away.

 

I am also assuming that the daughter/child is of a legal age, if Thailand has one, as I believe in most western countries the daughter or child would have to be of legal age. i.e. 16 and in some instances 18 unless it is done through a trust.

 

Would be good if someone can correct me here if I have been misquoted.

 

Time for breakfast 555 

 

You seem to be intent on confusing issues even more !!

Usufruct and a lease are 2 entirely different beasts... 

Usufruct can be for life, not just 30yrs. Plus it is for the land and any income derived from that land.

 

As for the OP question, no idea :)

[cornishcarlos]

On 11/10/2017 at 7:09 AM, 4MyEgo said:

This has confused me somewhat, just to clear things up please.

 

We know a farang cannot own land, condo, villa, ok.

 

A farang can lease a house under a Usefruct if I have spelt it correctly, for up to 30 years on that land, but it is for the house only and nothing to do with the land, the house can be transferred but at a tax payable of 12.5% at the land registry office and if the house is made of timber the farang can dismantle it and take it away.

 

I am also assuming that the daughter/child is of a legal age, if Thailand has one, as I believe in most western countries the daughter or child would have to be of legal age. i.e. 16 and in some instances 18 unless it is done through a trust.

 

Would be good if someone can correct me here if I have been misquoted.

 

Time for breakfast 555 

 

You seem to be intent on confusing issues even more !!

Usufruct and a lease are 2 entirely different beasts... 

Usufruct can be for life, not just 30yrs. Plus it is for the land and any income derived from that land.

 

As for the OP question, no idea :)

[4MyEgo]

1 hour ago, cornishcarlos said:

 

You seem to be intent on confusing issues even more !!

Usufruct and a lease are 2 entirely different beasts... 

Usufruct can be for life, not just 30yrs. Plus it is for the land and any income derived from that land.

 

As for the OP question, no idea :)

 

Yes Usufruct and a lease are 2 entirely different beasts, but even more so for a farang.

 

A Usufruct is available for the life term of the holder. A holder of the Usufruct right is allowed to lease or rent out the land and receive a payment pursuant to a rental agreement. The usufruct can be registered for the life term of the usufruct holder. This is in contrast to a normal lease agreement which has a maximum term of 30 years. A longer time period may be important for foreign persons seeking to reside in Thailand.

 

From my understanding on the above, as a farang, you cannot own land, therefore cannot have an Usufruct for life as it implies below, therefore a 30 years would be more appropriate:  

 

Under Thai law, the right to reside on property pursuant to a usufruct is not expressly stated. However, this right is generally assumed to be included within the right to a usufruct within the right to occupy.

 

The types of activities that are expressly referred to in the Thai law include obtaining the fruits of the land, mining, forestry and masonry. What is important to note is that all of these occupations are already expressly prohibited to foreigners pursuant to the Foreign Business Act B.E. 2542 (A.D. 1999)

 

Accordingly, since a foreigner would not be allowed to participate in these business activities, the only remaining activity would be the right to occupy. The right to occupy would include the right to reside on the property. Nevertheless, if a foreigner intends to use a usufruct for solely the right to occupy or reside on the property, and not for the expressed commercial activities as stated by the Thai law, it is possible that the Land Department official may decide that the usufruct is being used to circumvent the law and advise that the foreigner should register a right of habitation, which is a separate and different right, than a usufruct.

 

Which would mean a lease as I stated, i.e. 30 years

 

Usufructs are primarily intended for various commercial enterprises, such as agriculture, mining, and stone collection.

Although the Thai law does not necessarily prohibit usufruct for foreigners, the final decision to grant a usufruct is up to the discretion of the Land Department official.

 

An important consideration for a foreigner involved as well as the Land Department official is whether the usufruct is being used to circumvent the law forbidding the transfer of real estate ownership for non-Thai citizens. Usufruct, pursuant to the language of the Thai law, is primarily intended for various commercial enterprises, such as agriculture, mining, and stone collection.

 

Was strictly referring to farangs in my original reply to the OP post, so I don;t believe I am confusing or intending to confuse the issue at all

[blackcab]

31 minutes ago, 4MyEgo said:

...From my understanding on the above, as a farang, you cannot own land, therefore cannot have an Usufruct for life as it implies below, therefore a 30 years would be more appropriate:  

 

Your understanding is incorrect. A non-Thai person can be issued a usufruct for life.

[cornishcarlos]

2 hours ago, 4MyEgo said:

 

Yes Usufruct and a lease are 2 entirely different beasts, but even more so for a farang.

 

A Usufruct is available for the life term of the holder. A holder of the Usufruct right is allowed to lease or rent out the land and receive a payment pursuant to a rental agreement. The usufruct can be registered for the life term of the usufruct holder. This is in contrast to a normal lease agreement which has a maximum term of 30 years. A longer time period may be important for foreign persons seeking to reside in Thailand.

 

From my understanding on the above, as a farang, you cannot own land, therefore cannot have an Usufruct for life as it implies below, therefore a 30 years would be more appropriate:  

 

Under Thai law, the right to reside on property pursuant to a usufruct is not expressly stated. However, this right is generally assumed to be included within the right to a usufruct within the right to occupy.

 

The types of activities that are expressly referred to in the Thai law include obtaining the fruits of the land, mining, forestry and masonry. What is important to note is that all of these occupations are already expressly prohibited to foreigners pursuant to the Foreign Business Act B.E. 2542 (A.D. 1999)

 

Accordingly, since a foreigner would not be allowed to participate in these business activities, the only remaining activity would be the right to occupy. The right to occupy would include the right to reside on the property. Nevertheless, if a foreigner intends to use a usufruct for solely the right to occupy or reside on the property, and not for the expressed commercial activities as stated by the Thai law, it is possible that the Land Department official may decide that the usufruct is being used to circumvent the law and advise that the foreigner should register a right of habitation, which is a separate and different right, than a usufruct.

 

Which would mean a lease as I stated, i.e. 30 years

 

Usufructs are primarily intended for various commercial enterprises, such as agriculture, mining, and stone collection.

Although the Thai law does not necessarily prohibit usufruct for foreigners, the final decision to grant a usufruct is up to the discretion of the Land Department official.

 

An important consideration for a foreigner involved as well as the Land Department official is whether the usufruct is being used to circumvent the law forbidding the transfer of real estate ownership for non-Thai citizens. Usufruct, pursuant to the language of the Thai law, is primarily intended for various commercial enterprises, such as agriculture, mining, and stone collection.

 

Was strictly referring to farangs in my original reply to the OP post, so I don;t believe I am confusing or intending to confuse the issue at all

 

No, you said that a Farang can "lease a house under a Usufruct" !! You either get a lease or you get a Usufruct.

You also said " it's for the house only and nothing to do with the land" !!

 

Farang can definitely have a Usufruct for life on a Chanote title. This would allow them to reside on, and utilise the land ie rent part out. I have this in place now on one of our plots, in case my wife passes before me.

[4MyEgo]

12 hours ago, cornishcarlos said:

 

No, you said that a Farang can "lease a house under a Usufruct" !! You either get a lease or you get a Usufruct.

You also said " it's for the house only and nothing to do with the land" !!

 

Farang can definitely have a Usufruct for life on a Chanote title. This would allow them to reside on, and utilise the land ie rent part out. I have this in place now on one of our plots, in case my wife passes before me.

These were questions, not statements, i.e. seeking confirmation, to understand more, if it came across as if I knew what I was talking about, that wasn't how it was supposed to come across, as I know sweet f a about property in Thailand.

 

I am getting there slowly thanks.

 

So an usufruct can be granted by the Lands Department subject to certain criteria being met/confirmed by them, its not automatic, and it appears to be something similar to a life estate or life tenancy is you like, as we would refer to it back in the old country.

 

An Usufruct can be for life, but the land has to be on Chanote title, even though the law forbids a farang from cultivating the land for commercial use, in other words, they can grant you a usufruct for life, i.e. to live in the dwelling and rent the land, or part thereof to a third party, or you can grow your veggies on it, but not for commercial use.

 

The thing I don't understand is what the usufruct has got to do with, if your wife passes before you, I am assuming that means the usufruct continues until you pass, and the person inheriting the land also inherits you as the life tenant, therefore giving you absolute protection over the land until you cark it.

 

I have no intention of getting an usufruct, but having a property background from the old country its interesting to see how things work here as the wife has a few land parcels and we have kids, no doubt she doesn't have a will in place either and I would be inclined to give her a swift kick up the rear to get one in place.

 

Appreciate your feedback, its all a learning curve here. 

[cornishcarlos]

1 hour ago, 4MyEgo said:

These were questions, not statements, i.e. seeking confirmation, to understand more, if it came across as if I knew what I was talking about, that wasn't how it was supposed to come across, as I know sweet f a about property in Thailand.

 

I am getting there slowly thanks.

 

So an usufruct can be granted by the Lands Department subject to certain criteria being met/confirmed by them, its not automatic, and it appears to be something similar to a life estate or life tenancy is you like, as we would refer to it back in the old country.

 

An Usufruct can be for life, but the land has to be on Chanote title, even though the law forbids a farang from cultivating the land for commercial use, in other words, they can grant you a usufruct for life, i.e. to live in the dwelling and rent the land, or part thereof to a third party, or you can grow your veggies on it, but not for commercial use.

 

The thing I don't understand is what the usufruct has got to do with, if your wife passes before you, I am assuming that means the usufruct continues until you pass, and the person inheriting the land also inherits you as the life tenant, therefore giving you absolute protection over the land until you cark it.

 

I have no intention of getting an usufruct, but having a property background from the old country its interesting to see how things work here as the wife has a few land parcels and we have kids, no doubt she doesn't have a will in place either and I would be inclined to give her a swift kick up the rear to get one in place.

 

Appreciate your feedback, its all a learning curve here. 

 

Yes, it did come across as a statement, rather than a question..

 

My Usufruct is to protect my rights to live on my property should my wife pass away before me. The Usufruct and all rights obtained from it stay on the chanote title after sale.

I would more than likely transfer the title to a close relative of hers, however I would still be entitled to live and run a legitimate business from the property.

 

Hope that helps ? I might have got some of that wrong but pretty sure it's correct :)

[4MyEgo]

18 minutes ago, cornishcarlos said:

 

Yes, it did come across as a statement, rather than a question..

 

My Usufruct is to protect my rights to live on my property should my wife pass away before me. The Usufruct and all rights obtained from it stay on the chanote title after sale.

I would more than likely transfer the title to a close relative of hers, however I would still be entitled to live and run a legitimate business from the property.

 

Hope that helps ? I might have got some of that wrong but pretty sure it's correct :)

Thanks again, interesting stuff.

 

Did discuss with the Mrs earlier over breakfast about a will for the kids, with her reply being the typical Thai reply, no need my family know what I have is for the kids, with my reply being, ok no need then I might as well cancel mine, no need everybody know what they getting, with her reply being, ok I get will for the kids.

 

I have experienced first hand on many occasions what happens when someone passes, will or no will, but better chance with a will at hand.

Edited October 15, 2017 by 4MyEgo

[Jip99]

31 minutes ago, 4MyEgo said:

Thanks again, interesting stuff.

 

Did discuss with the Mrs earlier over breakfast about a will for the kids, with her reply being the typical Thai reply, no need my family know what I have is for the kids, with my reply being, ok no need then I might as well cancel mine, no need everybody know what they getting, with her reply being, ok I get will for the kids.

 

I have experienced first hand on many occasions what happens when someone passes, will or no will, but better chance with a will at hand.

 

 

With a Will you at least have a chance of your wishes being carried out. Without one you are largely in the hands of the family council. 

[4MyEgo]

5 hours ago, Jip99 said:

 

 

With a Will you at least have a chance of your wishes being carried out. Without one you are largely in the hands of the family council. 

Absolutely, I have a will back in Aus where my assets are, so my kids will be looked after in that regard.

 

As for her land parcels here, I told her that if she doesn't have a will, her family can do what they want with the land if she hasn't got a will and as she might trust her family with that, I don't so a will, is going to be forthcoming, I will keep my finger on her pulse and apply the pressure which won't be required, as she see's what I am talking about.

 

[thaibeachlovers]

On ‎10‎/‎14‎/‎2017 at 2:45 PM, Minnehaha said:

what if bought by the Thai ?

Belongs to whomever bought it, if before marriage.

[MikeyIdea]

Quite easy to answer that, it's not possible to give away something that someone else owns or perhaps no one owns

 

The "right" to occupy and use farm land with no Chanote is fuzzier. There was no distinct right from the beginning and the best that can be expected is that children will be allowed to continue to occupy and use farmland when parents die. The land department will come one day and formally mark the land with GPS and issue a Chanote to the one who farms the land

Edited January 9, 2018 by MikeyIdea