RealEstate agents still use the company structure to own land

[Khun Jean]

I just had an exchange on Facebook with a real estate agent. It surprised me that they still use the old company, Thai nominee company structure as a way for foreigners to own land.

I have changed the names of course but i found the answer interesting. Have a read and please comment.

 

This was the ad:

************* - 2018 is time for investment. This new year we expect high growth in Thailand and Samui. With a great numbers of tourism and greater quality of life, Samui is now turning to be a qualitative destination. 
Today, MO Immobilier is happy to propose a large range of qualitative lands for sale. Hand-picked and personally checked by our team, we guarantee a good investment. 
A selection of our land for sale in Lamai with exceptional sea view, only 2 minutes drive from Lamai city center. 
Concrete access road and electricity on site
Easy Access (No sharp road)
Deep well access and natural river
Chanot ownership 
From 1 to 7 RAI ( 5 plots)
From 5 to 7 Millions/RAI 
Please do not hesitate to contact us directly (*********** or ******) **These are both Foreigner names ** 
01234567890
************@******.com

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Me: How do you guarantee a good investment? You put funds in an escrow account? Seriously curious!

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They: Dear sir, thank you for your comment. We do guarantee secured, legal and checked investment with our lawyers and Thai partners. Please do not hesitate to get back to us for more informations. With my kind regards, ***********

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Me: As foreigners can not own land you probably mean starting a company to own the land which is forbidden by law. Otherwise it is a 30 year lease which is a deprecating asset. I don't see how you offer 'guarantee', 'secure' or 'legal' as the law does not allow it. It is irrelevant what your lawyers and Thai partners tell you. When in doubt read http://www.samuiforsale.com . As you seem to be in the real estate business i suggest getting up to speed and read it too.

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They: Dears Sir, Sorry for the delay it seems that my previous reply has been removed from the discussion. So to get back to the term "guarantee" that we use in this context as a verb meaning " providing a formal assurance or promise, especially that certain conditions shall be fulfilled relating to a product, service, or transaction". In this case, we do guarantee the following of our client purchase procedures with an assistance in the legal steps. To refer to your article, I am afraid I do not see in any of the article that it is illegal to buy a land with a Thai limited company. However, as a real estate directors and developers, we have been owning a couple of lands in Samui along with projects for many years and never had any problems. Allow me to say that if limited company could not buy lands, most of the big chain of hotel will not take the risk to buy enormous piece of land or even hills to build their buildings. Also, the correct article about the law is : " Though Thai Property Laws prohibit a foreigner from owning land in Thailand, there are other alternatives to owning land in Thailand.
Using A Company
A foreigner may own a land in Thailand in a name of Thai company (at least 51% of shares are Thai and 49% are foreign). This can be done as a Thai Limited Company or a registered Thai Partnership. The most common form of company registered in Thailand is the Thai Limited Company. If a company is going to support a work permit application, a two million baht capital is required for each work permit." We do have great lawyer in Samui and Bangkok we are working with that could explain this procedure and help you to understand it better. We do understand that this procedure is difficult to understand by foreigners and that is why we guarantee the following of the procedures and its security. If you are interested in buying a land in Thailand please do not hesitate to contact us directly by email or phone : *********@*******.com or 01234567890. Thank you very much and wishing you a very nice day, with my kind regards, ***********

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Me: I understand the law quit well and what you posted is all true from a certain point of view. It is the part that is always left out and that is that for a company to own land it must perform legitimate business. So a foreigner can own land on the condition that the company is established and functioning as a real company (shareholders, meetings, accounting, employees, salaries etc etc.) before it is allowed to operate in Thailand. Using nominee shareholders is forbidden and currently under scrutiny by the government. Starting a business and just paying the bare minimum in taxes for non existing employees and non existent activities can put a foreigner, who puts the trust in an agent/broker/lawyer to know what they are doing, in very big troubles. Instead there are mechanisms available that do not need complicated things to be done to use the land. A 30 year lease (and not longer) or a usufruct (for 30 year or and that is the good part for life!). It will cost a few hundred baht to register. But i know Samui with all its specific dealings is a different thing. Still correct information and full disclosure is a must with any dealings.

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They: Not to forget that the house you build on the land is a freehold ownership and you pay yearly taxes up to 0.25 to 0.65% of the value of the property. This is still legal and correct way of investing in Thailand. 30 years leasehold ownership is another way of owning a land I totally agree with you. However, most of the foreigners who invest in Thailand do not believe in this procedure and are scared of it. The registration of the limited company is still a good way to own a land in Thailand even though the company does not have any business ongoing or when you have a real Thai partners in the company. I have known foreigners using this procedures for 25 years and never had any issues with it. We use it as well and never had an issues. We don't use the trust of our client to put them into troubles, that is why we clearly inform them of everything and follow them with every steps. I am happy to see that all the client we have been selling lands or houses are all very happy with our services and do not have any problems with the properties we have sold to them. We sell checked and legal properties only with correct chanot, access, building permit and legal documents.

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Me: So tell me how it is done. If a foreigner couple (around 60+) wants to buy some property and you suggest to start a company for that purpose who will be the shareholders and who will be the employees. Who will do the accounting, who will do the management. Who will make sure taxes are paid and which amounts would be necessary. How much money has to 'flow' through the company to 'fake' doing business. What would be the companies objectives when registering, etc etc. All in your example as a company that is just made to own the land and not have any business ongoing. Who will be registered as the 51% owner. How are the shares divided among the shareholders. How are you going to register the land in the companies name as 49% foreign is not accepted in many places but they will accept 39%. So who will be the owner of the other 61% of the shares? Does the 39% still have 'control'. Will the foreigner be a Director to maintain control, how about his work permit and minimum of 60.000 baht salary? Without details it is just an opinion.

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They: A foreigner couple of 60 years old will probably buy an existing property with the company already made for them and they will only need to pay for the transfer of name. If in the case they would like to buy a land and build their own house, we will then help them with the procedure. The company is opened with our lawyer and will be followed by the accountant company we have worked with for many years. They will then tell you how much taxes you will have to pay per year and will follow all the transactions for you. For the Thai partners, we provide with real Thai partners that will open the company with you. Until the transaction of the land, they will be director of the company. In Thailand, only the person who has the signature in the company has the power of everything not the shares in the company. The company will always be set as 51% Thai and 49% foreigners. Only the director will change after the transaction made and this will give to the foreigner all the power inside the company. This is a totally different way of processing and I understand your concerns. So in this case, if the Thai shareholders would like to ask anything about the company, he will not have any power of doing anything without the agreement of the director, the foreigner. Please if you have anymore concerns or questions, contact us directly by email ***********@*********.com. Thank you very much again. With my kind regards, ************

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Me: What you just described is illegal. I am surprised (well not really as this is Thailand we talk about) that you are still able to do this. For a foreigner it is not the best solution as they will bear the risk of the as you call it investment (i would call it a house even a home). Does your guarantee include a refund and can they hold you responsible and accountable for anything that will happen in the future. (rhetorical question). **********, are you the owner of the company or an employee. In case you are an employee you should start asking some questions as what you have been told is incorrect.

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They: Sorry Sir but are you interested in buying a property in Thailand or not? Because I am surprised the effort you put on discussing of this issue. My guarantee is that we are sure of what we are selling and procedure is perfectly legal I think you check this with a real lawyer and not informations you can find on Internet. Also, my guarantee that I will never sell anything that I have not tried it before. This we did. We invested for many years and this procedure is perfectly fine and legal with the law as all properties have been checked last year in Samui by the local and Bangkok authorities. If there is anything wrong with the procedure because of our services, we will surely refund it all as we keep the money in an escrow account until the procedure is completed. If something happens in the futur with the Thai government, economical problems, war or a coup, anything, this is a risk to leave in another country that yours. This, we obviously cannot guarantee that the World will keep going well, only God can guarantee this, I am afraid I don't pretend to be him/her. As you can see you live in Thailand also, then you take the risk in any moment to be kicked out of the country for any national restrictions or any other reason.

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They: If you take the exemple of the Brexit in England, many investors had to close their company and get back to their country. Even western countries could have their own risk.

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Me: Of course this is checked with a real lawyer (a pretty expensive one in Bangkok). Unfortunately you are mistaken. And that is ok. But if you use that wrong information to advise clients you do them a disservice. And i am not talking about laws that can change in the future. No one would be able to predict that. The laws that are current and in force now (although not enforced strongly) do not allow for what you just described. If you do not believe that or are told or instructed differently the i feel sorry for you. Maybe do some research and enlighten yourself. By doing what you are doing now you are taking a risk and put others at risk. Basically you guarantee them a future full of risk. Hardly good advice from a real estate agent. Why not just use a lease or usufruct and stay away from illegal constructions. I wish you the best and for your own good study this independently. What you have learned until now is not complete.

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They: Thank you very much for your comments and your critics. We are a company that helps and follows people with legal procedures organized with the ***** commercial chambers in Bangkok. Best is to know that all our clients are satisfied and happy with our services and this for many years already. With my kind regards, *********

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Me: Yes, you clients are happy and satisfied because they put trust in you and your company. Ignorance is bliss, a good match for Thailand. What they don't know and is actually not your concern anymore as you carry no responsibility and accountability, is that they are vulnerable for the consequences in the future. I know it is hard for you to accept that what you have learned from somebody is incorrect and illegal. That is why i gave you the advise to research it (maybe consult an expensive lawyer in Bangkok) by yourself independently. You can also be held responsible and that will happen some day. Stay safe.

Edited January 11, 2018 by Khun Jean

[Destiny1990]

Who u think are setting up these land companies owning structures?

[Khun Jean]

Many brokers/agents/developers. Especially in Samui/Phuket/HuaHin etc.

Above is very typical.  

[Destiny1990]

1 hour ago, Khun Jean said:

Many brokers/agents/developers. Especially in Samui/Phuket/HuaHin etc.

Above is very typical.  

Its Thai lawyers doing the legal work.

[Khun Jean]

In this case its Thai lawyers doing the ILLEGAL work. Without consequences as those are carried by the unsuspecting foreigner who just wants to buy a home.

And they are used by the brokers/agents/developers.

 

[Destiny1990]

1 minute ago, Khun Jean said:

In this case its Thai lawyers doing the ILLEGAL work. Without consequences as those are carried by the unsuspecting foreigner who just wants to buy a home.

And they are used by the brokers/agents/developers.

 

Yes maybe i was unclear its indeed Thai lawyers performing the illegal legal work.But when the company structure  goes tits up then its the house owners who are responsible.

[baansgr]

Thr company structure has been used for at least 15 years I know of and is still being used. I have yet to meet anyone that has lost their property because of this, yet have met literally thousands that have bought and sold without issues. I dont see the point of the post apart from scaremongering for no reason.The firstcarticle i read back in October 2002 stating compinies would be investigated and much more sabre rattling since.  

[Khun Jean]

You can run through a red light also for 15 years and never get a ticket. Does not make it legal. You can get drunk every day for 15 years and feel fine, it still is not healthy.

The point is nobody points out the risks that are very real. What do you think if potential buyers are told about this risk. Would they still proceed? I have no problem people using a company,  but shouldn't they be told about the current law and the risks it takes. Decisions made on the wrong information are the worst ever.

The law about a company with nominee shareholders is specifically mentioned and the law also mentions this. Also the need to do legitimate business is also clear. Then the director needing a work permit otherwise he can not fulfill a directors role is also clear.

Your post is just repeating what people with skin in the game are telling. You also have a conflict of interest?

What about when they started to really enforce the law starting next month. As with investment, past results is not a guarantee for the future.

 

 

 

 

[baansgr]

No interest and I own a condo. So next month every company will be investigated and property seized, belief that when see it. 

[scubascuba3]

It will unravel one day, question is when, 10 years, 20 who knows. When the authorities decide its time

[lkn]

On 1/13/2018 at 8:31 AM, baansgr said:

Thr company structure has been used for at least 15 years I know of and is still being used. I have yet to meet anyone that has lost their property because of this

I’m not aware of cases where the government has confiscated land, but there has been cases where the foreigner lost their property due to a scam, and because the foreigner is just a minority shareholder in a Thai company, rather than a property owner, it’s hard to make a claim through the legal system.

Edited January 14, 2018 by lkn

[Khun Jean]

Also a few that had to dissolve the company and get the land in a Thai name or sold within a year.

It is not something that does not happen!

At least the Thai system does not just confiscate but gives some time to resolve the matter. Don't know about the costs. People not really want to talk about that.