30 yrs rental contract, ex-wife mortgaged the house to get money !

[BEVUP]

13 hours ago, scorecard said:

 

 

I have a usufruct on the land title document. It's worked that the house cannot be sold without my written permission, even if my Thai son dies and the property is bequeathed to his Thai wife.

 

The wording used was specifically to the instructions my son gave to the lawyer who arranged the usufruct. Son wanted it this way to in a round about way protect his daughters. 

 

But I don't know if that's the standard / only wording possible.

 

Have you come across this

 

There is no limitation regarding the number and size of the usufruct. It is entirely legal to have several usufructs. There is no requirement to live on the usufructed land.

A standard usufruct agreement is provided in Thailand by the local land offices. Such usufruct can be combined with other contracts between the parties. Such second contract may state that the landowner can not sell, transfer or mortgage the land during the usufruct or that the usufructuary will own all improvements.

Such second contract can even be combined with the usufruct agreement and merged into one mixed agreement. However, such additions won’t and can’t change the scope or character of the usufruct. As a real right, the usufruct is not subject to an individual design or definition by the parties. The additional clauses, even if integrated with registered usufruct agreements, are just contractual obligations or simple promises between the parties which might be depending on the particularities of the case, not bind the legal successor of the owner.

·         Section 1298 CCC: Real rights may be created only by virtue of this Code or other laws.

The real test of the effectiveness of any legal instrument is not how well it appears to have been drawn up but what happens when you try to enforce it. The unhappy event of attempting to enforce an agreement in a Thai civil court may take place years after the instrument was instigated.

·         The usufruct is a real right (“right in rem”), not a contract like a lease contract. Its scope and character are defined by the law, not by any agreement with the owner. The contractual extension and enlargement of the usufruct is just a marketing myth.

[catman20]

i dont know why so many fools take risks like this, im sure nothing here in Thailand is 100% safe but for me i have my house in a company name it cost a bit more but you got more chance of hanging on to it. 

all this crap trusting other people with your future is BS. hope things work out for you and let this be a lesson for anyone considering doing what the OP done.

[MaeJoMTB]

3 minutes ago, catman20 said:

i dont know why so many fools take risks like this, im sure nothing here in Thailand is 100% safe but for me i have my house in a company name it cost a bit more but you got more chance of hanging on to it. 

all this crap trusting other people with your future is BS. hope things work out for you and let this be a lesson for anyone considering doing what the OP done.

My wife has her house in the banks name ...... for the next 23 years.

If she can find another mug prepared to make the monthly repayments, I'm happy to move out and on.

[KKr]

On 1/26/2018 at 4:14 PM, ukrules said:

If it's a proper registered lease (usufruct) then that should still be valid for the full 30 year period so I wouldn't worry too much about it.

 

If she doesn't repay a secured loan then they will take it off her (the property) but your lease will still be valid - assuming it's all registered with the land department, etc. In my opinion you would probably be better off with the bank owning it for the next 30 years or however long is left on the lease than your ex.

 

From what I've heard banks will lend against a lease encumbered property but it will be a greatly reduced amount compared to what you would be able to borrow without the lease being present.

 

If I were you I'd double check that the 30 year lease is all registered and above board at the land department.

 

If it's just an informal lease then you're screwed.

a lease is significantly different from a usufruct.
as I remember, differences are the house maintenance responsibilities, and what you can do with the land.
several English language Thai law sites explain in detail.
 

[KKr]

On 1/26/2018 at 5:56 PM, giddyup said:

I don't see it that way. He bought a house for his wife and himself, but in her name. The 30 years is just to give the falang a bit of protection if things go south, as in this case. I also have a 30 year lease, but I don't see anywhere where it says that the rent has been paid in advance for 30 years.

Sounds like it is time to find a good lawyer for you then,
unless your intent is to pay rent, in the amount set by the landlord, for the coming 29 years.

[heybuz]

On 26/01/2018 at 6:06 PM, JohnnyBKK said:

So the 30 yr lease is useless ? seriously ? she can just sell the house to whoever she wants ?

is your name on the deed, if so you can sue, and she can only mortgage the land not the house.the deed should have her name on the left column as receiver of the property as your name on the right as responsible for the property.thats if done with your interests in mind.

[giddyup]

9 minutes ago, KKr said:

Sounds like it is time to find a good lawyer for you then,
unless your intent is to pay rent, in the amount set by the landlord, for the coming 29 years.

You are right, I had a look this morning and the amount in baht is specified on the contract.

[KKr]

2 minutes ago, giddyup said:

You are right, I had a look this morning and the amount in baht is specified on the contract.

So no lawyer referral commission for me then, well, can't win them all ;-)
Glad you do not need the Lawyer.
 

 

[KKr]

7 minutes ago, heybuz said:

is your name on the deed, if so you can sue.

even if an encumbrance is on the deed, the ownership of the property can change ( unless that is prohibited in a pre-nup. )
However the encumbrance cannot be cancelled without your consent,
and change of ownership does not affect your rights.

[KKr]

55 minutes ago, catman20 said:

i dont know why so many fools take risks like this, im sure nothing here in Thailand is 100% safe but for me i have my house in a company name it cost a bit more but you got more chance of hanging on to it. 

all this crap trusting other people with your future is BS. hope things work out for you and let this be a lesson for anyone considering doing what the OP done.

Unless it is a BoI company, you are depending on your Thai majority shareholders. Do you know them ?
Usufruct for land and Superficies for a House seem to work well for life, however, one cannot sell the house or land, as the case may be, without the owner's cooperation.

[shadowmaster1971]

Interesting read so far on this topic.  When I first read the topic heading I thought what is the problem, his ex-wife

has every legal right to mortgage the house, unless she doesn't actually own the house then there is a significant problem and issue.

 

What people seem to not understand, is that the land and the house which sits on the land can be mutually exclusive or inclusive.

 

Remember leasing land is just that.  The structures that sit upon the land would be subject to other agreements, unless incorporated into the lease documentation of the land.

 

As for the house and structures on the land  these can be owned separately.  A foreign national cannot own land but can own the structures that sit upon the land.  i.e if your wife owns land and you as a foreign national builds a house on it, then you need to document legally that you own the house and have put in place the appropriate lease structures (beforehand) to do so and access the house.

 

It is important that any lease structure runs with the title of the land, i.e in that whenever the land is sold the lease continues in which the new owner is legally obligated to adhere to lease agreement, they continue on the responsibility of being the landlord. 

 

So if your ex or even current wife mortgages the property you share (that being the land and the house/structures upon the land), then they are perfectly entitled to do so in the absence of any legal documentation stating that someone else owns the structures.

 

So remember land ownership and house/structure (ownership)  can be two separate things, as well as "Land Ownership" and "Land Control" (eg a lease). 

 

[scubascuba3]

i dont know why so many fools take risks like this, im sure nothing here in Thailand is 100% safe but for me i have my house in a company name it cost a bit more but you got more chance of hanging on to it. 
all this crap trusting other people with your future is BS. hope things work out for you and let this be a lesson for anyone considering doing what the OP done.

Yes using a Company seems lesser of the two evils

[dotpoom]

On 26/01/2018 at 3:06 PM, JohnnyBKK said:

So the 30 yr lease is useless ? seriously ? she can just sell the house to whoever she wants ?

I do believe that you could have included in the contract that both of you have to agree before the house can be sold (or mortaged,I assume).

   You could have had the land office at the time of purchase, put an official stamp on the back of the Chanote stating that the house cannot be sold for 20, or30 yrs.

   Maybe too late for that now unfortunately...so sorry for bringing it up.

[steven100]

well ,  I guess there's two things you can kiss goodbye ....  the wife  !   and well,   you know the other.

[shadowmaster1971]

15 minutes ago, dotpoom said:

I do believe that you could have included in the contract that both of you have to agree before the house can be sold (or mortaged,I assume).

   You could have had the land office at the time of purchase, put an official stamp on the back of the Chanote stating that the house cannot be sold for 20, or30 yrs.

   Maybe too late for that now unfortunately...so sorry for bringing it up.

@ JohnnyBKK - yes effectively she can in the absence of anything else stating that she doesn't own the house.

 

@dotpoon - I would imagine the land office would put a stamp on the chanote if there was a legal agreement/document between the owner of the house and the tenant stating so.  Otherwise it is a mute point.

 

It is important to understand that ownership and control of an asset "being land" are 2 separate things, hence you can own land but not control it, you can control land but not own it!  And in this case the house/structure siting upon the land!

[BEVUP]

36 minutes ago, KKr said:

even if an encumbrance is on the deed, the ownership of the property can change ( unless that is prohibited in a pre-nup. )
However the encumbrance cannot be cancelled without your consent,
and change of ownership does not affect your rights.

Read my post #61

A Prenup is just a contract between 2 parties ( you would have no right stating that the owner can't sell )

Because your Usufrut's interests are still protected if Land Deed was passed on

 

Those paragraphs were taken from a Thai Law site ( the best one I've come across yet, explaining all )

[BEVUP]

Also it's like a lot of us probably did

 

* Buy a house/land package in a Moo Baan & think a Usufrut or Lease will stop a Mortgage / Sale

 

* Same as having got the land in the Village, trot down to Land Dep & put a Usufrut on it at the same time of transfer

Then of cause build a house & not bother going to register it as yours 

[Donotdisturb]

555. Classic TIT. i *rent* houses in southern thailand since 1997 and have spent *less* sofar than buying after 21 years. My rent is 4500thb now for 2 bedroom 2 ac house in quite moobaan near sea. No thai wive involved either. I rent the girls too, sortof ?

[johnnyonesock]

there's a lesson to be learnt here

 

buy a condo in your own name before the marriage which allows you to keep it after the divorce

leave it in your will to any kids you may have with her

 

if you must buy a house in her name then put down a small deposit and get a 20 year mortgage thus ensuring that you can walk away at any time and keeping control of her as you are the provider

 

 

take note of any emotional drama that she may exhibit when performing the above actions which may reveal her true motives for being with you

 

 

[Donotdisturb]

2 hours ago, catman20 said:

i dont know why so many fools take risks like this, im sure nothing here in Thailand is 100% safe but for me i have my house in a company name it cost a bit more but you got more chance of hanging on to it. 

all this crap trusting other people with your future is BS. hope things work out for you and let this be a lesson for anyone considering doing what the OP done.

Your setup is risky too. The only convenient way imo is to rent dirt cheap and let loose of ego (ie. own). Why buy in Thailand? I see zero advantages. Houses increase little in value and most city-thais prefer new house over second hand house. My pal bought townhouse 9 years ago for 950.000. Tries to sell it now for 1.200.000. Its on the market for 8 months. Not sold yet.

[toughlove]

there's a lesson to be learnt here
 
buy a condo in your own name before the marriage which allows you to keep it after the divorce
leave it in your will to any kids you may have with her
 
if you must buy a house in her name then put down a small deposit and get a 20 year mortgage thus ensuring that you can walk away at any time and keeping control of her as you are the provider
 
 
take note of any emotional drama that she may exhibit when performing the above actions which may reveal her true motives for being with you
 
 

Outstanding advice. I have let go of a woman that I was crazy about when the housing demand surfaced. Walking away was painful but I still have a beautiful condo and plenty of fish in the sea

[Autonuaq]

You forgot to register at the land department that you are allowed can stay in the house till you die.

Cotst only 300 thb.

 

If she want to put a mortage on it then they would ask for the rental contract.

 

in that contract supposed to put in that you have the same terms and conditions with the new owner as the previous or current owner.

 

You also should have put a contract with your wife about the land and when sell or use it for any kind of loans or debts coverage.

[473geo]

Why buy/build a house 

 

Well for a little 'back pocket' money outlay

 

A home and security for my wife and family

A modest home fashioned to our liking - built by people employed from the village so good PR

No further monthly outlay

 

I know this may come as a great shock to many of you, but we have also built a new home for the cattle - I have not granted them a usufruct -  we occasionally kick them out!!

[MaeJoMTB]

11 minutes ago, toughlove said:

Outstanding advice. I have let go of a woman that I was crazy about when the housing demand surfaced. Walking away was painful but I still have a beautiful condo and plenty of fish in the sea

My misses sabotaged her two first house purchase attempts.

House 1. She conspired with the owner to up the price by 500,000bht (and split 50/50)

House 2. She cancelled the home loan from the bank at the last moment expecting me to just pay cash.

House 3. The 27 year home loan went through, and we have been living in her house for the past 4 years.

 

Yes, I am a mug to have kept going ................ but I quite like her even if she isn't trustworthy.

[theguyfromanotherforum]

1 minute ago, 473geo said:

Why buy/build a house 

 

 

 

A home and security for my wife and family

A modest home fashioned to our liking - built by people employed from the village so good PR

No further monthly outlay

 

I know this may come as a great shock to many of you, 

 

Having old fools buy houses for wife and family hardly comes as a shock.

 

No further monthly outlay?

 

So, I guess a wife who asked a house for her and family has no further demands regarding monthly allowance?

 

Yes, that would be a bit shocking but maybe she love you true.

[Donotdisturb]

6 minutes ago, 473geo said:

Why buy/build a house 

Well for a little 'back pocket' money outlay

 

Also here i dont agree. Your intentions are noble but i have much more financial return investing my spare money in something else than a thai house. Ok i have no "missus" and if i were to ever have a missus here i'd get me one with 2 houses already. Most of my thai friends have several properties. The other day we went checking large townhouse, old but ok, for only 800.000 thb. The people who sell it bought it for 450.000 20 years ago. I cant see that as great "return" taking into account how much the banks take here!

[CanuckThai]

Ok, ok, ok.  After reading through this, what is the best strategy, when creating an agreement, when I go see the lawyer?  My wife is recently the proud owner of 3+ Rai.  Do I ask for a lease agreement, a usufruct or both, and what other positive  stipulations can withstand the courts (if need be).   I paid for the land, registered it (signed the typical waivers at registration).   So at this point, before I even bring a shovel or plant a tree, I'm looking to cover my *rse.  The wife is ok, not many sick buffalo emergencies, not many financial catastrophes.....but she is still prone to show the tears when one of her sisters (3), has an absolute skid.  I know if I gave her the financial reigns....we'd have a yard full of saffron robes, soi dogs and all the local one eyed, peg leg karaoke box carrying monkeys.

[473geo]

3 minutes ago, theguyfromanotherforum said:

 

Having old fools buy houses for wife and family hardly comes as a shock.

 

No further monthly outlay?

 

So, I guess a wife who asked a house for her and family has no further demands regarding monthly allowance?

 

Yes, that would be a bit shocking but maybe she love you true.

You've lost me as you meander off into your own imagination...and guesswork on your own fabrications

[MaeJoMTB]

4 minutes ago, CanuckThai said:

Ok, ok, ok.  After reading through this, what is the best strategy, when creating an agreement, when I go see the lawyer?  My wife is recently the proud owner of 3+ Rai.  Do I ask for a lease agreement, a usufruct or both, and what other positive  stipulations can withstand the courts (if need be).   I paid for the land, registered it (signed the typical waivers at registration).   So at this point, before I even bring a shovel or plant a tree, I'm looking to cover my *rse.  The wife is ok, not many sick buffalo emergencies, not many financial catastrophes.....but she is still prone to show the tears when one of her sisters (3), has an absolute skid.  I know if I gave her the financial reigns....we'd have a yard full of saffron robes, soi dogs and all the local one eyed, peg leg karaoke box carrying monkeys.

In the immortal words of WoPR ...... The only winning move is not to pay play.

[BEVUP]

9 minutes ago, MaeJoMTB said:

My misses sabotaged her two first house purchase attempts.

House 1. She conspired with the owner to up the price by 500,000bht (and split 50/50)

House 2. She cancelled the home loan from the bank at the last moment expecting me to just pay cash.

House 3. The 27 year home loan went through, and we have been living in her house for the past 4 years.

 

Yes, I am a mug to have kept going ................ but I quite like her even if she isn't trustworthy.

Same here

& all these people that keep saying " one should of had a contract " that entitles them to say if an owner of a property can sell or not are just dreaming 

I notice the Head Gambler took the risk (just like any Loan shark ) to get the loan registered on the Chanote (maybe hopping the Falang will cough up )

So he will now be stuck with a property for yrs