Does anyone know the procedure for getting a usurfruct in place

[steven100]

Hi all,

Has anyone gone through the complete process of getting a usurfruct in place.  Are there any specific foreigner requirements such as visa type or marriage to a Thai  ?

Costs involved ?

Forms required ?

Access to the forms ?

Where to lodge ?

Thanks to any info ...

 

[ThomasThBKK]

1) Get the template at the local land office, or better ask your lawyer todo it.
1.1) Be amazed that they don't know what a usufruct is if it's a small office. (optional)

2) ask lawyer to fill it out for you
3) setup a sales contract between you and the owner, usufruct value should be a high percentage of the land value. Make sure that money is really flowing even if owner refunds you later somehow. Pay taxes on this in the land office.

This is absolutely important as donations in thai law can be taken back at any time.

4) go to land office with the original chanote, your lawyer, the owner or a power of attorney from the owner and a person he trusts.

5) Get the usufruct registered to the back of the chanote. Make sure everyone brings his passport, thais also need to bring id card and housebook. Also bring copies of these documents as they most likely don't have a copy machine or say they don't want to copy it for you.

6) hopefully get your stuff registered.

7) Now if u plan to build a house there make sure to put the house, building permit, bills etc in your own personal name and not the chanotes owners name.



As you are asking for requirements. There are none.
BUT it gets harder if you are married, everyone you start to possess in a marriage is shares with your wife. Do NOT get married here if you want to buy property(not saying u should).

They will most likely ask you to sign a document that states that your wife owns whatever you bought and bought it with her own money and bla - if you are married.



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[steven100]

21 minutes ago, ThomasThBKK said:

1) Get the template at the local land office, or better ask your lawyer todo it.
1.1) Be amazed that they don't know what a usufruct is if it's a small office. (optional)

2) ask lawyer to fill it out for you
3) setup a sales contract between you and the owner, usufruct value should be a high percentage of the land value. Make sure that money is really flowing even if owner refunds you later somehow. Pay taxes on this in the land office.

This is absolutely important as donations in thai law can be taken back at any time.

4) go to land office with the original chanote, your lawyer, the owner or a power of attorney from the owner and a person he trusts.

5) Get the usufruct registered to the back of the chanote. Make sure everyone brings his passport, thais also need to bring id card and housebook. Also bring copies of these documents as they most likely don't have a copy machine or say they don't want to copy it for you.

6) hopefully get your stuff registered.

7) Now if u plan to build a house there make sure to put the house, building permit, bills etc in your own personal name and not the chanotes owners name.



As you are asking for requirements. There are none.
BUT it gets harder if you are married, everyone you start to possess in a marriage is shares with your wife. Do NOT get married here if you want to buy property(not saying u should).

They will most likely ask you to sign a document that states that your wife owns whatever you bought and bought it with her own money and bla - if you are married.



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Hi Thomas,   thanks for your good info ...

Not married but that's not a concern for me,  as I already built a house for the partners folks.

I paid for the land 5 yrs ago, built one house for the MIL,FIL as mentioned which they live in. I bought a wood bungalow that I put on the front of the block for me to live in, that's what the usurfruct will be for. 

Now the land would still be in the behind neighbors name (original owner)  as the Chanot hasn't been received or processed yet.

When it does finally get updated to the partners name ....

Then that's the Chanote that is needed for the usurfruct  ? correct ...

so basically, I can't proceed until the Chanote name is correct on the land  ?

I will get a lawyer to do it when that time arrises.

not sure on the sales contract if I already really own the bungalow  ?

The rest seems pretty straight forward and basic .... just complete paperwork and register at the lands office ??

Thanks.. 

[ThomasThBKK]

It's actually better if you get the usufruct from the original owner on the back of the chanote before the land is transferred to either your thai partner or a company setup.

 

It will be taken over to the new chanote, i suspect you are waiting on a subdivision of the said chanote? May i ask how long you are already waiting?

 

Normally a subdivision takes around 3 months to a year - so i am wobdering how you already have a house on there without having rhe chanote transferred to ur thai partner.

 

You should get the current owner to give you a usufruct of over the whole plot (that you bought) , that's better than not having anything at all.

 

Make him sign a sale agreement for the usufruct and state that the money has been already paid. Prepare to pay a hit of transfer taxes/fees at land office.

 

Also make sure you have a right of trespassing in there so no one can cut you of from your own land! It's noted on the chanote and says chanote x, y, z give right to trespass their land over a road, same for water and electricity. If you have access from a public road you won't need this tho.

 

 

Edit: ok you stated you bought 5 years ago, you should already have the chanote in your partners name. I would actually advise you to talk with a real estate lawyer and find out why that isn't the case. Normally u hand over the cash/barcheque in front of the land office and then you transfer the chanote.

 

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[KKr]

if the land has not been transferred into the upper two echelons of property rights, i.e. "confirmed possession" Nor Sor 3 and "ownership" Nor Sor 4 titles, a usufruct is not likely to happen since the Nor Sor 1 and 2, and other land documents are more like a right to use.
If I remember correctly, the process of conversion level 3 to level 2 can/does take up to 10 years, or at least the land cannot be sold for that period.
some background material here: 

https://www.samuiforsale.com/knowledge/thailand-land-title-deeds.html

Edited January 15, 2019 by KKr

[Kurtf]

This must be some form of legal procedure used in Europe because as an American, I have never heard of an insurfruct or whatever. Could someone explain what it is and what it is supposed to accomplish.

[KKr]

5 minutes ago, Kurtf said:

This must be some form of legal procedure used in Europe because as an American, I have never heard of an insurfruct or whatever. Could someone explain what it is and what it is supposed to accomplish.

see link above.
and also:
1 Usufruct in United States

• 1.1 Usufruct Definition 
  • • 1.1.0.1 In civil law. The right of enjoying a thing the property of which is vested in another, and to draw from the same all the profit, utility, and advantage which it may produce, provided it be without altering the substance of the thing. Perfect usufruct is of things which the usufructuary can enjoy without altering their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied; as, a house, a piece of land, animals, furniture, and other movable effects. Imperfect or quasi usufruct is of things whicii would be useless to the usufructuary if he did not consume and expend them or change the substance of them; as, money, grain, liquors. In this case, the alteration may take place. Civ. Code La. art. 525 et seq.; 1 Browne, Civ. Law, 184; Poth. Tr. du Douaire, note 194; Ayliffe, Pand. 319; Poth. ad Pand. tom. 6, p. 91; Lee. Elm. § 414; Inst. lib. 2, tit. 4; Dig. lib. 7, tit. 1, lib. 1; Code, lib. 3, tit. 33.
    •  

[ThomasThBKK]

It grants you the right of usage to a plot for lifetime.

It's literally the tranalation of usus to use in latin.

It's used all over the world and also in thailand.

It can be held by a foreigber and during the time of the usufruct he can do what he wants with the land plot (tho if u destroy already existing buildings u might have to restore them when it expires.)


Usufruct shouldn't be free tho and they also don't help much if you are married already.

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[GreasyFingers]

Mate, you have more posts than the majority on TVF and you know nothing about Land Titles. Where have you been.

 But ThomasThBKK has answered all of your problems.

[steven100]

13 hours ago, GreasyFingers said:

Mate, you have more posts than the majority on TVF and you know nothing about Land Titles. Where have you been.

 But ThomasThBKK has answered all of your problems.

I'm not a lawyer or land office official.  thanks

[GalaxyMan]

Got this from a lawyer when I asked about a usufruct.

 

Use Of Usufructs

Although the law does not prevent Foreigners from being able to apply to register a usufruct on land, however, this is still subject to the discretion of the Land Officer.

The person who enters into a contractual agreement with the owner for this right is called the "usufructuary". A usufruct will be registered in a similar manner to a lease of up to 30 years or for the life of the usufructuary.

Once registered, it will have effects as a servitude on the title. The owner of the land cannot sell or transfer the land until the servitude has been terminated.

The usufructuary must also keep the property intact and returned in the same position that it was when the usufruct was granted.

The usufructuary is responsible for the expenses for the management of the property, paying taxes and duties, and being responsible for interests payable on debts charged to it.

If required by the owner, the usufructuary is bound to ensure the property against loss for the benefit of the owner. They must pay the insurance premiums for the duration of their usufruct and your right is also registered on the title deed.

A usufruct interest expires upon the death of the holder of the usufruct and therefore cannot be inherited.

The Transfer Of Usufructs

Transfer to a Third Party

The beneficiary in a usufruct scenario may also transfer his rights to the usufruct to a third party according to the Civil and Commercial Code of section 1422.

The grantor of the usufruct, however, will still claim for damages caused by the third party directly against the usufructuary.

An interesting feature of usufruct is that the usufructuary can enter into a 30-year lease with a third party. So if the usufructuary signed a 30-year lease contract before his death, the lessee (tenant) will maintain the rights of the lease until its expiration.

Case Study: The Supreme Court ruling 2297/1998 states that the lessor (landlord) does not have to be the owner of the property. Therefore the usufructuary can rent out the land. Although in the event of the death of the usufructuary within the lease term, only the usufruct will be terminated but not the lease.

Transfer Through Inheritance

The usufructuary could transfer the right of using the land through inheritance.

However, it remains to be seen if the Land Department officials would allow a transfer of the rights to the land. There is no annual tax levied on the property compared with the 12.5 percent of the assessed or market rate rental value in the case of a registered lease.

Registering A Usufruct

There is nothing there is stated that restricts the grants of such usufructs. However, like all other rights in relation to property, it must be noted once again that the registration of such a right is upon the discretion of the Land Officer at the Land Department and may vary between locations. It is advisable that you contact a Lawyer or Solicitor to discuss your options in regards to your specific circumstances.

[happylarry]

As a more simple way of understanding the usufruct, i was told this years ago.......

In days gone by many Thai farmers would rent a piece of land and work the land and plant the crops and then just before the harvest was due the land owner would kick the farmer off the land and reap the harvest for himself. Because this went on the government brought in the usufruct to protect the farmers and their investment so they could do their work with no worries.

It made sense to me so I hope this helps others.....lol

HL

[topt]

On 1/16/2019 at 9:49 AM, GalaxyMan said:

The owner of the land cannot sell or transfer the land until the servitude has been terminated.

I think this part is incorrect?

 

My understanding is that the owner can sell to someone else but that the usufruct remains in force which is why most people would not be interested in buying a piece of land that already has an usufruct agreement on the chanotte.

[ThomasThBKK]

I think this part is incorrect?
 
My understanding is that the owner can sell to someone else but that the usufruct remains in force which is why most people would not be interested in buying a piece of land that already has an usufruct agreement on the chanotte.

Yes that's correct.

Selling the land doesn't invalidate the usufruct/lease/superficies/servitudes.


Same as a rental contract, selling the condo doesn't mean your rental contract is not enforceable anymore.

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[ricklev]

" An interesting feature of usufruct is that the usufructuary can enter into a 30-year lease with a third party. So if the usufructuary signed a 30-year lease contract before his death, the lessee (tenant) will maintain the rights of the lease until its expiration."

 

No land office is going to let that lease be registered.   Period.  Any  "lawyer" that even implies otherwise is clearly and completely a moron or a fraud or both.

Edited January 17, 2019 by ricklev