Usufruct denied in Samui

[GalaxyMan]

Well, reality is a harsh mistress and I met the biatch yesterday at the land office in Samui. My GF & I went with the builder of our new house to register the sale and get an usufruct. We were sent to the head guy whose desk is in the middle of the whole crazy mess, 2 plastic chairs in front of it. I took one, while the GF took the other and the builder stood next to her. Not understanding enough Thai, and southern accent at that, I could see by the faces of the builder and my GF that they didn't like what they were being told. We were at least 5 minutes at this guy's desk and he never once even looked at me, made it a point not to. Maybe he doesn't like sky-blue hair? ???? After we had been dismissed, and that's the only way to describe it, it was explained to me that the only thing the guy did was lay out all of the possible illegal things that might be happening, such as acting as a proxie to get around land ownership rules, etc. He further said that there are no usufructs given to farangs, only Thais. The GF was rightly upset, as he was insulting her, but she is a typical Thai who ALWAYS defers to perceived authority without any resistance. Such a cowed people.

 

We registered the property and were given two documents; one, a chanote for the land, and another, the title deed for the house.

 

I have a couple of questions. First, is there any legal way to appeal/protest the arbitrary and unfair (unfounded, baseless suspicions) decision of the land office's head guy? Secondly, does having the two documents, the chanote and the title to the house, mean that they are separate? The builder told us that the land and the house were one piece when we had asked him. If so, can the house be 'sold' to me so that my name would be on the title deed, while the chanote for the land would remain in the GF's name, for which she could give me a 30-year lease if we have no way to get an usufruct?

Edited March 27, 2019 by GalaxyMan

[phetphet]

I cannot answer your questions, but I can tell you what I have been told.

 

After years of being like the wild west, with uncontrolled building, buying and selling of land, and dodgy company setups, the DSI are scrutinising all property transactions going through the land office on Samui. 

This is probably causing the people there to be a lot stricter.

 

Only advice maybe to get a Thai lawyer who knows his way around this stuff.

 

 

 

 

 

Edited March 27, 2019 by phetphet

[Peterw42]

A lot of your post makes no sense, what sale were you registering ? Doesnt your GF already own the land, otherwise why build a house on land you dont own yet.

Why would you take a builder to do a userfruct, thats something a lawyer would do.

There is no such thing as a title deed for a structure. A chanote is the title deed.

Its sounds like you have built a house on land that belongs to someone else or is leasehold, already has a userfruct on it.

You go to the land office to transfer ownership of land, not sure what you mean by register a sale etc.

Edited March 27, 2019 by Peterw42

[blackcab]

You can take the matter to the Administrative Court. It will be costly and it will take quite some time.

 

The question is, if the matter is investigated, can your girlfriend prove that she paid for the land purchase from her own funds? Did she actually have that kind of money in her bank account before she met you?

 

If she did, what was her reason to buy land then give a foreigner the rights to the land for many years (or possibly for your lifetime)? Could she explain why she spent her own money in this way? Economically, it has to make sense. Remember that she will tell the truth about this if she is questioned.

 

If she didn't have the money to purchase the land before she met you then it does look like proxy ownership, which is not allowed.

 

Would a 30 year lease work for you?

[sometimewoodworker]

44 minutes ago, GalaxyMan said:

We registered the property and were given two documents; one, a chanote for the land, and another, the title deed for the house.

 

I have a couple of questions. First, is there any legal way to appeal/protest the arbitrary and unfair (unfounded, baseless suspicions) decision of the land office's head guy? Secondly, does having the two documents, the chanote and the title to the house, mean that they are separate? The builder told us that the land and the house were one piece when we had asked him. If so, can the house be 'sold' to me so that my name would be on the title deed, while the chanote for the land would remain in the GF's name, for which she could give me a 30-year lease if we have no way to get an usufruct?

I think that it is unusual to have a title deed for the house, but if you have one then it certainly can be in your name.

 

The head of the land office has the final say on both an Usfruct and registering a 30 year lease. He is wrong about Usufructs only being given to Thai people, I have one,

 

You can get a lawyer to represent you and draw up an Usufruct for you and he can try to force the issue.  Or you can try to get a 30 year lease, it will have to be registered with the land office.

[sonos99]

In Phuket it is not unusual to have separate title for the house and land. A farang will own the house and have a lease on the land. The lease can only be for a maximum of 30 years. 

[Peterw42]

14 minutes ago, blackcab said:

You can take the matter to the Administrative Court. It will be costly and it will take quite some time.

 

The question is, if the matter is investigated, can your girlfriend prove that she paid for the land purchase from her own funds? Did she actually have that kind of money in her bank account before she met you?

 

If she did, what was her reason to buy land then give a foreigner the rights to the land for many years (or possibly for your lifetime)? Could she explain why she spent her own money in this way? Economically, it has to make sense. Remember that she will tell the truth about this if she is questioned.

 

If she didn't have the money to purchase the land before she met you then it does look like proxy ownership, which is not allowed.

 

Would a 30 year lease work for you?

This already sounds like some sort of bogus leasehold exercise. Koh Samui is already unique in that regard with lots of structures sold to westerners, on land that they dont own, or the seller doesn't actually own etc.

[taninthai]

I had a bit of an issue getting usufruct in krabi a couple off years ago,same thing had to go and see the boss man,,,,in my case they would not issue the usufruct on the same day as the sale of the land ,they claim it looks to suspicious ,so I had to wait one month Signed power of attorney over to a friend ,left all paperwork with them and 1 month later while I was out the country it was all sorted.

[GalaxyMan]

1 hour ago, taninthai said:

I had a bit of an issue getting usufruct in krabi a couple off years ago,same thing had to go and see the boss man,,,,in my case they would not issue the usufruct on the same day as the sale of the land ,they claim it looks to suspicious ,so I had to wait one month Signed power of attorney over to a friend ,left all paperwork with them and 1 month later while I was out the country it was all sorted.

That could be part of the problem. The builder did tell us to wait 30 days before trying to register a 30-year lease. Might be part of the same issue. I'll have the GF talk to her lawyer, ask him about it, see what sort of feedback he might have. Thanks.

[dotpoom]

6 hours ago, GalaxyMan said:

He further said that there are no usufructs given to farangs, only Thais. The GF was rightly upset, as he was insulting her,

How was that insulting her.. you say she is a Thai lady?

[scorecard]

6 hours ago, phetphet said:

I cannot answer your questions, but I can tell you what I have been told.

 

After years of being like the wild west, with uncontrolled building, buying and selling of land, and dodgy company setups, the DSI are scrutinising all property transactions going through the land office on Samui. 

This is probably causing the people there to be a lot stricter.

 

Only advice maybe to get a Thai lawyer who knows his way around this stuff.

 

 

 

 

 

There was quite a long thread on usufruct perhaps 4 to 6 weeks ago.

 

Usufruct has been used quite a lot for decades by Thai families and a usufruct can be recorded on the chanut in a farang name, nothing has changed and this was confirmed by a lawyer approaching the appropriate gov't office a month or so back.

 

Ultimately - about 3 years back my Thai son put a usufruct (my name on the usufruct) on his decent double sized land plot in a big moo ban in Chiang Mai.

 

Our trusted lawyer double checked in advance that it was all still possible, confirmed immediately, and the day it was recorded (son and our lawyer present) there was no discussion, LTO staff politely just went ahead and completed everything, out of the LTO office in about 1 hour, with the usufruct now showing on the original chanut held by my son and the LTO staff were serious to show my son it had been recorded on the copy held permanently at the LTO. 

 

 

[GalaxyMan]

2 minutes ago, scorecard said:

There was quite a long thread on usufruct perhaps 4 to 6 weeks ago.

 

Usufruct has been used quite a lot for decades by Thai families and a usufruct can be recorded on the chanut in a farang name, nothing has changed and this was confirmed by a lawyer approaching the appropriate gov't office a month or so back.

 

Ultimately - about 3 years back my Thai son put a usufruct (my name on the usufruct) on his decent double sized land plot in a big moo ban in Chiang Mai.

 

Our trusted lawyer double checked in advance that it was all still possible, confirmed immediately, and the day it was recorded (son and our lawyer present) there was no discussion, LTO staff politely just went ahead and completed everything, out of the LTO office in about 1 hour, with the usufruct now showing on the original chanut held by my son and the LTO staff were serious to show my son it had been recorded on the copy held permanently at the LTO. 

 

 

Exactly how it's supposed to be done, too. What happened to me was just an arbitrary decision not based upon anything but his power to say no.

[GalaxyMan]

50 minutes ago, dotpoom said:

How was that insulting her.. you say she is a Thai lady?

By implying that she was trying to do something illegal, to circumvent the law. Since she is doing nothing of the sort, it was insulting to her to be accused like that.

[crazykopite]

6 hours ago, sonos99 said:

In Phuket it is not unusual to have separate title for the house and land. A farang will own the house and have a lease on the land. The lease can only be for a maximum of 30 years. 

I might be wrong but I was under the impression that in Thai law a lease on a private property can be for 30+30 years if done at the same time and on a commercial property it is 50 +50 . A few years back there were developers selling with 30+30+30 leases on private properties however I have never come across this in any of the regulations.

[Oxx]

28 minutes ago, crazykopite said:

I might be wrong but I was under the impression that in Thai law a lease on a private property can be for 30+30 years

 

The extension is unenforceable should the land owner refuse.

[BritManToo]

8 hours ago, GalaxyMan said:

We registered the property and were given two documents; one, a chanote for the land, and another, the title deed for the house.

Should have refused to buy and walked out.

Now your gf has a free house with no obligation to you.

 

Who's the fool?

[bkkcanuck8]

13 minutes ago, Oxx said:

 

The extension is unenforceable should the land owner refuse.

That about states it, anything over 30 years is unenforceable and thus you can only expect an extension at that time if it is worth it at that time... it is not worth the paper it is written on.

[Mavideol]

1 hour ago, GalaxyMan said:

Exactly how it's supposed to be done, too. What happened to me was just an arbitrary decision not based upon anything but his power to say no.

we are taking about Thailand and we all know different provinces interpret the law in different ways, because it was accepted in CM it doesn't mean it will be accept somewhere else.... good luck anyway

[sometimewoodworker]

1 hour ago, crazykopite said:

I might be wrong but I was under the impression that in Thai law a lease on a private property can be for 30+30 years if done at the same time and on a commercial property it is 50 +50 . A few years back there were developers selling with 30+30+30 leases on private properties however I have never come across this in any of the regulations.

You are wrong. The people advertising anything longer than 30 years were not writing a legally enforceable lease. Some of them have been found to be breaking the law and the lessee has been left with no lease at all not even the legal 30 years as the whole lease with the 30+30+30 was deemed to be breaking the law.

 

The longest lease is 30 years, I don't know if there is any difference between commercial leasing.

[xtrnuno41]

1 hour ago, crazykopite said:

I might be wrong but I was under the impression that in Thai law a lease on a private property can be for 30+30 years if done at the same time and on a commercial property it is 50 +50 . A few years back there were developers selling with 30+30+30 leases on private properties however I have never come across this in any of the regulations.

For Thai law only 30 years lease is working. You can add in lease, an intention for another 30 years after first 30 years are gone and even for another 30 years after that. They are just intentions.

However has no value in Thai law. If first 30 years are gone, you have to make a new 30 years lease with owner of land.

If the leaser refuses or whatever comes up with reasons, then you are out and have no rights in court. Then you have to "move" your house or break it down.

[jkcjag]

I have a usufruct arrangement for land on 3 Chanotes.  1 in Bangkok, 2 in Hua Hin. The one in Bangkok was quite straight forward...was done at the time of the land and house purchase in my wife's name, and cost 70 Baht. (Note: I do have a Permanent Residency in Thailand but I am not sure if that made any difference to the process or not...I don't think so).

In Hua Hin for the first one the agent demanded a bribe, B30,000. My wife complained and mentioned the simple procedure in Bangkok, but the agent insisted Hua Hin was different, and to avoid complications I paid.

For the second purchase in Hua Hin, different agent, but same demand. This time my wife objected and insisted that there was no such "fee" required in Bangkok, or for the previous time in Hua Hin (not true of course), and the agent didn't pursue the demand further. I noticed that in both Bangkok and Hua Hin offices there are CCTV cameras pointing at every desk. I rather suspect that the ones in Hua Hin are not recording at all, as the plain envelopes are handed over the counter for all to see.

I suggest go along with a lawyer such as the ones on the internet which explain the usufruct procedure clearly on their websites...such as http://www.isaanlawyers.com/downloads/usufruct-agreement-thailand/    https://www.siam-legal.com/realestate/Usufructs.php  They specialise in this. I doubt it costs much for the service. However, here are some quotes from the latter's website:

 

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

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 you specific circumstances."

[charliebadenhop]

In some countries, a lawyer can hold land as a proxy for his client.  Is that not legal here?

[connda]

Next time - take a lawyer and be prepared to pay tea money.

There is utopia an reality.  Which land do you live in?

[Khaeng Mak]

Obtaining the usufruct is entirely legal so you are being blocked by the personal discretion of an official.  Thus there is only two possible solutions.  One is to sue the official. The other is to offer them tea money. Just do your homework to ensure what is the cheapest solution.

Edited March 27, 2019 by Khaeng Mak

[rumak]

50 minutes ago, Mavideol said:

2 hours ago, GalaxyMan said:

Exactly how it's supposed to be done, too. What happened to me was just an arbitrary decision not based upon anything but his power to say no.

we are taking about Thailand and we all know different provinces interpret the law in different ways, because it was accepted in CM it doesn't mean it will be accept somewhere else.... good luck anyway

Well, Mr Galaxy.   First let's look at your cute add-on :  

Stupidity should be painful to the stupid, too.

Religion is a form of mass mental illness whereby people try to evade responsibility for their own thoughts/actions and blame someone/thing else.

 

Leaving aside the religion reference.....  I have noticed that people using the word STUPID  here in Thailand are often the ones who are having problems.   And stupid is of course ALWAYS directed at others , for heaven forbid it might be themself.   TO ME  it sounds like your course of action was not well thought out.  FACT:  the "head man"  can in most if not all situations make the decision based on his power.  STUPID ?   well,  If we had a thread asking people to list all the things they find stupid it would set a Guinness world record.   On the other hand,  people taking the time to learn how things work and then dealing with it wisely would be a very short list.

I don't mean this to be a lecture.   Just relating my experience:   The less arrogant I acted when talking to officialdom (anywhere)  the better results i got.  Do I like groveling ?  Hell no !   But I do like getting my way.   If you owned a house and a potential renter came and acted disrespectful to you would you rent to him?   I am sure HE would not think he was being disrespectful.  But you have the power, right?

So,  sorry,  not renting to you.

You are now pretty much assured that you are not on the good side of the head man.  Try to think how you can still get what you want.  And next time you go to an office,  practice that groveling .  Of course you can come back and berate me with how you don't put up with that  sheeet.   And one more thing,

learn Thai as fast as you can if you want any serious input on how things get done. 

 

  2

[rumak]

29 minutes ago, jkcjag said:

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

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 you specific circumstances."

YEP........  

[rumak]

34 minutes ago, charliebadenhop said:

In some countries, a lawyer can hold land as a proxy for his client.  Is that not legal here?

Funny Jokes | Sharks and Lawyers Joke | Comedy Central

 

lot of reality in some jokes..........

[scorecard]

1 hour ago, jkcjag said:

I have a usufruct arrangement for land on 3 Chanotes.  1 in Bangkok, 2 in Hua Hin. The one in Bangkok was quite straight forward...was done at the time of the land and house purchase in my wife's name, and cost 70 Baht. (Note: I do have a Permanent Residency in Thailand but I am not sure if that made any difference to the process or not...I don't think so).

In Hua Hin for the first one the agent demanded a bribe, B30,000. My wife complained and mentioned the simple procedure in Bangkok, but the agent insisted Hua Hin was different, and to avoid complications I paid.

For the second purchase in Hua Hin, different agent, but same demand. This time my wife objected and insisted that there was no such "fee" required in Bangkok, or for the previous time in Hua Hin (not true of course), and the agent didn't pursue the demand further. I noticed that in both Bangkok and Hua Hin offices there are CCTV cameras pointing at every desk. I rather suspect that the ones in Hua Hin are not recording at all, as the plain envelopes are handed over the counter for all to see.

I suggest go along with a lawyer such as the ones on the internet which explain the usufruct procedure clearly on their websites...such as http://www.isaanlawyers.com/downloads/usufruct-agreement-thailand/    https://www.siam-legal.com/realestate/Usufructs.php  They specialise in this. I doubt it costs much for the service. However, here are some quotes from the latter's website:

 

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

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 you specific circumstances."

QUOTE:

 

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

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 you specific circumstances." "

 

This cut and copy from where? Is it direct from the official English translation of the Thai version of the law?

 

Or, is it cut and paste from the interpretation of a law firm?

 

Or what?

 

I refer back to my earlier post #11:

 

When my Thai son visited our lawyer in CM on this subject our lawyer contacted a much more experienced lawyer well acquainted with this subject and he called the related government ministry in Bkk, their statement was that usufruct is well established in Thai and has been for decades and is used widely and often by Thai families and the law on this subject is national law, applicable universally / consistently  in all provinces. 

 

Different point, farang having PR has no bearing on the availability of usufruct, the usufruct can quote the name of any foreigner legally in Thailand (if the Thai owner of the property agrees of course). 

 

Further re my post #11, there was a very small fee and no suggestion or hint of tea money (Chiang Mai LTO).

 

Edited March 27, 2019 by scorecard

[khunPer]

8 hours ago, GalaxyMan said:

That could be part of the problem. The builder did tell us to wait 30 days before trying to register a 30-year lease. Might be part of the same issue. I'll have the GF talk to her lawyer, ask him about it, see what sort of feedback he might have. Thanks.

Listen to the builder, he knows better about Samui Land Office.

 

Using an experienced local real estate law firm that knows all presents regulations, and the right way to do things at the Land Office, is often the best solution; and be patient not to rush things too fast. Some land offices are said to be reluctant to register a usufruct in favor of a foreigner (I have no experience from Samui, we don't hear much about usufruct being used here).

 

If your house if separated on it's own title deed, you can separate ownership of land and house; a foreigner can own a house. You'll need an up to 30-year lease option for the land. Tax of the lease, all 30 years, shall be paid upon registration.

 

However, re-selling the house might trigger an extra property business tax of 3.3%, as ownership has been less than 5 years; furthermore transfer fee and withholding tax need to be paid.

[KhaoYai]

A Usufruct has a limited term and conveys only the usage of land for that term. It does not convey ownership, in fact it should contain a date on which the agreement ends and possession returns to the registered owner.  It cannot therefore, be seen as a way of circumventing the Thai land laws which only specify ownership.

 

I hold the original chanotte for the land my house is built on (not in my name). I took that and a copy of a standard 30 year Usufruct (signed by the registered owner) to Pak Chong land office and had no problems - the difference was I took my lawyer with me. The lawyer's fee was 1500 baht I believe.

 

A Usufruct is legal for a maximum of 30 years and nothing in the Thai land laws states that it is only available for Thai nationals. To be legal, the Usufruct must be recorded on the Chanotte - it holds no water otherwise.

 

Before you consider taking this to court, I would get a lawyer to go with you - a decent lawyer will not have a problem pointing the land office manager to the error of his ways. At the very least he would ask the manager to point out the section of Thai land law that he says prohibits foreigners from holding a Usufruct.