Usufruct denied in Samui

[KhaoYai]

16 hours ago, sometimewoodworker said:

Part 1 wrong

Part 2 and 3 correct 

 

That is correct 

Part 1 correct 

part 2 wrong

 

an Usufruct is not a lease and has different rules. It can be and often is for an indeterminate period. As it is completely legal for it to be for the lifetime of the Usufructee. There is no 30 year rule for an Usufruct however it always finishes on the death of the holder. It cannot be inherited.

 

The one thing the Usufructee can do that survives his/her death is grant a lease of the land

 

See the Thai court's ruling on the length of agreements last year.

[KhaoYai]

4 hours ago, sometimewoodworker said:

I have heard a different interpretation. I have heard of at least one case where land with an Usufruct has been sold.

The lawyer that drew up my Usufruct told me that land that is subject to a Usufruct agreement can be sold but the Usufruct will remain in place and the incumberance will pass on to the new owner.

[sometimewoodworker]

6 hours ago, KhaoYai said:

All agreements, including leases and Usufructs now have a maximum term of 30 years - that decision was made by the Thai courts last year.

I know of the decision regarding the length of a lease, it was mostly in response to the 30+30+30 leases that were being sold, and has completely invalidated some of them. They were clearly designed to circumvent the law.

 

i have not heard of anything relating to the usual "lifetime" clause of an Usufruct. And the two, Usufruct and lease, are very different contracts with different law governing them.

 

I rather doubt that they would have been included in the same contract ruling. It would have had to invalidate the lifetime Usufruct clause.

[CharlieH]

Reported flame post removed.

[scorecard]

4 hours ago, sometimewoodworker said:

I know of the decision regarding the length of a lease, it was mostly in response to the 30+30+30 leases that were being sold, and has completely invalidated some of them. They were clearly designed to circumvent the law.

 

i have not heard of anything relating to the usual "lifetime" clause of an Usufruct. And the two, Usufruct and lease, are very different contracts with different law governing them.

 

I rather doubt that they would have been included in the same contract ruling. It would have had to invalidate the lifetime Usufruct clause.

 

My lawyer advises that usufruct is well embedded in Thai law, as is the 30 year lease item and they are separate in law. And a judge could absolutely / arbitrarily not, as part of a decision on a specific case, change that/those law(s). Laws can only changed through parliamentary processes.

 

Side point: Lawyer says that there are processes (like 99% of countries, but in Thailand way less active than in many countries) whereby judges of a certain rank and other officials in the juristic process can suggest to much higher levels of officials that a law needs to be adjusted or the wording changed, because the current wording is ambiguous, causing confusion, inappropriate for strong and specific reasons, etc.  

 

Lawyer also says it's definitely not common practice for a judge to mention openly in court or in decision documents that he/she will make a reporting / suggestion to the higher authority that the written words in the published law should be changed etc., but even if the judge did mention it openly (highly unethical) that definitely doesn't mean that the law is automatically now changed and doesn't mean such comment can be seen as a precedent or as specific solid guidelines in a later case.

[Enki]

9 hours ago, KhaoYai said:

All agreements, including leases and Usufructs now have a maximum term of 30 years - that decision was made by the Thai courts last year.

No they have not. Facepalm.

[sometimewoodworker]

3 hours ago, scorecard said:

My lawyer advises that usufruct is well embedded in Thai law, as is the 30 year lease item and they are separate in law. And a judge could absolutely / arbitrarily not, as part of a decision on a specific case, change that/those law(s). Laws can only changed through parliamentary processes.

Rather as I thought and said.

 

AFIK The case/cases did not address the 30 year lease itself (as you say that would be out of remit) it was the legality of the 30+30+30 leases that were being contracted. It made clear that they were not valid as they attempted to extend the 30 year period. The way that some of them were written made the complete lease invalid (meaning the lessee had nothing). I think that others had unenforceable conditions of extension that were struck out, leaving the lessee with the remaining period of a 30 year lease.

[rwdrwdrwd]

13 hours ago, KhaoYai said:

All agreements, including leases and Usufructs now have a maximum term of 30 years - that decision was made by the Thai courts last year.

I was granted a lifetime usufruct this year (registered on the Chanote) without issue.

Do you have a link to this decision somewhere?

[KhaoYai]

19 hours ago, sometimewoodworker said:

I rather doubt that they would have been included in the same contract ruling. It would have had to invalidate the lifetime Usufruct clause.

I can only quote from what my Lawyer and his Thai associate lawyer told me. That is where my information on this subject comes from and I trust them both implicitly.

[sometimewoodworker]

6 hours ago, KhaoYai said:

I can only quote from what my Lawyer and his Thai associate lawyer told me. That is where my information on this subject comes from and I trust them both implicitly.

From personal experience and the personal experience of a friend, lawyers (including, but not limited to foreign lawyers in Thailand) have been known to be self important, over sure, arrogantly certain that their opinions are correct, people who talk out of an orifice not designed for conversion. Or in some cases just wrong.

 

Personally I would not believe that the 2 different kinds of contract would be affected by a single case. Also the lifetime clause available for Usufructs would probably not be able to be limited by any court but have to have legislation passed to change it. 

 

 

[GalaxyMan]

1 hour ago, sometimewoodworker said:

From personal experience and the personal experience of a friend, lawyers (including, but not limited to foreign lawyers in Thailand) have been known to be self important, over sure, arrogantly certain that their opinions are correct, people who talk out of an orifice not designed for conversion. Or in some cases just wrong.

Having best friends who are lawyers, I can assure you that they'd agree with your description of them. They'd also tell you that such things are prerequisites. ????

[scorecard]

1 hour ago, sometimewoodworker said:

From personal experience and the personal experience of a friend, lawyers (including, but not limited to foreign lawyers in Thailand) have been known to be self important, over sure, arrogantly certain that their opinions are correct, people who talk out of an orifice not designed for conversion. Or in some cases just wrong.

 

Personally I would not believe that the 2 different kinds of contract would be affected by a single case. Also the lifetime clause available for Usufructs would probably not be able to be limited by any court but have to have legislation passed to change it. 

 

 

 

Agree, and I add there are plenty of lawyers both Thai and foreign operating in Thailand who have no hesitation to deliberately say things which are wrong / incorrect, often aimed at adding further comment like 'you can't do that, but for 50,000Baht I can get it fixed', etc.

 

A different example, last year I was approached by a farang in my supermarket in Chiang Mai, my guess they were both about late 50s, from the US.

 

We chatted a bit then they started to talk about visas and I replied that I couldn't answer their specific question because I have PR (Permanent Residency - well over 20 years) and my knowledge of yearly etc., visas is quite poor.

 

They then asked me if it's true that the '10 years automatic PR rule is going to be changed to 20 years'?

 

I asked what they were meaning. Their response 'a non-Thai person who has physically been in Thailand for 10 years gets totally automatic PR, but about to be changed to 20 years'.

 

They continued, 4 years back they found a small visa agency (one person only, a farang) in CM.  The farang told them that to get a retirement visa for Thailand is extremely difficult and very few foreigners have it, but for 80,000Baht each (on top of the posted fees) he could get them retirement visas.

 

Plus this would set up a 10 year path to PR, but the visa renewal annually had to be done a month in advance with extra fees of 20,000Baht each and the renewal every year for 10 years had to be done by the same agent. Final fee 400,000Baht each, and he told them not to talk to anybody about this.

 

Then a few days before our accidental meeting at the supermarket the farang visa agent had contacted them to say 'sorry it's being changed to 20 years'.

 

All just a total scam. Also a case where the farang agent was keeping his fingers crossed that his clients would never discover his lies.

 

 

Another one, a farang man from OZ called me about renting my luxury house on Jomtien beach. He sounded genuine and I went to Pattaya to meet him.

 

In our conversation he mentioned that he had started work for a small newspaper in Pattaya, but after 1 week he resigned and moved to another newspaper.

 

The first newspaper was owned by a Thai lawyer, the lawyer had told the farang from OZ that newspaper reporters are exempt from work permits but it would be good for the lawyer to register the farangs name with the labour ministry, 5,000Baht every 6 months.

 

Then the guy moved to another newspaper, the owners brother (used the newspaper office) was a Thai lawyer. The farng asked him about work permits, the lawyers reply 'I don't give free advice', 5,000Baht and I'll advise you.

 

Advice was 'you don't need an individual WP because the company registration comes automatically with 10 WPs, and the names can be changed here in the office, no need to advise any gov't office. But you should be kind to the newspaper owner and give him 2 or 3 thousand Baht as a thank you.

 

 

[EricTh]

If an application is rejected, shouldn't there be a formal writing in a letter?

 

Verbal rejection is officially not accepted because that is not accepted by law.

[scorecard]

12 minutes ago, EricTh said:

If an application is rejected, shouldn't there be a formal writing in a letter?

 

Verbal rejection is officially not accepted because that is not accepted by law.

 

Application for what?

[KhaoYai]

8 hours ago, sometimewoodworker said:

From personal experience and the personal experience of a friend, lawyers (including, but not limited to foreign lawyers in Thailand) have been known to be self important, over sure, arrogantly certain that their opinions are correct, people who talk out of an orifice not designed for conversion. Or in some cases just wrong.

 

Personally I would not believe that the 2 different kinds of contract would be affected by a single case. Also the lifetime clause available for Usufructs would probably not be able to be limited by any court but have to have legislation passed to change it. 

 

 

Well I'll check on the info next time I see my lawyer, not top of my list though - my Usufruct clearly states 30 years from last year and it would be a miracle if I outlive it ????.

 

When I get a moment I will also try to find the article regarding the Thai court's ruling.

 

More to the point and 'On Topic' - the Land Office that refused to accept the OP's Usufruct was wrong to do so. I would visit again - with a lawyer.

 

Whilst some say that the head of the Land Office has the right to refuse the transaction, much like people say the head of an Immigration Office has the right to refuse visas - I would be very surprised if this supposed 'discretion' allows them to break the law.  The question is, how to challenge such decisions.

 

If the only way to challenge them is through the courts, doesn't that make a mockery of having a law in the first place?  Having said that, I do know that Nakhon Ratchasima Immigration were taken to court a few years ago when they made their own 'rules' up over a visa application - they lost. Whether the applicant got his legal costs paid as part of the ruling, I know not - I doubt it though.

[GalaxyMan]

29 minutes ago, KhaoYai said:

More to the point and 'On Topic' - the Land Office that refused to accept the OP's Usufruct was wrong to do so. I would visit again - with a lawyer.

Exactly our plan. We'll give the lawyer a power of attorney for that task and let him deal with it.

[sometimewoodworker]

1 hour ago, KhaoYai said:

Well I'll check on the info next time I see my lawyer, not top of my list though - my Usufruct clearly states 30 years from last year and it would be a miracle if I outlive it ????.

The Usufruct is a contract, as such it can be for a set period so yours for 30 years is an option, however it can and often is for the lifetime of the holder

1 hour ago, KhaoYai said:

Whilst some say that the head of the Land Office has the right to refuse the transaction,

You will find that it is not a case of some say. It is a case that a land office head can (and in a number of cases that I know of has) refuse to register a Usufruct. In the majority of cases the people applying have just waited for the office head to be changed and got their Usufruct. 

 

It is certainly possible that one or more has employed a lawyer and forced a land office head to register an Usufruct after it had originally been refused, I have not heard of that happening.

 

You clearly do not understand the way that the Thai bureaucracy functions or the way that the laws are written. It is NOT the same as in a western country. The ways the laws and rules are written almost always allows for local individuals to interpret the law differently from place to place, they are not breaking the law just interpreting it in a way you may not agree with. 

 

This also allows for changes without the requirement for new law.

[rickthailand]

i have had a usurfruct placed on the chanot 10 years ago, 5 years ago the land was

sold to another thai person there was no problem usurfruct remained on the

chanot and i DID Not have to give permission for the sale.

this was at chiang mai land office

 

rick

[GalaxyMan]

On 3/28/2019 at 7:41 AM, Oxx said:

 

I believe you're confusing usufruct with lease.  A usufruct can be legal for the lifetime of the usufructee - even if it's over 30 years.

Can you point me to the specific law, in Thai, that states this? The GF's lawyer says he can help, but he is of the opinion that an usufruct can only be for 30 years, which is better than nothing, or a lease.

[Oxx]

Thai Civil and Commercial Code, sections 1417-1428 covers usufructs.

 

Section 1418, in translation:

"A usufruct may be created either for a period of time or for the life of the usufructuary. If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary."
 

[GalaxyMan]

7 hours ago, Oxx said:

Thai Civil and Commercial Code, sections 1417-1428 covers usufructs.

 

Section 1418, in translation:

"A usufruct may be created either for a period of time or for the life of the usufructuary. If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary."
 

Many thanks.