usufruct/will with GF

[ChouDoufu]

thai GF is planning to buy house and land in her home province.

the plan is to get a 30yr (or lifetime) usufruct entered on the chanote when transferred.

next step is a will with me inheriting the property.

no plan at this time to marry, maybe someday.  i've read pre-marriage usufruct is preferred.

 

her parents are deceased, there are no children.

she has four sisters and two brothers.

 

if she sells the property, the usufruct passes to the new owner, remains valid.

i've read if married in event of death of wife, husband can stay indefinitely.

if GF dies, i inherit the property, but am i required to sell within one year?

(most likely would want to sell, just want to know legalities.)

[Bender Rodriguez]

19 hours ago, ChouDoufu said:

next step is a will with me inheriting the property.

error at line 1...

 

farang cannot own land, so if she dies, bye bye 

[sometimewoodworker]

23 minutes ago, Bender Rodriguez said:

error at line 1...

 

farang cannot own land, so if she dies, bye bye 

You are wrong. A farang can inherit land so becomes the owner. 
 

@choudoufu you have the mostly correct information the only correction is that however many times the land is sold, you as the usufructee keep control over it until you die or cancel the usufruct

[Metropolitian]

Same boat but slightly different sails.

 

Want to put myself on the Chanote, -usufruct- is the thing to do as I understood.

Townhouse, land and home are on the same deed, unmarried but not for long (actually the plan was this year but then along came C19).

Only difference is , home already bought, and it's in GFs mom her name.

 

At time of transfering, years ago, this was put on table but wiped away as  'cannot'.

Now I know, they were thinking about different things. (split home and land and put home in my name) And I didn't know the existence of the 'usufruct' and that it can apply on anything, even combo land+home.

 

 

Comment if I am wrong.

Comment if you have experience.

Comment if you have templates/sources in both Thai and English (not pointing to those law firm websites)

[xtrnuno41]

Usufruct is for life ( i thought), until you die, when she has died. Question is, if you get an usufruct not being married or even being married. However it 's a decision by landoffice, also on title deed. It can vary. There are obligations you have to follow.

 

It is the obligation of the usufructuary within the duration of the usufruct to shoulder the expenses incurred for the management of the property including the payment of taxes and government duties as well as the interest payable on debts charged upon it.

See : https://www.siam-legal.com/thailand-law/usufruct-in-thailand/

I see usufruct can be for a period of time, i thought it would be for life, but probably that has to be set in the contract.

 

30 years lease is as its said for 30 years and can be renewed after 30 years for another 30 years IF both agree. 

You can do that 3 times. But only for 30 years at the time, by Thai law.

She needs to make a will, who will inherit the property for her family. I dont think you have to be inheritor

when you have the usufruct or lease registered. It is in the contract and as you said still valid untill expiring.

If you are together and she dies and you have nothing in lease or usufruct, you need to sell in 1 year time

and have to get out, as you cant own land in Asia. However that is if there is no Thai inheritor. 

I do see another option called superficies, dont know yet what is that.

 

[ChouDoufu]

2 hours ago, sometimewoodworker said:

You are wrong. A farang can inherit land so becomes the owner. 
 

@choudoufu you have the mostly correct information the only correction is that however many times the land is sold, you as the usufructee keep control over it until you die or cancel the usufruct

 

thanks, but the question is.....who is the owner after a year?

 

as i understand it, the law states that foreigners cannot normally own land, however one is usually given one year to sell the property in case of inheritance.  i think in this case the land office will put the foreigner's name on the chanote for the one year term.  so far, so good.

 

but in the case of matrimonial assets, the widow who inherited from his wife will be permitted to not only stay in the house under the terms of the usufruct, but is NOT required to sell within the one year period, and the foreigner's name stays on the chanote.  eventually the land must be sold or transferred to a thai upon expiration of the usufruct.

 

common law marriage inheritance or received from a very dear friend would NOT enjoy that benefit, and MUST be sold within a year, with the usufruct on the chanote transferring to the new owner unless cancelled by the usufructee.

 

is this about right?

 

 

if married, you can inherit and own the property in your name until expiration of the usufruct due to matrimonial assets provision.

 

if not married, you can inherit and own the propety in your name for up to one year, upon which time land must be transferred to a thai along with the usufruct.

 

 

[sometimewoodworker]

3 hours ago, ChouDoufu said:

thanks, but the question is.....who is the owner after a year?

The law requires you to transfer the land.

 

3 hours ago, ChouDoufu said:

as i understand it, the law states that foreigners cannot normally own land, however one is usually given one year to sell the property in case of inheritance. 

Yes

 

3 hours ago, ChouDoufu said:

i think in this case the land office will put the foreigner's name on the chanote for the one year term.  so far, so good.

No the land office will never put a foreigner on the land ownership document

 

FWIW chanote is only 1 of the many ownership documents.

3 hours ago, ChouDoufu said:

but in the case of matrimonial assets, the widow who inherited from his wife will be permitted to not only stay in the house under the terms of the usufruct, but is NOT required to sell within the one year period, and the foreigner's name stays on the chanote.  eventually the land must be sold or transferred to a thai upon expiration of the usufruct.

A widow is a woman not a man. 
The Usufruct is on the land not the house, though the land document may be listed.

The only way a foreigner can be a temporary owner of land is via death and inheritance. The maximum ownership period by a foreigner is set to 1 year and YES by law you are required to sell/transfer withIn the year, it makes no difference if you were married or not.
No your name is never on the ownership document as owner.

The transfer of ownership has no effect on the Usufruct 

[KKr]

If I remember correctly,

Usufruct is good in case there is a house on the property, it covers the house that, however, you must maintain. But not necessarily have to own.

 

Superficies better if no house yet. You can do whatever you like on the land including building a house that you can own.

 

term I think for life or as agreed, maximum 30 years. But suggest to read up on that.

 

for advice, do see a Lawyer.

[Metropolitian]

Are there fees when registering an usufruct?

And could we expect sudden tax charges?  (once or yearly)

 

Who has done the same?   

Usufruct at the same time as the OP is planning, and/or usufruct on later moment after house already bought.

[Susco]

7 hours ago, sometimewoodworker said:

You are wrong. A farang can inherit land so becomes the owner. 

Farang can inherit land, he can not become owner.

 

If he inherit land he will be given a time period by the court, in which he has to sell the land or register it in Thai name.

[Susco]

6 hours ago, Metropolitian said:

Same boat but slightly different sails.

 

Want to put myself on the Chanote, -usufruct- is the thing to do as I understood.

Townhouse, land and home are on the same deed, unmarried but not for long (actually the plan was this year but then along came C19).

Only difference is , home already bought, and it's in GFs mom her name.

 

At time of transfering, years ago, this was put on table but wiped away as  'cannot'.

Now I know, they were thinking about different things. (split home and land and put home in my name) And I didn't know the existence of the 'usufruct' and that it can apply on anything, even combo land+home.

 

 

Comment if I am wrong.

Comment if you have experience.

Comment if you have templates/sources in both Thai and English (not pointing to those law firm websites)

You can be registered on the back of the chanote as usufructuary. If the land belongs to your wife already before the usufruct is registered, it can be challenged in a court, because contracts between spouse do not exist.

 

Registering of the usufruct is at the discretion of the officer at the land office, so some places may reject it.

 

Splitting home and land is, as far as I'm aware, only possible when building new house.

 

My house is registered in my name, as the building permit was done in my name. The land is in Thai name, with me as mortgagee registered on the back of the chanote, and a renewable 3 year lease on top of that.

[sometimewoodworker]

5 minutes ago, Susco said:

If the land belongs to your wife already before the usufruct is registered, it can be challenged in a court, because contracts between spouse do not exist.

Contracts between spouses certainly can and do exist. You have a unique view of the law.
 

AFIK It is untested in the courts if the Usufruct can be/is terminated by divorce. There are eminent lawyers who say that it cannot, some people posit that it can. There have been divorces where it remained. Until someone has enough money and will to take a case through all the courts it will not be clear.
 

while an Usufruct will protect you in law it cannot stop harassment if the locals want you out.

[Susco]

3 minutes ago, sometimewoodworker said:

Contracts between spouses certainly can and do exist. You have a unique view of the law.
 

AFIK It is untested in the courts if the Usufruct can be/is terminated by divorce. There are eminent lawyers who say that it cannot, some people posit that it can. There have been divorces where it remained. Until someone has enough money and will to take a case through all the courts it will not be clear.
 

while an Usufruct will protect you in law it cannot stop harassment if the locals want you out.

You are wrong.

 

A prenuptial contract is valid, because it is made before the marriage.

 

An ususfruct registered after the marriage, can be terminated on divorce

 

https://www.thailandlawonline.com/59-usufruct-in-thailand/4-can-my-thai-wife-cancel-my-usufruct

 

Section 1469 (laws governing property between husband and wife) does apply and when you would divorce the usufruct could be simply terminated by a court as part of the division of assets. After your marriage in Thailand, under Thai matrimonial law, personal and jointly owned marital property between husband and wife is governed by the statutory system of sections 1465 to 1493 Civil and Commercial Code, therefore any agreements between husband and wife made during the marriage affecting their assets (in conflict with the statutory system) could be set aside by the spouses themselves or a court.
Your wife is not able to cancel it when she likes, because usufruct is a registered real property right, but the usufruct can be terminated as the creation is in conflict with the statutory system of property of husband and wife.

[Susco]

https://www.samuiforsale.com/family-law/thai-marriage-and-contracts-between-husband-and-wife.html

 

Agreements between husband and wife in Thailand

Under Thai marriage laws any agreement between husband and wife entered into during the marriage can be voided by either of them at any time during the marriage or within one year from the final divorce. For this reason only a prenuptial agreement between husband and wife is under Thai law a valid contract if made pre-marriage and registered in the marriage register at the time of marriage, but it is a void contract if made post-nuptial (section 1466).

[khunPer]

On 9/4/2020 at 2:53 PM, ChouDoufu said:

if she sells the property, the usufruct passes to the new owner, remains valid.

i've read if married in event of death of wife, husband can stay indefinitely.

if GF dies, i inherit the property, but am i required to sell within one year?

Yes, a usufruct remain valid for the time it has been agreed, either up to 30 years, or for life.

 

If you inherit the property, you'll need to sell, or transfer, it within a limited period, but the usufruct will stil be valid. However it can be hard to sell a property with a usufruct servitude.

 

I'm sorry to mention it, but one thing to always remember as worst case scenario is that you shall always be worth more alive than dead in Thailand.

 

Read more about usufruct here.

 

7 hours ago, Metropolitian said:

Want to put myself on the Chanote, -usufruct- is the thing to do as I understood.

Townhouse, land and home are on the same deed, unmarried but not for long (actually the plan was this year but then along came C19).

Only difference is , home already bought, and it's in GFs mom her name.

 

At time of transfering, years ago, this was put on table but wiped away as  'cannot'.

Now I know, they were thinking about different things. (split home and land and put home in my name) And I didn't know the existence of the 'usufruct' and that it can apply on anything, even combo land+home.

 

Comment if I am wrong.

Comment if you have experience.

Comment if you have templates/sources in both Thai and English (not pointing to those law firm websites)

You shall always make a usufruct servitude – and any other servitude – on land before a marriage, and before transfer to wife, as agreements between husband and wife can be declared void if the marriage goes south.

 

Read more here "Protection And Ownership Thai Spouse".

 

You might not be able to split ownership of land and house, if it's not already split ownership; might need a superficies servitude. However, you don't have much benefit of being a house owner, without controlling the land under the house in one, or another, way; also see above about usufruct.

 

There are contract templates and Law in English in the links I've mentioned above.

 

 

In general about property in Thailand, you shall never invest more than you can afford to loose. Even you might have protected yourself with usufruct for live, or superficies for life, you might not wish to stay in the property if something goes seriously wrong. Also make sure that if the Thai wife, or girlfriend, is the owner of the land that a last will is made.

 

Buying land using a Thai company limited might in some situations give a better protection, but there are expenses for running a company, so that should be compared to the size of the investment; i.e. if the property is not of a certain value the company costs can be too high, compared to the risk if loosing the property, or part of the property's value. In principle it's illegal to use a company limited as shell for foreign land ownership, but in practice often used. 

[Metropolitian]

Good comments, hopefully for the OP too.

 

For me I think it is good to get a usufruct.

Not married, and not plan to marry by law but Thai marriage.

I bought house, paid from my bank to the previous owner.

The transfer was put on the name of the mother of my GF.

If the mother dies, GF will inherit it.

For me, I would protect my 'right' of stay in the house especially if something would happen to my GF.

What i have invested; if after 30 years I get nothing in return it is not a big loss.

 

Till now she was talking about, which I never understood, is 'nominee'.

If something would happen with her, like she dies, and mom too, then the family (nieces) could claim the house but they would put on hold with the help of people around me who can testify that I am living in the house and did buy it for 'my family, that's GF and her mom/dad (which has passed away already)'

[ChouDoufu]

thanks everyone for the links and comments.  we have a plan.

 

when the borders open and we can return, we'll buy the property from the sister.  upon transfer we'll put a 30-yr usufruct on the property.  if the land office objects, we'll go with the 30-year lease.  i don't foresee any problems with the siblings, but we'll have a will registered granting me the house/property to avoid potential headaches, especially as not married.  i'll have to sell/transfer the property to a thai within one year.  the usufruct would still be in effect, however i doubt i would want to remain in house at that point.

 

 

 

[sometimewoodworker]

8 hours ago, Susco said:

15 hours ago, sometimewoodworker said:

You are wrong. A farang can inherit land so becomes the owner. 

Farang can inherit land, he can not become owner.

 

If he inherit land he will be given a time period by the court, in which he has to sell the land or register it in Thai name.

It is only the owner of the land who has the right to dispose of it. QED the foreigner becomes the owner, though as I have said he can’t be registered on the front and he law says he has 1 year to transfer/sell the land. The legal time is sometimes ignored.

[sometimewoodworker]

14 hours ago, xtrnuno41 said:

I see usufruct can be for a period of time, i thought it would be for life, but probably that has to be set in the contract.

An Usufruct is a contract it can be for a period (maximum 30 years) or life. It terminates on the deaths of the Usufructee 

14 hours ago, xtrnuno41 said:

30 years lease is as its said for 30 years and can be renewed after 30 years for another 30 years IF both agree. 

This has been challenged in the courts and the decision is that it can not. As this goes against the maximum 30 year ruling, again you will find law firms claiming it’s legal but the courts disagree.

 

 

8 hours ago, Metropolitian said:

Are there fees when registering an usufruct?

And could we expect sudden tax charges?  (once or yearly)

The fee to the land office is minimal, you will be responsible for the land tax if levied again minimal, unlikely to be more than a few hundred baht, if that.

I haven’t been asked to pay anything in 15 years.

[sometimewoodworker]

8 hours ago, Susco said:

You are wrong.

You are referring to law office websites they are giving their opinion.

 

The courts are the arbiters of the law not the law firms. There have been cases where the Usufruct has survived divorce despite the objections of the spouse who originally granted the Usufruct. As many Usufructs are between Thai people this does not usually make the English news.

 

So until challenged in court you do not know which way the decision will go. Or TIT YMMV

[timkeen08]

10 hours ago, sometimewoodworker said:

The law requires you to transfer the land.

 

Yes

 

No the land office will never put a foreigner on the land ownership document

 

FWIW chanote is only 1 of the many ownership documents.

A widow is a woman not a man. 
The Usufruct is on the land not the house, though the land document may be listed.

The only way a foreigner can be a temporary owner of land is via death and inheritance. The maximum ownership period by a foreigner is set to 1 year and YES by law you are required to sell/transfer withIn the year, it makes no difference if you were married or not.
No your name is never on the ownership document as owner.

The transfer of ownership has no effect on the Usufruct 

A widow can be a man or women when the words widow or widower is used as a verb.

[brianthainess]

9 hours ago, Susco said:

Farang can inherit land, he can not become owner.

 

If he inherit land he will be given a time period by the court, in which he has to sell the land or register it in Thai name.

So how do i stand, my wife has made a will that i can live on the property till i die after which her kids get it. Do they ignore a will ?

[sometimewoodworker]

1 hour ago, brianthainess said:

So how do i stand, my wife has made a will that i can live on the property till i die after which her kids get it. Do they ignore a will ?

The will maybe followed by her kids, it may not. The kids will be the owners of the land some short time after your wife’s death, by law not more than a year. If you have an Usufruct it will survive your wife’s death and would making following the will more likely.
 

Depending on where you live, the value of the land/house, your relationship with the locals, your ability to fund a legal fight (if needed) and her kids etc. will influence the situation should your wife predecease you.

 

If you only have a will then it is less sure.

 

However TIT your future without your wife alive is completely uncertain only time will tell

[Purdey]

Great topic. Here's another question. When I went to get the usufruct the witch at the land office said no way would she give a lifelong usufruct to a farang and she put 30 years on it. Now, if we want it changed to lifelong, can we do that or do we have to make a new one?

[Sergeant]

Please remember, Do not buy a home in Thailand, Its illegal and means noting to Immigration. They have a reason for a bride and still will kick you out  of Thailand only to re-apply for new visa. Rent! You will never be better off if you buy! If not listen, the papers you mention, can have  lifetime papers and can sell it. Good luck

[jak2002003]

39 minutes ago, Sergeant said:

Please remember, Do not buy a home in Thailand, Its illegal and means noting to Immigration. They have a reason for a bride and still will kick you out  of Thailand only to re-apply for new visa. Rent! You will never be better off if you buy! If not listen, the papers you mention, can have  lifetime papers and can sell it. Good luck

You are not correct. 

 

You can rent land legally for a set time. You can build on the land and own the building / home. 

 

You can not own the land, but if the land owner wants the land back they have to offer you the current market value of the property you have build on it. 

 

 

 

 

[rickthailand]

On 9/8/2020 at 9:37 PM, Sergeant said:

Please remember, Do not buy a home in Thailand, Its illegal and means noting to Immigration. They have a reason for a bride and still will kick you out  of Thailand only to re-apply for new visa. Rent! You will never be better off if you buy! If not listen, the papers you mention, can have  lifetime papers and can sell it. Good luck

nonsence, i have "bought" my house 15 years ago and still live in it, and guess what if i sell it i still get more money back than i spend on it

 

rick