Builders contract, build in your name, Tessaban concerns

[kuma]

1 hour ago, khunPer said:

You can/should make a superficies agreement, which allows you to be owner of a building on the land – however, you still don't own the land under the building. but the usufruct might secure that part – you can read more about superficies HERE:

 

Having the land and building separated with a new-build house, doesn't give you any registration in a land office. Your proof of ownership is, apart from a superficies agreement:

 

1. All architect drawings in your name.

2. Building permission in your name; a superficies will be needed for that – that might be why, your building constructor is skeptical about just putting your name in a contract – or a similar kind of contract/permission from the land owner. The architect applying for building permission, should be able to do the paperwork (did it excellent in my case)

3. Any construction contracts in your name (only).

4. All (major) payments for construction preferably as bank transfers from your personal bank account, or if paid cash then with a receipt in your name.

5. Keep all documentation/papers, they are your (only) proof of ownership.

6. Eventually be registered as "house master" when the Blue House Book is issued by tessa ban, it's not a proof of ownership, but might help as supplement, as it's proof of who can approve names to be added in the House Book.

 

You can legally own a house in Thailand, but not the land under the house. If ever re-sold, the land office should be able to register land and building in separate names.

 

The Yellow House Book for aliens/foreigners is just a proof of address, got nothing to do with a house, but handy for obtaining a piunk ID-card for foreigners, and easy proof of address.

????

 

 

K Per, to your points

1. Drawings currently in my name, but that has to change to wifes name if we proceed with house registered in her name.

2/3.The construction contract is in my name now, but again that will have to change if we proceed as above. The push back on registration is from the Nayok Tessaban, not the builder. The buikding permission he says coukd be done, but would rake a year or so

...maybe a superficies is part of that process. I barely recall the aapects of a superficies, I recall looking at it and usufruct, and deciding ususfruct was right for me...will revisit what superficies grants. Can ask architect maybe instead of a lawyer, cheers for that idea.

4. First payment went from my bank to wifes bank to builder...always do that to minimize my account exposure. Will get receipts ...in whose name will depend on how we proceed. 

5. I am a massive paperwork hog. still using True bills from over ten years ago to start BBQs lol...I will have all paperwork.

6. Finally, I may not record myself as here, as I have a condo also, where I am on the Yellow Book..will see what makes sense after. If I move my name here, there may be tax consequences for the condo, based on the new laws, need more time to research that.

 

Being able to sell the whole thing later on, and have land and buildings registered in different names, is what is driving me to try and do this now. If we ever did decide to sell then having this all done would make it much easier to sell I think, but the hoops look daunting, lol, maybe I will fold and not bother. 

 

Great post, thanks for your time.

[rumak]

27 minutes ago, kuma said:

Being able to sell the whole thing later on, and have land and buildings registered in different names, is what is driving me to try and do this now. If we ever did decide to sell then having this all done would make it much easier to sell I think,

 

Sorry,  but i would think that having everything in ONE name would definitely make selling easier .

When you said ".good again in terms of easing future resale to a foreigner,"  i don't follow that at all.

My thinking is that most farangs buying a land with house (not a condo)  are doing so in their wifes'

or  cough cough  girlfriends name.   Sure, then they can get a usufruct or lease ..... whatever.

All in Thai person's name is always easiest..... as you are finding out.  

Married thais must both sign off on any sale .   I think this would be the case as well with Farang being the husband but no experience with that.   But the land that we sold with me having the sitti gep gin  it was required that a form was signed and me agreeing to remove my right as such before the sale could be done at the Land Office.

[Dene16]

7 hours ago, LukKrueng said:

Again this misconception of house ownership. When you buy a plot of land, your name (must be Thai citizen) is listed on the chanot as owner. When you build a house on that plot, no chanot (title deed) is being issued for the house, so whoever owns the land owns everything on it (non movable structures).

For many years many of us have been  lead to believe, exactly what you have stated, simply just because for most people they simply did not know their way around the system, including myself. 

Khunper, in this thread, has now brought the in the subject of superficies, of which i was not aware of so its still a learning curve after a lot of research (times are changing)

I placed the ownership of land into to my 3 year old son which everyone told me was not possible. (The land is owned by my son and my GF's brother who owns 50%) I had to tell him,after the fact, that he could not borrow money on the land.

 Not owning the entire plot,  my son could not agree to anything until he reach's 20 years of age.(we may still be able to separate the land)

I may of created my own problem in that i, now, do not know if i can get a Usufruct on the land (If anyone can help with this please comment)  

But in most cases you do own the property or rights to it as long as the lease is in place unless it runs out or is renewed. this is basically no difference to the rest of the world.

 

 

 

 

[kuma]

50 minutes ago, rumak said:

 

Sorry,  but i would think that having everything in ONE name would definitely make selling easier .

When you said ".good again in terms of easing future resale to a foreigner,"  i don't follow that at all.

My thinking is that most farangs buying a land with house (not a condo)  are doing so in their wifes'

or  cough cough  girlfriends name.   Sure, then they can get a usufruct or lease ..... whatever.

All in Thai person's name is always easiest..... as you are finding out.  

Married thais must both sign off on any sale .   I think this would be the case as well with Farang being the husband but no experience with that.   But the land that we sold with me having the sitti gep gin  it was required that a form was signed and me agreeing to remove my right as such before the sale could be done at the Land Office.

Very good points, maybe im looking thru the prism incorrectly. Indeed everything in one (Thai) name sure is the least hurdles...so maybe that is the best way and you have a point, it being the overwhelmingly adopted process, that could be the future sale best altrrnative, instead of doing handstands trying to do otherwise. I have only bought condos in my name here in the past, all foreign allottment and in my name, so maybe I should not use that so much as a ereference point and end goal.

Well, sleep on it tonight (or not sleep pondering it lol) and have at it again tomorrow.

Thanks

[khunPer]

When it's a question of security of one's "investment" in Thai property – and being aware of that any agreement between husband and wife can be void – it's a possibility to use a minor, like @Dene16used his minor son, as owner, as it's almost impossible to sell or transfer land owned by a minor.

 

My lawyer, an expert in property, had another suggestion: using a loan as security. Declaring a loan as a servitude, just like mortgage, would make a tranfer of title deed impossible, unless the loan, and eventually interest, was fully paid. My lawyer suggested to make a loan in level of the total investment, i.e. land + building(s).

Concerning sale of separated land and building. It's not a problem if same person buys both land and building, i.e. same name. If buyer is looking for a separated land and building, an existing building, not already separated, cannot be separated later – apart from a new build house – so depending of buyer, it can be an advantage to have land and building separated. If building is sold independent of land, then there is a 30-days delay at land office. There are more information about deling with separated land and house HERE.

 

Always be aware of that different land offices might have slightly different procedures – even rules – for example would the land office where I live not accept to register a usufruct between a Thai wife and a foreign husband (I have no personal experience, but others have posted about being denied a usufruct).

????

[kuma]

48 minutes ago, Dene16 said:

For many years many of us have been  lead to believe, exactly what you have stated, simply just because for most people they simply did not know their way around the system, including myself. 

Khunper, in this thread, has now brought the in the subject of superficies, of which i was not aware of so its still a learning curve after a lot of research (times are changing)

I placed the ownership of land into to my 3 year old son which everyone told me was not possible. (The land is owned by my son and my GF's brother who owns 50%) I had to tell him,after the fact, that he could not borrow money on the land.

 Not owning the entire plot,  my son could not agree to anything until he reach's 20 years of age.(we may still be able to separate the land)

I may of created my own problem in that i, now, do not know if i can get a Usufruct on the land (If anyone can help with this please comment)  

But in most cases you do own the property or rights to it as long as the lease is in place unless it runs out or is renewed. this is basically no difference to the rest of the world.

 

 

 

 

I am not sure of cancellation or escape clauses on standard land lease contracts, but my understanding of tge usufruct is that you will enjoy the unfettered (maybe not totally) use of the land for the term of your natural life, providing you do not engage in things that destroy the land value, like say excavating and selling the soil.

The fa t the land is registered to two people should not exclude you from getting a usufruct, but if you are the guardian of your son and have signing authority, it could present some catch 22 issue, seeing it is you that wants the usufruct...all assuming your gf brother is ok signing as well.

Suoerficies and usufructs are different, and there is info online on what they are, jow they differ and when to use one over the other (or sometimes both). I did all that way back and decided usufruct was for me, but forget the details. There are cases where people do both...I dont think I want to go there.

That is an interesting twist, hope you can make it all work out. The borrowing against the land is another potential tripwire it seems you will have to remain vigilant on, or risk losing it...or half of it

Good luck on that, cheers

[kuma]

7 minutes ago, khunPer said:

When it's a question of security of one's "investment" in Thai property – and being aware of that any agreement between husband and wife can be void – it's a possibility to use a minor, like @Dene16used his minor son, as owner, as it's almost impossible to sell or transfer land owned by a minor.

 

My lawyer, an expert in property, had another suggestion: using a loan as security. Declaring a loan as a servitude, just like mortgage, would make a tranfer of title deed impossible, unless the loan, and eventually interest, was fully paid. My lawyer suggested to make a loan in level of the total investment, i.e. land + building(s).

Concerning sale of separated land and building. It's not a problem if same person buys both land and building, i.e. same name. If buyer is looking for a separated land and building, an existing building, not already separated, cannot be separated later – apart from a new build house – so depending of buyer, it can be an advantage to have land and building separated. If building is sold independent of land, then there is a 30-days delay at land office. There are more information about deling with separated land and house HERE.

 

Always be aware of that different land offices might have slightly different procedures – even rules – for example would the land office where I live not accept to register a usufruct between a Thai wife and a foreign husband (I have no personal experience, but others have posted about being denied a usufruct).

????

We registered a usufruct and it all went smooth. I hear the point about land in childs name or a loan, but we have no kids and likely wont, and I am not concerned about the investment, fooliah or not....we have been together a long time and make a good team and even if it qas hone tomorrow its ok. But usufruct is a backstop in case we later are at odds...but not a lot of later left so time is finally on my side again lol.

All thia effort and stress to juat try to make the overall.property possibly more attractive for a posdible future sale just seems to be not working out with a positive payback. As Rumak mentioned, chances are a buyer would want all.land and housw in.one name as much as one would want it split....in which case no need for all this headache. The only laat thing that I dwell on is if this is a denial of what I should be able to legally do...in that case the hair on my back gets up and I wouls push back...but it sounds like that is not the issue here.

Cheers

 

[khunPer]

4 hours ago, Dene16 said:

I may of created my own problem in that i, now, do not know if i can get a Usufruct on the land (If anyone can help with this please comment) 

Normally neither usufruct, nor sale/transfer of land, is possible when a minor is owner. The usual answer has always been to make servitudes – like usufruct and superficies – before land is transferred to the name of a wife, or a minor.

[LukKrueng]

9 hours ago, Dene16 said:

Not owning the entire plot,  my son could not agree to anything until he reach's 20 years of age.(we may still be able to separate the land)

Your son being a minor (under 20) means the property can't be sold without a court approval regardless of the % of property he owns (even if he was the sole owner, 100% - you'd still need a court approval to sell) 

[steven100]

On 10/24/2020 at 7:29 PM, Matzzon said:

Yes, It´s will surely do. The good thing is that you have a usufruct that will give you the right to live in the place as long as you live or wish. That will also make it easier for you  to split the house and the land in two deeds at a later stage.

I often thought about getting a Usufruct in place,  but the problem is that if you separate,  in 90% of cases it turns nasty because someone was cheating bla .. bla .. bla.   Would you even want to stay in the same place ?   your personal safety could be compromised   ? .    As for the building of the house in the farang name ....   it doesn't matter whether it's in his name or Joe Blogs name ,  you cannot own the land that the house sits on so she will get it anyway unless the court required it be sold and proceeds split.   imo

[bradiston]

20 hours ago, Peter Denis said:

Wow, so they fined your daughter for not having notified the IO that you - a foreigner - was staying at the premisses.  But you are the house owner!  It is you - as house owner - that has to notify the local IO that you are staying at your own house.  Your daughter has nothing to do with this.  The house-book clarifies the issue who is owner of the house, and that's the person expected to notify IO that a foreigner is staying there.

Looks like Trad IO is totally out of bounds on this issue.

Note: Did you try registering the premisses on the IO TM-30 website?

The blue book doesn't establish ownership, just who lives there. I'm now registered on the TM 30 website as living there. So I can self notify. My problems arose from nasty neighbours creating trouble. The IOs visited, and issued a 1600 THB fine for my daughter which I paid. At that point I wasn't registered. But getting a certificate of residence later on meant getting signed affidavits from my daughter saying I had her full permission to live there. It was just the run around. Establishing ownership of a building on somebody else's land is a joke. And if you don't have a usufruct or servitude or superficies agreement with the land owner, technically you could be accused of trespass when crossing their land. It's a mine field. Watch out!

[khunPer]

7 hours ago, steven100 said:

I often thought about getting a Usufruct in place,  but the problem is that if you separate,  in 90% of cases it turns nasty because someone was cheating bla .. bla .. bla.   Would you even want to stay in the same place ?   your personal safety could be compromised   ? .    As for the building of the house in the farang name ....   it doesn't matter whether it's in his name or Joe Blogs name ,  you cannot own the land that the house sits on so she will get it anyway unless the court required it be sold and proceeds split.   imo

I unfortunately use to say – and it's not targeted on anyone specifically – that as an alien in Thailand, it's important always to "be worth more alive than dead".

 

You are absolutely right about a usufruct-servitude on kind of "Thai family land" after a relationship has gone south, there might appear numerous reasons why you don't wish to stay there.

 

The good old saying "never invest more in Thalaind, than you can afford to loose" often makes sense. When it comes to property – and not using more complicated methods, with ongoing expenses, like having property in the name of a Thai company limited; or a fully legally foreign-owned apartment/condo; or being wealthy enough to obtain an investment visa – this sentence is worth to keep in mind.

[khunPer]

6 hours ago, bradiston said:

Establishing ownership of a building on somebody else's land is a joke.

Not always, with the new property tax in mind, and an agreement about the user of the property pays all taxes – as it's often is with various long-term agreements – ownership of a home, without ownership of land underneath, makes it free from property tax of value up to 10 million baht, whilst land might be charged from a different rate, depending of it's status. If a property is registered as commercial use, the property tax rate is relative high, but so far we don't know many details about how the new tax will work in practice; like if leased land under a house – or any other agreement for land use – used as primary home, is considered commercial use or residential use.

 

About house ownership, a registered building permission in the home user's name and issued Yellow House Book, seems to give status as primary home for the house, and thereby the 10 million baht exemption. The tessa ban-office will issue a declaration to the revenue office – that's how it works so far for me. Paying 0 percent tax instead of 1.20 percent of up to 10 million baht is some kind of money worth saving, vieved in long term; especially if the taxrate might raise to the be increased by 0.3 percent every 3 years, until it reaches a cap of 3 percent...

[sometimewoodworker]

On 10/25/2020 at 10:58 AM, Peter Denis said:

The house-book clarifies the issue who is owner of the house, and that's the person expected to notify IO that a foreigner is staying there.

Actually the house book is nothing specifically to do with ownership. The house master in the house book maybe the owner or may not. But the house master does have responsibility for filling in the TM30 if there’s  foreign resident there.

A person can only be listed in 1 house book but they, of course, can own as many houses as they can afford. 

Edited October 27, 2020 by sometimewoodworker

[sometimewoodworker]

On 10/25/2020 at 11:56 AM, KKr said:

usufruct if I remember correctly allows for use of house, and house needs to be maintained, what may cause indeed legal question about ownership. 

The vast majority, if not all, Usufructs apply to the land and give total control over the land for the period of the Usufruct contract.
 

The ownership of the land is completely separate from the Usufruct after it has been established.

 

So the land owner is completely free to sell the land at any time, though of course the value is vastly lower because of the Usufruct.

[mpchamp]

On 10/25/2020 at 8:31 PM, khunPer said:

You can/should make a superficies agreement, which allows you to be owner of a building on the land – however, you still don't own the land under the building. but the usufruct might secure that part – you can read more about superficies HERE:

 

Having the land and building separated with a new-build house, doesn't give you any registration in a land office. Your proof of ownership is, apart from a superficies agreement:

 

1. All architect drawings in your name.

2. Building permission in your name; a superficies will be needed for that – that might be why, your building constructor is skeptical about just putting your name in a contract – or a similar kind of contract/permission from the land owner. The architect applying for building permission, should be able to do the paperwork (did it excellent in my case)

3. Any construction contracts in your name (only).

4. All (major) payments for construction preferably as bank transfers from your personal bank account, or if paid cash then with a receipt in your name.

5. Keep all documentation/papers, they are your (only) proof of ownership.

6. Eventually be registered as "house master" when the Blue House Book is issued by tessa ban, it's not a proof of ownership, but might help as supplement, as it's proof of who can approve names to be added in the House Book.

 

You can legally own a house in Thailand, but not the land under the house. If ever re-sold, the land office should be able to register land and building in separate names.

 

The Yellow House Book for aliens/foreigners is just a proof of address, got nothing to do with a house, but handy for obtaining a piunk ID-card for foreigners, and easy proof of address.

????

 

 

Is it possible to have 2 names as the owner of the house? 1 foreigner and the Thai wife?

[khunPer]

22 minutes ago, mpchamp said:

Is it possible to have 2 names as the owner of the house? 1 foreigner and the Thai wife?

I presume it is, but what would you gain from that if the house is acquired after marriage, where Thai-law states 50/50 ownership, and who owns the land, under the house?

[mpchamp]

22 hours ago, khunPer said:

I presume it is, but what would you gain from that if the house is acquired after marriage, where Thai-law states 50/50 ownership, and who owns the land, under the house?

Wife also wants to put her name as the owner. I bought the land, and as you know it must be under her name. For me personally, I'm not sure what would be advantage if my name is also put in the house. But if it's possible, why not.

[khunPer]

55 minutes ago, mpchamp said:

Wife also wants to put her name as the owner. I bought the land, and as you know it must be under her name. For me personally, I'm not sure what would be advantage if my name is also put in the house. But if it's possible, why not.

It probably won't make any difference when you are already married, half land/house would be yours in case of divorce.

 

However a last will would make sense, and also either usufruct agreement or habitation right. If there is no will a spouse is eligible to 50 percent of the assets, the other half to be divided between children.  Only if there are no blood heirs – i.e. children, grandchildren, parents, other siblings in that order – a spouse receives the entire assets.

 

If it's a new build house then – to my knowledge and experience – both names need to be on all documentation from drawings and superficies to building permission, and on all contracts and receipts, or transfers from shared bank account...????

[kuma]

24 minutes ago, khunPer said:

It probably won't make any difference when you are already married, half land/house would be yours in case of divorce.

 

However a last will would make sense, and also either usufruct agreement or habitation right. If there is no will a spouse is eligible to 50 percent of the assets, the other half to be divided between children.  Only if there are no blood heirs – i.e. children, grandchildren, parents, other siblings in that order – a spouse receives the entire assets.

 

If it's a new build house then – to my knowledge and experience – both names need to be on all documentation from drawings and superficies to building permission, and on all contracts and receipts, or transfers from shared bank account...????

Your laat point on a new house is interesting. I had tge plans in my name and the contract with the builder as well. This Tessaban said they would not approve that, plans and contract had to be in wifes name, not even dual allowed. More of this wide discretion that you find all over herw in officialdom

[mpchamp]

1 hour ago, khunPer said:

It probably won't make any difference when you are already married, half land/house would be yours in case of divorce.

 

However a last will would make sense, and also either usufruct agreement or habitation right. If there is no will a spouse is eligible to 50 percent of the assets, the other half to be divided between children.  Only if there are no blood heirs – i.e. children, grandchildren, parents, other siblings in that order – a spouse receives the entire assets.

 

If it's a new build house then – to my knowledge and experience – both names need to be on all documentation from drawings and superficies to building permission, and on all contracts and receipts, or transfers from shared bank account...????

The last point is relieving. Yes, it will be a new house. I have 2 kids now with my wife - 2 yrs old and 2 months old. Already bought 2 lands all in her name. Maybe I just want to have some peace of mind that at least for the house she could not just do anything on it without my knowledge. These are all for the kids future.

[khunPer]

1 hour ago, kuma said:

Your laat point on a new house is interesting. I had tge plans in my name and the contract with the builder as well. This Tessaban said they would not approve that, plans and contract had to be in wifes name, not even dual allowed. More of this wide discretion that you find all over herw in officialdom

Did you have a superficies servitude, or any kind of contract that gave you permission to build something on the land..?

[khunPer]

1 minute ago, mpchamp said:

The last point is relieving. Yes, it will be a new house. I have 2 kids now with my wife - 2 yrs old and 2 months old. Already bought 2 lands all in her name. Maybe I just want to have some peace of mind that at least for the house she could not just do anything on it without my knowledge. These are all for the kids future.

An sometimes used method is to let a child, or the children, own the land; which hardly can be sold or transferred without a court order as long as the child/children is/are minor – i.e. under 20 years old – and before transferring land to the children make the necessary servitudes like usufruct and/or superficies, as that might also be difficult, or impossible, to make later.

 

Another possibility my lawyer mentioned, is to declare a loan as servitude on the land, just like a mortgage. As "investment" protection the loan could cover both the price of the land, and a house. The land cannot be transferred, without permission when there is a loan servitude, or the loan has not been declared fully paid.

 

But both minors as owner, and loan servitude, can be complicated if the land has already been bought and transferred to wife's name.

 

The only problem – in my view – with being owner of a house in Thailand, and not the land under it, is that whoever owns the land still can make you wish to move, if everything goes seriously south. However, having a house on land owned by child/children makes it much more attractive – especially if one is also guardian – than a house on land owned by an ex.spouse, or an ex.spouse's family.

 

A more complicated and expensive method is using a company limited , which with the right set-up, can be quite safe.

 

I unfortunately use to say that as an alien in Land-of-Smiles, it's important to be worth more alive, than dead.