Usufruct vs Lease between unmarried couple

[asiasurfer]

I know this subject has been discussed many times before. I also understand that the choice is often up to the discretion of the Land Department. I also heard that usufructs can be cancelled between (married) partners.

 

Normally lawyers are trying to promote lease agreements. But it sounds cumbersome. Can't I just do this without a lawyer if the Land Department is willing to agree with the usufruct and to put my name in Channot as well? Could my gf theoretically void the usufruct, since we are couple but not married?

 

Any opinions / experiences? And no, my gf ist not from the bar or half of my age.

 

Thanks.

[carlyai]

I think you can just go to the land department and write on the title. We went through a lawyer then the land office. The lawyer wrote in Thai what was to be written on the title, so the process was fairly straight forward, but if it's a small office where they don't do much of this (like our office) there was much consulting and book reading.

I think a lawyer is a good option as you have a letter in Thai with the wording, that matches the land offices big book wording, so not much of a problem. 

[rickthailand]

use a lawyer so much easier

[1FinickyOne]

Have you considered a no strings attached gift? 

 

If can afford it, it makes life much less complicated. And nice for your wife too... 

[rodger]

I got a Usufruct at the Pranburi Land Office and it was no problem. The actual document was provided by the office as was the sale and purchase agreement. The cost about 300 bht. I didn't use a Lawyer, there are examples of the form of Usufruct online and I got a friend who can read Thai to translate my agreement as a double check, all was fine. My name is on the back of the Channote. This is a very basic legal agreement and should not require the services of a lawyer, particularly if you doing the land transaction yourself at the same time. I have the lifetime option, so regardless land ownership I have a legal right to reside.

[brianthainess]

The problem I see with a lease agreement is, if your wife was to die before you, then I believe the lease then becomes null & void, no doubt I will be corrected if i'm wrong.

[Purdey]

The death of the wife is a troubling question. I have lifelong use of the house in the usufruct but what happens if she, the land owner, dies first? Legally, I believe the land ownership transfers to me for one year during which I have to sell it. I have to evict myself or do I have the right to stay there who ever I sell it to?

[chilly07]

Lawyers offer little protection. We had a lease so that wife's family couldn't evict me if she died done by a lawyer but he forgot to tell us about land tax intervening so we had to pay 60k backtax when City Hall came knocking. Same applies with new land tax although much lower than old. On balance Usufruct is the better alternative as it's just a licence to occupy not a lease with a premium which attracts tax

[asiasurfer]

1 hour ago, Purdey said:

The death of the wife is a troubling question. I have lifelong use of the house in the usufruct but what happens if she, the land owner, dies first? Legally, I believe the land ownership transfers to me for one year during which I have to sell it. I have to evict myself or do I have the right to stay there who ever I sell it to?

As far as I know, the land will go to her kids. One reason more to make sure, she puts you in her will. I don't want to have any arguments with her kids one day!

[Purdey]

53 minutes ago, asiasurfer said:

As far as I know, the land will go to her kids. One reason more to make sure, she puts you in her will. I don't want to have any arguments with her kids one day!

Thanks I do appreciate your reply. She doesn’t have kids, and neither do I. Worried it will go to her brother, whom I don’t trust.

[KhaoYai]

On 4/10/2021 at 6:31 AM, asiasurfer said:

Can't I just do this without a lawyer if the Land Department is willing to agree with the usufruct and to put my name in Channot as well? Could my gf theoretically void the usufruct, since we are couple but not married?

Yes you could do it without a lawyer but you need to be sure the Usufruct is correctly written for it to be legal and binding. The fact that they register it doesn't make it legal - the Land Office can't advise you on that.

 

I went to the Land office with my lawyer to register my Usufruct and there was some problem but my lawyer was very firm with the manager and the regstration was done.  If you try to do it yourself you would need to be 100% fluent in (legal) Thai if there is any queery.  I can't remember the price but it wasn't particularly expensive for my lawyer to do it for me.

 

Why would you think the Usufruct can ve voided because you are not married? - I've never heard of that before.  To the best of my knowledge a properly written  Usufuct can only be cancelled with the agreement of the Usufructuary (tenant) and has nothing to do with the marital status of either party.

 

The agreement is ended on the death of the Usufructuary. It is not however, ended on the death of the Usufructor (land owner) - any new owner is bound by the terms of the original agreement.

Edited April 12, 2021 by KhaoYai

[asiasurfer]

I just remember to have read somewhere that a usufruct becomes void IF I should get married to my partner. But maybe this information is wrong... 

[The Man Who Sold the World]

First, you are soliciting legal advice on an anonymous and free forum - you get what you pay for

that being said... 

 

For what it is worth

 

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

 

Can my Thai wife cancel my usufruct?

When the usufruct is registered with the land office it is in essence not a contract that can be terminated by your wife.
Usufruct is a real right and as a real property right governed by the civil and commercial code book IV PROPERTY and not book III CONTRACTS. This means that once the right of usufruct is registered it is more or less guaranteed by law and to terminate the usufruct your wife would need 1 your consent or 2 a court order to have it removed from the title deed. 
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. 
Buying real estate in Thailand as a foreigner married to a Thai often means signing away your rights to the land, therefore it is important to obtain legal advice BEFORE you buy land on the name of your Thai spouse.  Land (or other immovable property) registered as a personal property of the Thai spouse (a non-marital property) is not automatically subject to an equitably division between husband and wife upon termination of marriage.

 

[KhaoYai]

28 minutes ago, The Man Who Sold the World said:

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.

Just my oinion but I would very much doubt that such rules could be successfully applied.  For an asset to be classed as such it would need to have a value.  A Usufruct has no value to anyone except the Usufructuary - therefore, how could its value be counted as an asset?  In the very unlikely event of a wife trying that line of attack, a decent lawyer should be able to argue that point fairly easily.

 

There are other ways to protect yourself further with a little time and effort. I was single when I 'bought' my house and it was registered in a trusted friend's name and a Usufruct agreement signed.  I also hold a Power of Attorney on the property that grants me the right to sell it (not own it) - that was signed and witnessed in the presence of a qualified Thai lawyer.  Those options might not be available to everyone - I'm lucky in that I've had genuine friends in Thailand for almost 20 years.

 

A friend has a mortgage over a property (and a Usufruct) that is registered in his wife's name so in the event of a break up, she could not sell the property without repaying the mortgage.  I'm unsure as to the strength of that method but my lawyer says its legal.  Some Land Offices won't accept foreign mortgages though.  I think the most likley benefit of such a mortgage would be to prevent a wife from obtaining further loans using the property as collateral without the husband knowing - it happens.

 

The Thai land laws prevent foreigners from owning freehold property or using other methods to circumvent those laws and in effect, own it. A properly executed Usufruct is not a means of circumvention, it is simply a method of granting secure tenure and thus legal.

[khunPer]

On 4/10/2021 at 7:31 AM, asiasurfer said:

Normally lawyers are trying to promote lease agreements. But it sounds cumbersome. Can't I just do this without a lawyer if the Land Department is willing to agree with the usufruct and to put my name in Channot as well? Could my gf theoretically void the usufruct, since we are couple but not married?

 

Any opinions / experiences? And no, my gf ist not from the bar or half of my age.

The benefit of an agreement between unmarried couples is that the wife cannot void the agreement in case of divorce.

 

Lawyers might advocate for Lease rather than usufruct, as you can easily do a usufruct with a standard agreement for a minor cost in the land office, without need for a lawyer. A few land offices might not acknowledge to register a usufruct given to a foreigner, depending of circumstances; i.e. usufruct means the "harvest the fruits of the land" which might not make much sense for example for a town house, which is a case I know where a usufruct was denied.

 

A lease agreement is a rent for a longer term than 3 years, but no longer than 30 years. There is supposed to be a lease sum paid, and when registering the lease by land office a small tax need to be paid of the total lease sum, which however for a 30-year period can be quite nice a sum here and now.

 

You always need to look at "worst case scenario" when planning.

 

A lease is for a fixed term, up to 30 years (and no more), and can include sub-lease or sale of the agreement; i.e. you have a possibility of stepping out without losing everything.

 

A usufruct is granted for a fixed term up to 30 years, or for life. You cannot sell it, and probably not lease it out. The worst case scenario in my view is that you might be worth more when dead, than when alive; especially if the usufruct is granted for family land. However, if something goes south in a relationship, you might not wish to stay on the ex-partner's family-land, no matter what servitude that is registered in the land office.

[asiasurfer]

2 hours ago, KhaoYai said:

Just my oinion but I would very much doubt that such rules could be successfully applied.  For an asset to be classed as such it would need to have a value.  A Usufruct has no value to anyone except the Usufructuary - therefore, how could its value be counted as an asset?  In the very unlikely event of a wife trying that line of attack, a decent lawyer should be able to argue that point fairly easily.

 

There are other ways to protect yourself further with a little time and effort. I was single when I 'bought' my house and it was registered in a trusted friend's name and a Usufruct agreement signed.  I also hold a Power of Attorney on the property that grants me the right to sell it (not own it) - that was signed and witnessed in the presence of a qualified Thai lawyer.  Those options might not be available to everyone - I'm lucky in that I've had genuine friends in Thailand for almost 20 years.

 

A friend has a mortgage over a property (and a Usufruct) that is registered in his wife's name so in the event of a break up, she could not sell the property without repaying the mortgage.  I'm unsure as to the strength of that method but my lawyer says its legal.  Some Land Offices won't accept foreign mortgages though.  I think the most likley benefit of such a mortgage would be to prevent a wife from obtaining further loans using the property as collateral without the husband knowing - it happens.

 

The Thai land laws prevent foreigners from owning freehold property or using other methods to circumvent those laws and in effect, own it. A properly executed Usufruct is not a means of circumvention, it is simply a method of granting secure tenure and thus legal.

Thanks for reply. I will check out the Power of Attorney thing. I don't really see it too much as an asset or investment. I'm merely buying a home. I just wanna make sure, I can live there until I die. ETA for this is approximately 50 years. ????

[The Man Who Sold the World]

2 hours ago, KhaoYai said:

Just my opinion but I would very much doubt that such rules could be successfully applied.  For an asset to

In reply I'll copy and paste their standard disclaimer: Information on thailandlawonline is provided for information purposes only and should not at any time be interpreted as legal advice. Any legal information obtained from www.thailandlawonline.com should be reviewed with an appropriate legal professional qualified under Thai law to determine its applicability to your particular situation.

 

Point concerning this subject, we are discussing (in English) the nuances of Thai law, which is written in the Thai language, administered by hai courts of law, and advocated by licensed Thai attorneys. 

 

Be smart and consult with real live licensed Thai attorneys who specialize in real estate. Get a valid legal opinion(s) from someone who is schooled, tested and licensed to practice law in Thailand. Do your due diligence in selecting your attorney. Yes, consult with multiple attorneys. Protect yourself to the best of your ability.

 

[KhaoYai]

3 hours ago, The Man Who Sold the World said:

Be smart and consult with real live licensed Thai attorneys who specialize in real estate. Get a valid legal opinion(s) from someone who is schooled, tested and licensed to practice law in Thailand. Do your due diligence in selecting your attorney.

I was and did - apart from ther bit about 'specialize in real estate' - I wouldn't trust any of them, most have a vested interest in you buying a property.  It also must be remembered that the law in Thailand is somewhat different to that in the West.  Lawyers seem to be able to give bad advice without any punitive action - they can even commit criminal offences and still practice.

 

What I would say is, read up on the law, then take your questions to a decent lawyer before forming your own opinon of which course to take.  When I said 'my opinion' in a previous post, it was - but it was my opinion after talking to 3 lawyers about property in Thailand.

 

Just out of interest, 2 of those lawyers told me that Thai law has its roots in French law - a few others mixed in and some Thai modification but basically French/European.

[KhaoYai]

5 hours ago, asiasurfer said:

Thanks for reply. I will check out the Power of Attorney thing. I don't really see it too much as an asset or investment. I'm merely buying a home. I just wanna make sure, I can live there until I die. ETA for this is approximately 50 years. ????

Then if at all possible, separate the property from your relationship.  If you register a property in your wife's/girlfriend's name and things go wrong, there's always the likelihood of problems. Better not to cloud the issue.

 

Even though I said I thought it was doubtful that a Usufruct could be counted as an asset, I'd be the first to admit that we are talking about matters Thai - and Thai courts make decisions for the 'strangest' of reasons- nudge nudge, wink wink.

 

One final point - you say ETA 50 years - therefore I'm guessing you are young enough to have kids.  I have absolutely no idea what effect kids could have on a property in the event of a break up other than: the well being of any kids is considered paramount in most circumstances by the courts.  The default position on custody in Thailand is that it is granted to the mother unless an acceptable alternative agreement is made or good reason can be shown as to why she should not be.  Therefore it would not surprise me at all if a Thai court could find a reason to terminate even a Usufruct in the event of a family breakdown where the children's home was under threat.

 

Now you may say you have no plans that way but, these things happen you know............????

 

Edit: I've just noticed your partner has kids. Talk to a lawyer about that.

 

 

Edited April 12, 2021 by KhaoYai

[asiasurfer]

On 4/12/2021 at 12:46 PM, chilly07 said:

Lawyers offer little protection. We had a lease so that wife's family couldn't evict me if she died done by a lawyer but he forgot to tell us about land tax intervening so we had to pay 60k backtax when City Hall came knocking. Same applies with new land tax although much lower than old. On balance Usufruct is the better alternative as it's just a licence to occupy not a lease with a premium which attracts tax

60k seems to be a lot. For how many years did you pay backtax? 

[baansgr]

On 4/12/2021 at 8:47 PM, asiasurfer said:

Thanks for reply. I will check out the Power of Attorney thing. I don't really see it too much as an asset or investment. I'm merely buying a home. I just wanna make sure, I can live there until I die. ETA for this is approximately 50 years. ????

I would hope the house will be in an area you want to stay even if you do break with your partner..many guys have usufructs on houses built near family or in a village and basically staying there once the relationship finishes isn't an option.

[ExpatOilWorker]

Can you do an usufruct for por-bor-tor 5 land?

[baansgr]

12 hours ago, ExpatOilWorker said:

Can you do an usufruct for por-bor-tor 5 land?

Por Bor Tor 5 is land supposedly for agricultural use....so I would assume not as any building or residence is in effect illegal

[asiasurfer]

15 hours ago, baansgr said:

I would hope the house will be in an area you want to stay even if you do break with your partner..many guys have usufructs on houses built near family or in a village and basically staying there once the relationship finishes isn't an option.

Yes I know about this problem. No it's got nothing to do with her family. 

[rumak]

On 4/12/2021 at 9:24 AM, rodger said:

This is a very basic legal agreement and should not require the services of a lawyer, particularly if you doing the land transaction yourself at the same time. I have the lifetime option, so regardless land ownership I have a legal right to reside.

 

that has been my experience on numerous pieces of land over a 20 plus year period.

the usurfruct is simple,  states who gets the usufruct ( farang name written in Thai) and for what period of time.   Mine all have "for my lifetime"