Land in wifes name. Can I have registered lease or usefruct?

[ubonr1971]

We basically purchased 2 areas of land owned by different familes (right next to each other) - of course different chanotes. My wife is ok about me taking a registered lease on one side of the land (allocated to me). We basically put half in each and shes ok with me having my land and hers. But Im wondering is it better to have a Usefruct not a 30 yr lease. What are the pros and cons of each. 

 

I wanted to put my designated land in my kids name but found out on another thread that its impossible to put PEA electric in a kids name. Its possible to put PWA water account in kids name but not electric. So unless I put solar panels I think I have to leave the land in the wifes name and either register a lease and pay taxes at the land office or put a usefruct instead. What do you recommend?

 

thanks

[nigelforbes]

An usufruct between husband and wife is not valid.

[Kwasaki]

25 minutes ago, nigelforbes said:

An usufruct between husband and wife is not valid.

A Norwegian man in our village had an agreement with his wife drawn up by a lawyer for 30 years.

[nigelforbes]

Just now, Kwasaki said:

A Norwegian man in our village had an agreement with his wife drawn up by a lawyer for 30 years.

I'm sure there may be a way around it but essentially, agreements made between husband and wife are cancelled on divorce and do not offer the protection envisaged by the usufruct..

[KhunLA]

1 hour ago, nigelforbes said:

An usufruct between husband and wife is not valid.

And yet, I've had 8 of them.   And I needed to sign off on every sale of, and even agree to the addition to present house, that wasn't in the original blueprint submitted when build started.

@ubonr1971

leases are useless, if anyone wants you out, you'll be put out.  Ex-wife can cancel lease after 1 yr, as I was told at land office.   YMMV

[JimGant]

4 minutes ago, KhunLA said:

leases are useless, if anyone wants you out, you'll be put out.

Not legally. You, the lessee, are written into the chanote, at least for 30 years.

[KhunLA]

3 minutes ago, JimGant said:

Not legally. You, the lessee, are written into the chanote, at least for 30 years.

Not if she cancels it .. as I was told by land office ... YMMV

 

If the family doesn't want you there, for your safety, best to leave when asked.

Edited February 18, 2023 by KhunLA

[scorecard]

1 hour ago, nigelforbes said:

I'm sure there may be a way around it but essentially, agreements made between husband and wife are cancelled on divorce and do not offer the protection envisaged by the usufruct..

I suspect there's lots of assumption and bar talk/bar lawyer stuff here. 

 

This needs to be checked with a real and experienced lawyer.

 

I mention 'experienced' lawyer because not many lawyers are experienced regarding usufructs.

 

And there are amphurs / districts where the Land Titles Officer seniors will not allow usufructs. They are fully legal but as well known local interpretations do happen and there's nothing you can do o change that. 

 

My own experience. We live in Chiang Mai. Our family house and land is owned by my Thai adult (40 yo) Thai son. His name is on the back of the chanut as the owner.

 

There's also a usufruct in my name on the same property, all recorded on the back of the chanut. The usufruct is for life. I am the only person who can cancel it. It does auto ancel when I die.

 

Without my written permission the property cannot be sold or re-developed. 

Edited February 18, 2023 by scorecard

[nigelforbes]

12 minutes ago, KhunLA said:

And yet, I've had 8 of them.   And I needed to sign off on every sale of, and even agree to the addition to present house, that wasn't in the original blueprint submitted when build started.

@ubonr1971

leases are useless, if anyone wants you out, you'll be put out.  Ex-wife can cancel lease after 1 yr, as I was told at land office.   YMMV

Sure you can get them, that doesn't mean they are valid or enforceable in law.

[KhunLA]

1 minute ago, nigelforbes said:

Sure you can get them, that doesn't mean they are valid or enforceable in law.

My signature was needed in Udon Thani & Prachuap for anything to be done with the land.  Concerning sale, leasing or construction.  Seemed pretty valid & binding and enforceable to me.

 

YMMV  

[JimGant]

12 minutes ago, KhunLA said:

Not if she cancels it .. as I was told by land office ...

Doubt she can cancel out of spite, as it is a legal contract between lessor and lessee. Certainly, if you the lessee dies, she can amend the chanote to cancel out the lease. Also, if you don't maintain the property by reasonable standards, probably also grounds for lease cancellation. But out of spite -- doubtful.

[nigelforbes]

8 minutes ago, KhunLA said:

My signature was needed in Udon Thani & Prachuap for anything to be done with the land.  Concerning sale, leasing or construction.  Seemed pretty valid & binding and enforceable to me.

 

YMMV  

I agree that usufruct are good useful, they are just not valid or enforceable between husband and wife. I have an usufruct takes out before marriage, for this reason.

[nigelforbes]

18 minutes ago, scorecard said:

I suspect there's lots of assumption and bar talk/bar lawyer stuff here. 

 

This needs to be checked with a real and experienced lawyer.

 

I mention 'experienced' lawyer because not many lawyers are experienced regarding usufructs.

 

And there are amphurs / districts where the Land Titles Officer seniors will not allow usufructs. They are fully legal but as well known local interpretations do happen and there's nothing you can do o change that. 

 

My own experience. We live in Chiang Mai. Our family house and land is owned by my Thai adult (40 yo) Thai son. His name is on the back of the chanut as the owner.

 

There's also a usufruct in my name on the same property, all recorded on the back of the chanut. The usufruct is for life. I am the only person who can cancel it. It does auto ancel when I die.

 

Without my written permission the property cannot be sold or re-developed. 

Read again what wrote.

[bradiston]

2 hours ago, scorecard said:

I suspect there's lots of assumption and bar talk/bar lawyer stuff here. 

 

This needs to be checked with a real and experienced lawyer.

 

I mention 'experienced' lawyer because not many lawyers are experienced regarding usufructs.

 

And there are amphurs / districts where the Land Titles Officer seniors will not allow usufructs. They are fully legal but as well known local interpretations do happen and there's nothing you can do o change that. 

 

My own experience. We live in Chiang Mai. Our family house and land is owned by my Thai adult (40 yo) Thai son. His name is on the back of the chanut as the owner.

 

There's also a usufruct in my name on the same property, all recorded on the back of the chanut. The usufruct is for life. I am the only person who can cancel it. It does auto ancel when I die.

 

Without my written permission the property cannot be sold or re-developed. 

I have a usufruct agreement with my Thai daughter on land and buildings thereon. Her name's on the chanote, and the usufruct also with my name. My name's on the building permit, but that seems of little consequence to Thais. We went together to the land office. Neither of us speaks fluent Thai, but we got there. No lawyers involved. Just dogged determination.

Edited February 18, 2023 by bradiston

[khunPer]

3 hours ago, ubonr1971 said:

I wanted to put my designated land in my kids name but found out on another thread that its impossible to put PEA electric in a kids name. Its possible to put PWA water account in kids name but not electric. So unless I put solar panels I think I have to leave the land in the wifes name and either register a lease and pay taxes at the land office or put a usefruct instead. What do you recommend?

Usufruct can last for 30 years or for your life; it's a minor fee to register and it's often easily done.

 

When registering a lease agreement, which can be from 3 year and up to 30 years, you need to pay tax for the full registered period.

 

A lease can include transfer to third party – i.e., you can sell a remaining period of an lease agreement – or be inherited, while an usufruct cannot be transferred or inherited.

 

Check that title deed is nor sor see – i.e. nor sor 4 or "Chanute" title – for full ownership.

 

In both cases – usufract or lease – be aware of the contracts between husband and wife can be declared void, so having a servitude on land owned by a spouse, is not a solid guarantee of financial protection. Furthermore, when looking at worst case scenario, in my view it important that being worth more alive than dead.

 

A minor can own land, but under guardian; so the land can normally not be mortgaged, sold or transferred as long as the owner is minor. When I registered for electric before I had a house book, I could register in my girlfriends name using her house book-registration, even it was an address in another province about 1,000 kilometers away.

 

A foreigner can own a house, but not the land under the house. So if you intend to build something on "your" land, you shall have a superficies servitude. To prove that you are owner, you shall have architect drawings with your name; building permission issued to your name (here you need the superficies or other similar permission from the landowner); building constructor contract(s) in your name; any money transfers from your bank account or cash receipts with your name on it. These documents are your proof of ownership – the building can then be sold or transferred separated from the land and register to a new owner.

 

Being owner of a building with a house book, you can have electric connection.

My recommendation: Put the land in your child's name with you as guardian...????

[Sigma6]

As mentioned the usufruct offers less (none?) security  between a married couple.  This has been through the thai courts, and the divorce was seen to override the Usufruct.

I'd like to know if anyone has been granted an Usufruct in Phuket?? - My research so far has shown that the decision rests with the local land office, and they can deny it - so how to know?!?

 

I dont want to go through all the hassle of preparing funds, lawyers etc and then go for the transfer only to find they wont issue an usufruct....

 

(I'm long term settled, but not married)

[nigelforbes]

Now I'm back at a desktop instead of trying to answer using my phone:

 

An usufruct between two people is useful and valid, as long as it is not taken out when they are man and wife. If they are man and wife, the usufruct can be cancelled upon divorce hence the usufruct does not provide the long term  security that was the reason for taking it out in the first place. Secondly, the usufruct gives the holder the right to dictate who may and may not live in the property. But assets that are purchased during marriage are considered joint assets that must be split 50/50 on divorce. The usufruct holder therefore loses the ability to dictate who may live in the property when that person is a spouse and they granted the usufruct whilst married.

 

If the man and woman are not married and a property is purchased in the Thai spouses name, and an usufruct is granted to the non-Thai spouse, and later they marry, the property is not considered a joint asset and the usufruct remains valid upon divorce because the Thai spouse is unable to cancel it.

 

.

[ubonr1971]

2 hours ago, KhunLA said:

Not if she cancels it .. as I was told by land office ... YMMV

 

If the family doesn't want you there, for your safety, best to leave when asked.

Actually I dont think what you have been saying is factually correct despite the fact that a government officer told you what they did. 

 

If a lease is registered at the land office and taxes have been paid, then the landlord has to go to court to revoke it. ie if rent has not been paid or terms of the lease. This is the only way it can be revoked. 

[ubonr1971]

36 minutes ago, bradiston said:

I have a usufruct agreement with my Thai daughter on land and buildings thereon. Her name's on the chanote, and the usufruct also with my name. My name's on the building permit, but that seems of little consequence to Thais. We went together to the land office. Neither of us speaks fluent Thai, but we got there. No lawyers involved. Just dogged determination.

how old was your thai daughter when you put that usufruct on?

[ubonr1971]

25 minutes ago, khunPer said:

Usufruct can last for 30 years or for your life; it's a minor fee to register and it's often easily done.

 

When registering a lease agreement, which can be from 3 year and up to 30 years, you need to pay tax for the full registered period.

 

A lease can include transfer to third party – i.e., you can sell a remaining period of an lease agreement – or be inherited, while an usufruct cannot be transferred or inherited.

 

Check that title deed is nor sor see – i.e. nor sor 4 or "Chanute" title – for full ownership.

 

In both cases – usufract or lease – be aware of the contracts between husband and wife can be declared void, so having a servitude on land owned by a spouse, is not a solid guarantee of financial protection. Furthermore, when looking at worst case scenario, in my view it important that being worth more alive than dead.

 

A minor can own land, but under guardian; so the land can normally not be mortgaged, sold or transferred as long as the owner is minor. When I registered for electric before I had a house book, I could register in my girlfriends name using her house book-registration, even it was an address in another province about 1,000 kilometers away.

 

A foreigner can own a house, but not the land under the house. So if you intend to build something on "your" land, you shall have a superficies servitude. To prove that you are owner, you shall have architect drawings with your name; building permission issued to your name (here you need the superficies or other similar permission from the landowner); building constructor contract(s) in your name; any money transfers from your bank account or cash receipts with your name on it. These documents are your proof of ownership – the building can then be sold or transferred separated from the land and register to a new owner.

 

Being owner of a building with a house book, you can have electric connection.

My recommendation: Put the land in your child's name with you as guardian...????

re your last sentence.... If I do that I cant have the PEA electric installed bc it cant be in a kids name. Water account can but electric not. So should I still go for it and just put solar panels on the roof?

[bunnydrops]

42 minutes ago, nigelforbes said:

If they are man and wife, the usufruct can be cancelled upon divorce

If the wife dies, who can do the canceling?

[scorecard]

24 minutes ago, ubonr1971 said:

re your last sentence.... If I do that I cant have the PEA electric installed bc it cant be in a kids name. Water account can but electric not. So should I still go for it and just put solar panels on the roof?

But is it the end of the world if the electricity bill is in your name / your wifes' name or another relatives name, etc?

[Rimmer]

A smart Alec troll post has been removed

[Purdey]

I seen to remember an article on AN about usufruct agreements. Mine says I can use it for the rest of my life. Neither divorce nor disagreement can change that. I can knock it down and make an orchard and don't need to replace the building like I would in a lease. 

Even land owned by my spouse passes to me upon her death and i have one year to sell it. Good to have some cash in my old age 

[bradiston]

39 minutes ago, ubonr1971 said:

how old was your thai daughter when you put that usufruct on?

Iirc 29. I'll fill in a little background, as it may be relevant. I had a long running battle with my neighbour, who sold my daughter the land. He vandalised my house, and in doing so, trespassed on my daughter's land and, according to the police charge sheet, caused a public disturbance. I had a visit from immigration around about the same time, even though the io office is an hour's boat ride away and they were only interested in 2 foreigners on the island. They wanted to see a TM30 from my daughter, which they hadn't received. I paid the fine in lieu of a long argument about property ownership. When they'd left, it occurred to me my position was tenuous as I had no written agreement with my daughter about permission to live there, so technically, could be said to be trespassing every time I crossed her land. Hence the visit to the land office pronto as soon as my daughter came over on her annual visit.

 

The usufruct is particularly useful in that it gives me a lot of control over the use of the house and land. It allows me to operate without POA from my daughter for much of the time, though obviously not for selling. But I can let, rent out, modify etc. It also gives me security for my lifetime. If there is such a thing! For me it was ideal.

[nigelforbes]

1 hour ago, bunnydrops said:

If the wife dies, who can do the canceling?

I'm guessing it can't be cancelled.

[JimGant]

1 hour ago, bunnydrops said:

If the wife dies, who can do the canceling?

This really should be the point of this whole discussion, either lease or usufruct. After 44 years of marriage, not too worried about my leases being cancelled. But if the wife dies, the land with the leases go to me. And I then have a year to find Thai owners, which will be my niece and nephew. Regardless of whatever Thais take ownership, I'll have the right to live on the property for the duration of the leases, which well exceed my life expectancy. The new owners are thus stuck with a geezer on the property, meaning my nieces and nephews don't really have any attractive re-sale options, should we have a falling out.

[connda]

Yes. You can.  Get a Thai lawyer.   You are not going to navigate a Usufruct by yourself.  Be prepared to give the Land Office some ฿฿฿Love฿฿฿.  You come away with your name on the Charnote and essentially you have a lien on the property for your life-time.
You wife could sell the property, but - it's still yours to "Use" and sell.

[connda]

21 minutes ago, JimGant said:

This really should be the point of this whole discussion, either lease or usufruct. After 44 years of marriage, not too worried about my leases being cancelled. But if the wife dies, the land with the leases go to me. And I then have a year to find Thai owners, which will be my niece and nephew. Regardless of whatever Thais take ownership, I'll have the right to live on the property for the duration of the leases, which well exceed my life expectancy. The new owners are thus stuck with a geezer on the property, meaning my nieces and nephews don't really have any attractive re-sale options, should we have a falling out.

Which mean?  Leases suck.  With a Usufruct, your on the Charnote.  Like a tick on the back of a dog.  Of course - if someone purchases the land they can use "tick remover", but???  Legally?  Buy some protection.

[bradiston]

6 minutes ago, connda said:

Yes. You can.  Get a Thai lawyer.   You are not going to navigate a Usufruct by yourself.  Be prepared to give the Land Office some ฿฿฿Love฿฿฿.  You come away with your name on the Charnote and essentially you have a lien on the property for your life-time.
You wife could sell the property, but - it's still yours to "Use" and sell.

Yeah, get a Thai lawyer and get his name on the chanote more like.