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

[Dogmatix]

I had a usufruct before we registered our marriage, as advised by a lawyer. There are two problems with usufruct after marriage: 1) assets acquired after marriage are deemed marital property to be divided in the event of divorce; 2) under the Civil and Commercial Code a contract between man and wife can be deemed null and void by a court on the basis that, in this case, the wife was under undue influence from the husband who forced her to enter into an unfavorable contract.  Probably a court would not hesitate to nullify a usufruct in favour of a foreign husband.  In that case there is no longer an asset left even to divide up in the case of divorce. 

 

I assume a lease would be treated the same.  The advantage of a usufruct seems that it is stronger than a lease and not subject to a 30 year limit. Thailand doesn't have developed property leasing laws. So a alease is just a common contract binding two parties under the Civil and Commercial Code. It doesn't bind anyone else, such as a new owner, if the land is sold or inherited, whereas there is a Supreme Court judgement that ruled a usufruct should survive the death of the original usufructor until the death of the usufructee.

 

At the end of the day, if the land is in her village, you had been scarper if the marriage breaks down and the family will probably want you gone, if she dies too.  Nevertheless, I think a usufruct is probably worth the cost, particularly if not in the wife's village. It is an encumbrance on the title deed that makes it more difficult for anyone to sell the land from under you.   Even if you are already married, it is still a extra knot to be unravelled before kicking you out. 

Edited February 20, 2023 by Dogmatix

[nigelforbes]

25 minutes ago, Dogmatix said:

I had a usufruct before we registered our marriage, as advised by a lawyer. There are two problems with usufruct after marriage: 1) assets acquired after marriage are deemed marital property to be divided in the event of divorce; 2) under the Civil and Commercial Code a contract between man and wife can be deemed null and void by a court on the basis that, in this case, the wife was under undue influence from the husband who forced her to enter into an unfavorable contract.  Probably a court would not hesitate to nullify a usufruct in favour of a foreign husband.  In that case there is no longer an asset left even to divide up in the case of divorce. 

 

I assume a lease would be treated the same.  The advantage of a usufruct seems that it is stronger than a lease and not subject to a 30 year limit. Thailand doesn't have developed property leasing laws. So a alease is just a common contract binding two parties under the Civil and Commercial Code. It doesn't bind anyone else, such as a new owner, if the land is sold or inherited, whereas there is a Supreme Court judgement that ruled a usufruct should survive the death of the original usufructor until the death of the usufructee.

 

At the end of the day, if the land is in her village, you had been scarper if the marriage breaks down and the family will probably want you gone, if she dies too.  Nevertheless, I think a usufruct is probably worth the cost, particularly if not in the wife's village. It is an encumbrance on the title deed that makes it more difficult for anyone to sell the land from under you.   Even if you are already married, it is still a extra knot to be unravelled before kicking you out. 

Exactly, that's what we did also, for the same reasons.

[Expat68]

13 hours ago, bradiston said:

Did you get it translated?

No (it would cost me a fortune) but I trust what my wife says, even if she dies before me they can't kick me out of the house, it was like a ceremony that took place

[JimGant]

15 hours ago, Dogmatix said:

It doesn't bind anyone else, such as a new owner, if the land is sold or inherited, whereas there is a Supreme Court judgement that ruled a usufruct should survive the death of the original usufructor until the death of the usufructee.

Actually, a lease also survives the death of the lessor, or transfer of title.

 

Quote

Section 569. A contract of hire of immovable property is not extinguished by the transfer of ownership of the property hired.

Quote

Most importantly, leases are valid even upon the demise of the lessor, or in the event that the land is sold.

https://www.siam-legal.com/realestate/Leases.php

 

[ubonr1971]

23 hours ago, Aviatorhi said:

All this back and forth... Easy solution, don't get married. So simple, so easy.

BUT THEN.... I would never have had a child, never have made big money with our business, never have obtained a work permit, never have got thai citizenship. Need I go on

[ubonr1971]

23 hours ago, Dogmatix said:

I had a usufruct before we registered our marriage, as advised by a lawyer. There are two problems with usufruct after marriage: 1) assets acquired after marriage are deemed marital property to be divided in the event of divorce; 2) under the Civil and Commercial Code a contract between man and wife can be deemed null and void by a court on the basis that, in this case, the wife was under undue influence from the husband who forced her to enter into an unfavorable contract.  Probably a court would not hesitate to nullify a usufruct in favour of a foreign husband.  In that case there is no longer an asset left even to divide up in the case of divorce. 

 

I assume a lease would be treated the same.  The advantage of a usufruct seems that it is stronger than a lease and not subject to a 30 year limit. Thailand doesn't have developed property leasing laws. So a alease is just a common contract binding two parties under the Civil and Commercial Code. It doesn't bind anyone else, such as a new owner, if the land is sold or inherited, whereas there is a Supreme Court judgement that ruled a usufruct should survive the death of the original usufructor until the death of the usufructee.

 

At the end of the day, if the land is in her village, you had been scarper if the marriage breaks down and the family will probably want you gone, if she dies too.  Nevertheless, I think a usufruct is probably worth the cost, particularly if not in the wife's village. It is an encumbrance on the title deed that makes it more difficult for anyone to sell the land from under you.   Even if you are already married, it is still a extra knot to be unravelled before kicking you out. 

some of the comments on this website might not be on par with some of your comments:

 

https://www.siam-legal.com/realestate/Leases.php

[nigelforbes]

10 hours ago, ubonr1971 said:

some of the comments on this website might not be on par with some of your comments:

 

https://www.siam-legal.com/realestate/Leases.php

I think both the web site (Siam-Legal) and the previous poster may be correct, the problem is that the SL site doesn't consider a lease between man and wife and the implications of divorce laws which appear to take precedent. Your safest way forward appears to have your wife sell the land to a third party, on paper at least, and then for you to take the lease or usufruct from that person. That idea might work for you but I suspect your wife will be less than thrilled! 

[ubonr1971]

10 hours ago, nigelforbes said:

I think both the web site (Siam-Legal) and the previous poster may be correct, the problem is that the SL site doesn't consider a lease between man and wife and the implications of divorce laws which appear to take precedent. Your safest way forward appears to have your wife sell the land to a third party, on paper at least, and then for you to take the lease or usufruct from that person. That idea might work for you but I suspect your wife will be less than thrilled! 

Your last sentence is correct. 

 

Its hard to know which way to go actually. Both options (usufruct and registered lease) mean that the wife can sell the land although both options still give me legal rights. 

 

Many posters above talk about the usufruct being nullified upon divorce. I dont know what the case is with registered leases in this regard. 

 

If we were to move the chanote to my daughters name on the chanote, then I think PEA electric account cannot be opened. Water account can. I should ask PEA if its possible to put in mothers name. 

 

Its all a bit confusing

[LivinLOS]

On 2/18/2023 at 9:23 AM, Purdey said:

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.

Not true.. A usufuct agreement (between husband and wife) can be invalidated within 12 months after a divorce. I was told (but have no proof) that after 12 months from divorce date it then has to be honoured. 

[Purdey]

2 hours ago, LivinLOS said:

Not true.. A usufuct agreement (between husband and wife) can be invalidated within 12 months after a divorce. I was told (but have no proof) that after 12 months from divorce date it then has to be honoured. 

Yes, you are correct.

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. 

So the property would be divided as the norm in divorce cases. 

[LivinLOS]

21 hours ago, Purdey said:

Yes, you are correct.

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. 

So the property would be divided as the norm in divorce cases. 

I also hold one with my wife but I am of the opinion that if we split she gets the house and land anyway.. So I am not seeking that protection which others may.. Its a protection against her demise more than any other issue. 

[ubonr1971]

On 2/28/2023 at 7:47 AM, LivinLOS said:

Not true.. A usufuct agreement (between husband and wife) can be invalidated within 12 months after a divorce. I was told (but have no proof) that after 12 months from divorce date it then has to be honoured. 

So is a registered 30 year lease better?