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

[ubonr1971]

4 hours ago, indyo said:

100% life time usufruct at your name and will to your kids

and if you are married and divorce the usufruct is nullified?

[nigelforbes]

28 minutes ago, ubonr1971 said:

So are you saying that a 30 year lease registered at the land office is better? With evidence that taxes were paid when registering makes it set in stone as long as terms of the lease are adhered to?

I can't answer that question because I don't know anything about lease, perhaps others can advise.

[KhunLA]

35 minutes ago, ubonr1971 said:

.... as long as terms of the lease are adhered to?

Goes both ways.   Do you really want to be obligated to pay 30 years, if the relationship ends badly.  The tax part of it is minimal.

[bradiston]

3 hours ago, KhunLA said:

Why would you need ?

 

You and holder of chanote, simply say you want a usufrunct, and for simple fee ~100 baht, the prints off the fill in the blanks form (filled out) and you both sign.

 

Don't need lawyer or anything.   Don't know why people think they need lawyers for everything.

Make sure to check your name's spelt right on the chanote after the addition of the usufruct. My land office got it wrong and had to redo it, very grumpily. We didn't use a lawyer. I can imagine the sharp intake of breath in his office and something like "Must go to court. Could take many months. But no problem. I will take care for 100k."

[KhaoYai]

On 2/18/2023 at 3:55 AM, nigelforbes said:

An usufruct between husband and wife is not valid.

I've heard this said before but I've never seen any evidence of it. I also know several people who hold Usufructs over properties that are registered in their wife's name.

 

Basically, in my opinion, if the Land Office registers the Usufruct on the Chanotte and the agreement is constructed in accordance with the law, the Usufruct would be considered legal by a Thai court.

 

@ubonar1971

 

You need to get a good Thai lawyer to advise you on this - and one who knows about Usufruct construction.  I would recommend one but she only covers the Korat area.

 

You may have protection in other ways........can I ask.....were you married when both purchases were made and did your wife have the money to buy her half before you were married?  If she did, can she prove that - i.e. was the cash in the bank.  On divorce, any assets acquired after marriage would normally be split 50/50 between husband and wife. 

 

However, asetts held before marriage are considered as the personal property of the holder and do not form part of the marital assets to be split on divorce. Cash is considered an asset and if its used to buy a property - the holder would have to prove they had that cash before the marriage and that it was used to buy the land.

 

I have never believed the viewpoint that the foreigner always loses in a Thai court. They only lose if they don't do things properly in the first place.  I've had 2 ocassions where I've had to use the Thai legal system to recover money and assets - one against a hospital and one against an ex wife, I won both of them and was paid out/recovered my assets in full.

 

It may not lay so easily, protecting yourself from any future possibilities when that protection is from a current wife but that's down to the stupid land laws that prevent foreigners from owning land.  In my opinion a married foreigner should be allowed to buy land jointly with their spouse - subject to conditions such as: It must be used for the purpose of providing a home for the couple and.........It must be sold/transferred upon divorce etc. etc. But we are where we are so if you don't want to lose out - protect yourself.

 

That might not entirely stop the activities of the Thai female ker-ching brigade who fleece their lovestruck, ignorant foreigner husbands but it would severely curtail their activities.

[nigelforbes]

28 minutes ago, KhaoYai said:

I've heard this said before but I've never seen any evidence of it. I also know several people who hold Usufructs over properties that are registered in their wife's name.

 

Basically, in my opinion, if the Land Office registers the Usufruct on the Chanotte and the agreement is constructed in accordance with the law, the Usufruct would be considered legal by a Thai court.

 

@ubonar1971

 

You need to get a good Thai lawyer to advise you on this - and one who knows about Usufruct construction.  I would recommend one but she only covers the Korat area.

 

You may have protection in other ways........can I ask.....were you married when both purchases were made and did your wife have the money to buy her half before you were married?  If she did, can she prove that - i.e. was the cash in the bank.  On divorce, any assets acquired after marriage would normally be split 50/50 between husband and wife. 

 

However, asetts held before marriage are considered as the personal property of the holder and do not form part of the marital assets to be split on divorce. Cash is considered an asset and if its used to buy a property - the holder would have to prove they had that cash before the marriage and that it was used to buy the land.

 

I have never believed the viewpoint that the foreigner always loses in a Thai court. They only lose if they don't do things properly in the first place.  I've had 2 ocassions where I've had to use the Thai legal system to recover money and assets - one against a hospital and one against an ex wife, I won both of them and was paid out/recovered my assets in full.

 

It may not lay so easily, protecting yourself from any future possibilities when that protection is from a current wife but that's down to the stupid land laws that prevent foreigners from owning land.  In my opinion a married foreigner should be allowed to buy land jointly with their spouse - subject to conditions such as: It must be used for the purpose of providing a home for the couple and.........It must be sold/transferred upon divorce etc. etc. But we are where we are so if you don't want to lose out - protect yourself.

 

That might not entirely stop the activities of the Thai female ker-ching brigade who fleece their lovestruck, ignorant foreigner husbands but it would severely curtail their activities.

You should read the entire thread, it's explained further on.

[AhFarangJa]

On 2/19/2023 at 7:25 AM, KhunLA said:

You were charged to nullify ?  SCAM

It's like a ฿20 paperwork fee, at Udon Thani land office.   7 usufructs cancelled/removed and never paid to do.

 

Did a lawyer do that for you, if so, might want to do things yourself at the land office.

I think it was more a case of a fee to speed up the process. We had our selling agent there, and we were hustled from one desk to another. In and out, all done in less than one hour.

[Venom]

19 hours ago, ubonr1971 said:

Incorrect. PEA electric do not allow account in childs name. Water can do

No problem. Keep the electric in the mother's name. The title deeds can only be put in the children's name through the Thai mother, you cannot purchase property outright in the children's name until they turn 20. 

 

 

 

 

 

 

 

[AhFarangJa]

On 2/19/2023 at 7:03 AM, nigelforbes said:

You haven't understood.

 

The purpose of an usufruct is to guarantee the holder the right to live in the property in accordance with the specified term, be it 30 years or life. If the usufruct is granted by a spouse, divorce nullifies the usufruct, that has been proven in divorce court as other posters have confirmed. Therefore, the usufruct does not provide the protection that was expected and is therefore not valid. 

I was led to understand as the house was in my name, the land in my Wife's. Therefore, she could not sell the land from under me, as I had a right to live in the house as per a userfruct. However, on closer examination, I have discovered that in Thai law under clauses 1469, governing property between spouses, the Court can nullify the userfruct as a division of the assets. 

[KhunLA]

14 minutes ago, AhFarangJa said:

I think it was more a case of a fee to speed up the process. We had our selling agent there, and we were hustled from one desk to another. In and out, all done in less than one hour.

So it wasn't a 'nullify' fee, just a 'hold your hand' fee from someone helping you do simply paperwork/jump the Q.

 

 

[nigelforbes]

11 minutes ago, AhFarangJa said:

I was led to understand as the house was in my name, the land in my Wife's. Therefore, she could not sell the land from under me, as I had a right to live in the house as per a userfruct. However, on closer examination, I have discovered that in Thai law under clauses 1469, governing property between spouses, the Court can nullify the userfruct as a division of the assets. 

@KhaoYai

 

[JimGant]

On 2/19/2023 at 7:03 AM, nigelforbes said:

Therefore, the usufruct does not provide the protection that was expected and is therefore not valid. 

Perfectly valid for those of us in solid marriages. Since I can't own the wife's land upon her death, a usufruct will allow me to keep living on that land regardless of what Thai takes title.

 

Quote

A right of usufruct in Thailand is usually a legal instrument to protect a foreign spouse in case the property is registered on the Thai spouse's name. It enables the foreign spouse to use the property when he survives the Thai spouse and registered owner. The Thai spouse could for example leave the property to the couple's children, if of Thai nationality, but warrants by way of a registered right of usufruct that his or her foreign spouse has the use and benefit of the property during his lifetime. Upon the usufructuary's death the usufruct comes to an end and the Thai registered owner(s) receives full unencumbered ownership again.

https://www.samuiforsale.com/family-law/usufruct-in-a-thai-marriage.html

Reading the material on 30 year leases, they're a different animal under Thai law and, unlike a usufruct, appear to be divorce-proof. Would need someone versed in Thai law to confirm that, however.

[nigelforbes]

4 minutes ago, JimGant said:

Perfectly valid for those of us in solid marriages. Since I can't own the wife's land upon her death, a usufruct will allow me to keep living on that land regardless of what Thai takes title.

 

Reading the material on 30 year leases, they're a different animal under Thai law and, unlike a usufruct, appear to be divorce-proof. Would need someone versed in Thai law to confirm that, however.

But if the house is willed to you, you will have one year to sell it so technically you would own it, albeit for one year.

 

And

 

We all hope we are in solid marriages except the usufruct and Thai divorce law comes into play if we aren't, the problem is that none of us have crystal balls that work.

[KhunLA]

7 minutes ago, nigelforbes said:

But if the house is willed to you, you will have one year to sell it so technically you would own it, albeit for one year.

 

And

 

We all hope we are in solid marriages except the usufruct and Thai divorce law comes into play if we aren't, the problem is that none of us have crystal balls that work.

A contested divorce has to be adjudicated, as with all contested contract.  With appeal process, so no guarantee of outcome for either party.

 

You could always do the 3rd party lease to trusted friend, but again, that would be scrutinized in court.

 

Again, if you have to ask these questions, since not sure of a lasting relationship with partner .... rent, or consider any investment, a gift for putting up with you.  Hopefully longer than your 1 yr visa lasts or worse, tourist visa ????

 

If a long distance relationship ... oh well, som naa na, if you're that stupid.

 

Met a few farangs,  'Oh yea, have Thai wife' ... 'see her 4 weeks a year' ????

"Oh him, that's my cousin, he stays here when you're not ... to help around the house" ????????????

[nigelforbes]

2 minutes ago, KhunLA said:

A contested divorce has to be adjudicated, as with all contested contract.  With appeal process, so no guarantee of outcome for either party.

 

You could always do the 3rd party lease to trusted friend, but again, that would be scrutinized in court.

 

Again, if you have to ask these questions, since not sure of a lasting relationship with partner .... rent, or consider any investment, a gift for putting up with you.  Hopefully longer than your 1 yr visa lasts or worse, tourist visa ????

 

If a long distance relationship ... oh well, som naa na, if you're that stupid.

 

Met a few farangs,  'Oh yea, have Thai wife' ... 'see her 4 weeks a year' ????

"Oh him, that's my cousin, he stays here when you're not ... to help around the house" ????????????

I'm not sure that the cancellation of the usufruct can be contested, that appears to be a right regardless of the asset split at divorce. 

[KhunLA]

6 minutes ago, nigelforbes said:

I'm not sure that the cancellation of the usufruct can be contested, that appears to be a right regardless of the asset split at divorce. 

All things equal/justice, any asset or contract in marriage/business,  when adjudicated can by compensated for, one way or the other, if deemed so.

 

One just has to decide if worth the hassle or expense to bother with the courts ... or simply avoid, and rent, buy a condo, if you have doubts already.

 

Obviously so,, since asking, so why do here, what you probably wouldn't do in you home country.

 

Because this one loves you, states the guy on #4 marriage ... ???? 

 

If still going forward, make sure your usufruct is for use & modify.  If a whiff of pending divorce, you could always bulldoze the house, as you right, to modify ????

[ubonr1971]

3 hours ago, AhFarangJa said:

I was led to understand as the house was in my name, the land in my Wife's. Therefore, she could not sell the land from under me, as I had a right to live in the house as per a userfruct. However, on closer examination, I have discovered that in Thai law under clauses 1469, governing property between spouses, the Court can nullify the userfruct as a division of the assets. 

on the basis of this, do you think I would be better off taking a 30 yr lease registered at the land office and paid taxes on this lease for the 30 yrs as evidence to this fact?

[AhFarangJa]

1 hour ago, ubonr1971 said:

on the basis of this, do you think I would be better off taking a 30 yr lease registered at the land office and paid taxes on this lease for the 30 yrs as evidence to this fact?

I am by no means a lawyer, so professional advice would be the way to go. Having said that it seems that a lease on the land is possibly more secure than a userfruct.

Good Luck.

[nigelforbes]

One other aspect to explore perhaps is a superficies, which can be willed and I think but am not 100% certain, cannot be cancelled on divorce.

[khunPer]

On 2/19/2023 at 5:16 AM, paddypower said:

Thanks for that. Very impressive summary, which will be useful to us. Thais own land, thru a company. (we're both expats and have zero %). so, do I understand you,, if we go to get a  30 year lease, we have to pay tax ( that is my understanding). But we can avoid paying tax,if we register an Usufruct?

On 2/18/2023 at 12:43 PM, connda said:

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.

A registered lease/rent for 3 to 30 years gives you same servitude protection as a registered usufruct; both are servitudes written on the back of the title deeds in the land office.

 

Tax at the land office is 1,1% – 1% registration tax plus 0.1% stamps of the total agreed lease sum – which for a 30 year lease can sum up to a bit. Furthermore, the landlord has to pay rental income tax. Tax is often a reason to make only 3-years rentals – many for example offers 3x3 years – as it's not registered, presuming that a landlord might avoid to pay any tax.

 

However, you have no legal protection on more than one rental period up to three years, the additional period will be void if you try to claim your rights in a legal way, as any rent period longer than 3 years has to be registered to be legal. I.e., anything agreed beyond the legal terms might not be worth the recycling-value of the contract-paper.

 

A usufruct is cheap to make – costs about 100 baht in fee plus the pre-printed contract from a paper shop – so no tax question, if no additional payment change hands. Usufruct can run either up to 30 years or for life. It cannot be transferred to any other person, which means that when the usufruct holder dies, the agreement is terminated, no matter if a period is stated.

 

I'm sad to mention it, but if – in worst case scenario – the land change for example owner, and the new owner has other plans for the use of the land, a suddently death of a usufruct holder might be a solution; in case that other unpleasant things don't make the holder of the usufruct to wish to leave and terminate the agreement. In short terms: One shall always be worth more alive than dead in Thailand.

 

There are few cases where a land office deny to register a usufruct to a foreigner.

[khunPer]

On 2/18/2023 at 9:33 AM, 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?

I din't understand, what you mean. An (adult) person with a name in a house book, can have electric supply form PEA. As I said before, my girlfriend got PEA-electricity for my house – yes, I'm the house-owner – on her house book registration at her parents home about 1,000 kilometers up north. During building construction we had a temporary one-phase 16A PEA-supply at a higher unit rate. I used my girlfriend to register, permanent supply, instead of waiting for house book to be issued.

 

You should ask your local PEA if that is possible, where you live...????

[bradiston]

20 minutes ago, khunPer said:

A registered lease/rent for 3 to 30 years gives you same servitude protection as a registered usufruct; both are servitudes written on the back of the title deeds in the land office.

 

Tax at the land office is 1,1% – 1% registration tax plus 0.1% stamps of the total agreed lease sum – which for a 30 year lease can sum up to a bit. Furthermore, the landlord has to pay rental income tax. Tax is often a reason to make only 3-years rentals – many for example offers 3x3 years – as it's not registered, presuming that a landlord might avoid to pay any tax.

 

However, you have no legal protection on more than one rental period up to three years, the additional period will be void if you try to claim your rights in a legal way, as any rent period longer than 3 years has to be registered to be legal. I.e., anything agreed beyond the legal terms might not be worth the recycling-value of the contract-paper.

 

A usufruct is cheap to make – costs about 100 baht in fee plus the pre-printed contract from a paper shop – so no tax question, if no additional payment change hands. Usufruct can run either up to 30 years or for life. It cannot be transferred to any other person, which means that when the usufruct holder dies, the agreement is terminated, no matter if a period is stated.

 

I'm sad to mention it, but if – in worst case scenario – the land change for example owner, and the new owner has other plans for the use of the land, a suddently death of a usufruct holder might be a solution; in case that other unpleasant things don't make the holder of the usufruct to wish to leave and terminate the agreement. In short terms: One shall always be worth more alive than dead in Thailand.

 

There are few cases where a land office deny to register a usufruct to a foreigner.

I started off with a 3 year lease on land, but written into it was a clause stating the lessor would sell the land to my daughter within the term of the lease. Which he did. But as we later discovered, he was by no means obliged to do so because in another, similar case, he went to court to deny the lessee the right to buy, even though it was also a clause in the lease. The judge's emphatic opinion was that a lease cannot be construed as a contract to sell, nor make up any part of a sales contract. So lessee beware. That's why a usufruct, IMHO, is a much simpler legal instrument to secure some form of right to occupy. Leases may often entail clauses whereby the lessor is able to claim all sorts of expenses, upkeep charges, access rights etc etc. It's a nightmare. I showed the lease I was initially presented with to an American lawyer in an American/Thai law firm in Bangkok. Almost the whole document was redlined. One comment was "This is exactly what you don't want!". And his opinion didn't come cheap, either. So leases I think can present the lessee with a potential minefield of dubious clauses, all of which have to be thrashed out before signing. Of course, it's part of due diligence, and there is no escaping it. My daughter and I got a walk in usufruct at our land office. It's a standard procedure. The rules are written out in Thai law. Nobody is pulling a fast one. It was just mutually agreed between us.

 

https://www.samuiforsale.com/real-rights/usufruct-property-rights.html

 

This is a site I've used since coming to Thailand 17 years ago. They have a huge library of downloadable sample documents, templates etc, which can be used on payment of I think very reasonable rates, and an invaluable library of English versions of Thai laws. They used to have, not sure if it's still the case, a free online consultation service.

[Expat68]

I went to the Tessabarn with my wife regarding our house and had an agreement signed by the head of the  Tessabarn. There must be 150 pages of A4 pages, I had to speak a little Thai to the said person, if anything happens to my wife nobody can kick me out

[khunPer]

15 minutes ago, bradiston said:

I started off with a 3 year lease on land, but written into it was a clause stating the lessor would sell the land to my daughter within the term of the lease. Which he did. But as we later discovered, he was by no means obliged to do so because in another, similar case, he went to court to deny the lessee the right to buy, even though it was also a clause in the lease. The judge's emphatic opinion was that a lease cannot be construed as a contract to sell, nor make up any part of a sales contract. So lessee beware. That's why a usufruct, IMHO, is a much simpler legal instrument to secure some form of right to occupy. Leases may often entail clauses whereby the lessor is able to claim all sorts of expenses, upkeep charges, access rights etc etc. It's a nightmare. I showed the lease I was initially presented with to an American lawyer in an American/Thai law firm in Bangkok. Almost the whole document was redlined. One comment was "This is exactly what you don't want!". And his opinion didn't come cheap, either. So leases I think can present the lessee with a potential minefield of dubious clauses, all of which have to be thrashed out before signing. Of course, it's part of due diligence, and there is no escaping it. My daughter and I got a walk in usufruct at our land office. It's a standard procedure. The rules are written out in Thai law. Nobody is pulling a fast one. It was just mutually agreed between us.

 

https://www.samuiforsale.com/real-rights/usufruct-property-rights.html

 

This is a site I've used since coming to Thailand 17 years ago. They have a huge library of downloadable sample documents, templates etc, which can be used on payment of I think very reasonable rates, and an invaluable library of English versions of Thai laws. They used to have, not sure if it's still the case, a free online consultation service.

You can use a standrad lease agreement instead, it works well and does not have any weird clauses. The benefit is, that it can be transferred to third party, which might be a good life-insurance, when using somebody else's land...

[scorecard]

On 2/18/2023 at 12:51 PM, 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. 

Perhaps worth adding, the main reason to put a usfruct in my name on sons land was because his wifes demanding/greedy/unethical elder brother and sisters were all demanding that their younger sister (my son's wife) was the real owner of the land from the date she married my son (their interpreation of Thai law, about which they know nothing, they make up laws regularly to suit what they want. 

 

Son went to our trusted lawyer, she confirmed that son's wife was NOT entitled to be the owner from date of marriage. Lawyer also suggested son add an usufruct showing my name. All done.

 

Next time this subject came up my son was waiting with a copy of the column on the back of the land title showing the usufruct.

 

They demanded this was not legal, son got his lawyer on the phone and she insisted the usufruct was legal. Then they tried to inist cannot be in the name of a farang (as above they are all armchairs lawyers who have no knowledge whatever of any Thai laws. Lawyer insisted it was legal ans she sent the website address of the appropriate law to my son. Son resent the webiste adrress to his several in-laws. Then no further discussion except me being attacked (one of several times) for stealing things from Thai people.

 

Son responded to this with 'show me the papers for your pick up truck, I'll give a copy to dad, maybe he will use these papers to steal your pick up'. They froze, subject dropped. 

[bradiston]

2 hours ago, Expat68 said:

I went to the Tessabarn with my wife regarding our house and had an agreement signed by the head of the  Tessabarn. There must be 150 pages of A4 pages, I had to speak a little Thai to the said person, if anything happens to my wife nobody can kick me out

Did you get it translated?

[KhaoYai]

11 hours ago, nigelforbes said:

You should read the entire thread, it's explained further on.

I note the explanation says a court can nulify a Usufruct - not that they do.  I had a court in the UK try to put their own slant on things once and had to appeal the decision.  The appeal court found for me and stated that the High Court gave no material reason for their decision and that such decisons created 'Case Law' which could not be made on a whim.

 

So yes, courts can sometimes go against the law but they have to have a solid reason for doing so.  I would think that the clause quoted will actually state more than simply a court can nulify a Usufruct - i.e. give the circumstances under which that can happen.  If not, then no law is actually a law.

 

A Usufruct, properly constructed, witnessed and registered, is a legal document that confers rights and consequences for both parties.  It would be wrong of a court to simply nulify such a document simply because it wanted to.

[Aviatorhi]

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

[KhaoYai]

OP, as I have said before - you need to speak to a lawyer.

 

One thing that you might be interested in - it is perfectly legal for you to hold a legal charge over the property - i.e. a mortgage in the same way as a bank does.  However, not all Land Offices will accept a 'foreign mortgage' - you need to check with yours, mine does.

 

The downside is that as you are married already and at the moment, presumably don't have a charge on the property, the value of that mortgage would probably be added to the marital assets in a divorce case so you'd only get 50%.

 

I hold a Usufruct and also have a Power of Atorney that allows me to sell the land my house is on and keep the money. The POA was signed and witnessed in a lawyer's office. I'm perfectly happy that nobody can touch my home in Thailand and I have as much protection as is possible under current Thai law.

 

Neither of those though, are in my wife's name - I don't have a wife so I don't have that problem.  My lawyer who incidentally, will become a judge later this year, tells me both documents are fully legal. I trust her knowledge.

 

You will be able to afford yourself some protection even if it doesn't appear as strong as that in your home country.  Even that is questionable though isn't it?  Look at how many wives 'fleece' their husbands in the West when they divorce.  At least in Thailand, assets held before marriage don't form part of the marital assets in a divorce case.

[KhaoYai]

 

10 hours ago, KhunLA said:

Met a few farangs,  'Oh yea, have Thai wife' ... 'see her 4 weeks a year' ????

"Oh him, that's my cousin, he stays here when you're not ... to help around the house" ????????????

Quite so, I met my wife's cousin - just for a few minutes as I was kicking them both out!  Its strange that so many Thai women are so close to their 'cousin'. I recommend all foreigners that live apart from their Thai wives to put in a few 'surprise visits' - a good proportion of them will be surprised at what they find. A frend installed some secret IP cameras at his Thai home - a divorce quickly followed.

 

One of the plus points of Thai law on land ownership - my ex couldn't touch my house as I don't 'own' it do I?.  Mine is in the name of a trusted friend of over 20 years and I also have the other protection I mentioned in another reply.  My ex tried but fell at the first hurdle.