Land ownership

[BTB1977]

WE. Are you disillusioned ¿¿¿ Where would you ever get the idea a you can own land. 

[superal]

13 hours ago, ThaiLawOnline said:

 

Hi,

 

I am Sebastien and work for more than 15 years with Thai attorneys. Some information above is misleading or doesn't have enough info to answer. I have seen cases like that many times, when the Thai wife passes away before the foreigner. Below is what is important:

 

1. First you need to know about the title deeds of land. Nobody asked you that because most people on Forum are not attorneys. For example, you can not register a usufruct on land that is Por Bor Tor 5 or Sor Por Kor. I presume they are chanotte but some farm land is not....

 

2. Second, there is a difference between inheritance and having the right to live on the property. The usufruct if the Land is Nor Sor Sam or higher could give you the right to live there, after she passes away. But not ownership. Usufruct is at section 1417 of Commercial and Civil Code of Thailand.  (hereafter CCCT)

 

3. For inheritance ; It is done according to a Last Will. If none, then it is according to the law and you must verify if there are parents or children alive. The spouse is also a legal heir. If no children, no parents alive and you are the legal husband, you will inherit of everything according to sections 1629 and 1635 CCCT. If there is a parent or child or children alive, by law, you get 50%.

 

4. Third, it is not the Court that gives you right to sell. If something happens to her before you. You have to deal with inheritance if you are appointed executor by a Last Will or if you are a legal spouse under Thai Law and statutory heir.

 

You go to court and they appoint you to be executor, with or without a last Will. As executor, then you go to the land department and and ask to transfer to a third party. It is the LAND CODE that says if it is not authorized (section 93 especially).

 

Here are a translation of the Land Code by the Supreme Court of Thailand:

http://web.krisdika.go.th/data/outsitedata/outsite21/file/Act_Promulgating_the_Land_Code_BE_2497_(1954).pdf

 

You need the authorization to keep it on your name and they never do it. They delegate the powers to land department. So according so section 94, you have 180 days to 1 year to dispose of the property. The Court grants you to be executor and as executor, the land department will give you time to transfer or sell. If you sell, you can keep the proceeds. You could also transfer to a Thai person that you know and ask in return a contract to live there until you die. The problem is if you do wish the real estate to by given to a foreigner later.... There are ways around but it's land mine and could be difficult.

 

If this land is chanotte, it might worth it to do both:

 

A) Last Wills + usufruct or

B) Last Wills and Sap Ing Sith rights (which is ownership for 30 years max and cost 20,000 baht to register). You can sell or transfer the balance of our 30 years to a third party.

 

The land department will probably refuse a lease between husband and wife. It could also protect her that you make a last Will depending if you have children or parents alive. The Last Will makes it clear.

 

Some Law firms in Bangkok asks crazy prices for ONE Will --) 25,000 baht and up. We can do exactly the same much cheaper, anywhere in Thailand.  Like 2 Wills and a usufruct for about 15,000 baht, Thai and English, instructions for registration, etc.

 

If you want info, let me know.

 

You need the authorization to keep it on your name and they never do it. They delegate the powers to land department. So according so section 94, you have 180 days to 1 year to dispose of the property. The Court grants you to be executor and as executor, the land department will give you time to transfer or sell. If you sell, you can keep the proceeds. You could also transfer to a Thai person that you know and ask in return a contract to live there until you die. The problem is if you do wish the real estate to by given to a foreigner later.... There are ways around but it's land mine and could be

 

Are you saying that following a sale a non Thai can benefit from the sale of not only the house but also the land which under the Thai law a foreigner is not allowed to own  ?

[bkk6060]

16 hours ago, Brick Top said:

Incorrect , he can legally own the house and have it registered in his name but not the land 

Incorrect.  He said  ¨we own the land¨.  Nothing about a house in the quotes I mentioned.  Please fully read before you post false information.

[khunPer]

17 hours ago, ThaiLawOnline said:

 

 

 

I read that book "Thai Law for foreigners" when it went out around 2008.  I found few mistakes, even if it is normally a good summary.

 

You are making a legal mistake if you consider usufruct and right of habitation as "servitude".  A servitude is a French civil law concept and defined in th CCCT., just like a usufruct. Common Law countries often call servitude "right of ways". It is used to give access for example of a piece of land. A usufruct is a real right, you can call it liens or an encumbrance on a title deed but the real term would be a "dismember" part of property rights, divided in usus, fructus and abusus in civil law. The usufruct between 1 + 2 but not 3.

 

Servitude, Superficies, Right of habitation, usufruct are all part of book 4 of the CCCT. Servitude are at 1387 and different than usufruct 1417 or right of habitation at 1402. Right of habitation is not as strong as usufruct.

Sap Ing Sith are also different and could be interesting. Because it started in 2019, I never seen a married couple doing it and I am not sure how the land department would react.

The important part is that it's registered on the land's title deed as a "servitude", and the registered right therefore follows the land.

[scorecard]

15 hours ago, MrJ2U said:

Nothing wrong with asking a question on the forum.

 

But also a good idea to seek professional advice. 

 

 

Sure but check that the person/company etc., giving the advice is qualified in this area of the law, highly knowledgeable and experienced in this area of the law.

 

 

[Muhendis]

18 hours ago, BenStark said:

f you divorce from your wife, and the usufruct was created after you were married, the wife can ask the court to invalidate the usufruct

How so?

This is a discussion about the man's hypothetical problem of land ownership After His Wife has Died.

It would be spiritually scary if the dead wife were to ask the court to do anything......????

[ThaiLawOnline]

3 hours ago, khunPer said:

The important part is that it's registered on the land's title deed as a "servitude", and the registered right therefore follows the land.

Sorry, you really do not understand these concepts to write that.

 

What you wrote is similar to that:

"The important part is that's is registered on the land title deed as a mortgage" when you talk about a lease or a usufruct. Mortgage is different than a lease. 

A servitude is not a word that means "registration on a title deed". It is a concept, like lease, usufruct, right of habitation, mortgage, superficies, sale with rights of redemption" all of them can be registered on a title deed and a servitude is another one, a "right of way" of you wish, defined by CCCT in Thailand. Some defined it a "easement". That is a servitude.

 

The registration is what we call "publicity' in Civil Law and it means that iff affects third parties because of the registration. Using the word "servitude'' like you do it a mistake in law. It makes problems on Internet: People confuse information or misinformation. Anyone can write anything and people will believe it because it is on Thailandlawonline like BenStark said or because it is written by me. No, the law is the law and referring directly to the law is the way to get real legal information. See document attached. That is servitude describe in Thai law. (translation in English),

[itsari]

On 7/7/2023 at 8:46 PM, bkk6060 said:

 

Who is we?  If you are not Thai you own nothing.

Legally you are correct , yet you know as well as 99 percent of expats know where the money came from to buy the land . So i think he has a right to say we . 

[ThaiLawOnline]

8 hours ago, superal said:

 

Are you saying that following a sale a non Thai can benefit from the sale of not only the house but also the land which under the Thai law a foreigner is not allowed to own  ?

Yes, and I did it many times. This is where most foreigners do not understand:

 

1) A usufruct is not transmissible. It can give the right to use, possess, enjoy the land after the owner passes away to a person called the usufructuary. What is important in Thailand is to register the usufruct.

2) Ownership of land to foreigners is not forbidden. There are many exceptions in the law. Like a BOI company, someone investing 40 million baht by a decree, a gift from the king (yes, I heard about 1 case like that) and others do exist. Foreigners can INHERIT the land. You can read it in the land code (I made a link above). But they need the approval to the authorities which i think is the ministry of interior (Could be ministry of land), but they delegate their power to the land department. And in practice, I think I did 3-5 cases in 15 years, always refuse. Because you can ask to transfer to a foreigner... The law says when there is a refusal, you have a delay. There are other requirements in regulations : Like you must make an announcement somewhere, I can't recall. Often on the board of the land department, sometimes adding the tessaban or amphur, sometimes in the newspapers.

 

I explain you one case I remember very well: a foreigner bought a property somewhere in Isaan. He paid 4 million himself. He was married. The wife paid nothing. No agreement, and no last Will for him or her. His wife dies suddenly. No children. This is complicated as we could say that 50% of the land/building is common property, he could get another 50% of 50% of his wife as her parents were still alive. So by law 75% to him and 25% to parents but the property is under the name of his deceased wife. Our client went to court, asked to be appointed as executor. We negotiated a deal with the parents of his deceased wife. They agreed to give him all rights for something like 300,000 and I can not recall. He was young (about 40 yo) had money and a good job. I think he was working abroad but he did like Isaan and wanted to stay in the property. He got a new girlfriend quickly and he transfer the property as executor from his deceased wife to the new girlfriend who signed a usufruct + another contract to protect him more. That was probably 10 years ago and I never heard of him after. The whole process took maybe 10 months: Going to court for appointing the executor, negotiating with the parents-in-law, making an agreement in Court, going to land department, getting a refusal if I remember to continue. Finding a Thai person to transfer when he got a new Thai partner, announcements, and finally the transfer into the delays. And we registered rights to protect him on top. He paid around 50,000 baht for all services including Court and land department, interpreter, some translation and 2 contracts. That was way too low for the work we did. You are talking about months, court, interpreter, land department, announcements, transfer, contracts, registration, etc.

[ThaiLawOnline]

1 hour ago, Muhendis said:

How so?

This is a discussion about the man's hypothetical problem of land ownership After His Wife has Died.

It would be spiritually scary if the dead wife were to ask the court to do anything......????

Exactly. Let him give us ONE decision from a Thai court that cancels a usufruct in a divorce. I know none and I am waiting for someone to show me one for 10-15 years and more. I searched and searched. We also checked the supreme court judgments under 1469 and never could find one.

 

I would oppose 1471 to 1469 to any Thai lawyer thinking the opposite. But I never seen it plead in Court. I have seen tons of cases where Thai lawyers say the land is PERSONAL PROPERTY as non married couples, under 1471. Judges will say it is a "partnership" even if not married and separate 50-50. I also did divorced with gay people, so unmarried under Thai law. it is 50-50. 95% of these cases are solved in negotiation. Only stubborn Thai believe that foreigners can't own nothing in Thailand but in Court, it does not work this way.

[khunPer]

7 hours ago, ThaiLawOnline said:

What you wrote is similar to that:

"The important part is that's is registered on the land title deed as a mortgage" when you talk about a lease or a usufruct. Mortgage is different than a lease. 

A servitude is not a word that means "registration on a title deed". It is a concept, like lease, usufruct, right of habitation, mortgage, superficies, sale with rights of redemption" all of them can be registered on a title deed and a servitude is another one, a "right of way" of you wish, defined by CCCT in Thailand. Some defined it a "easement". That is a servitude.

Thanks for enlighten me...???? The important part – as I wrote in the comments – is that it's registered on the title deed, no matter what the correct juristic word for the said right is. I'm quite sure that the other readers understand, what I'm saying...????

[KayDeeDee]

Thanks for all the advice  ,  i think form a small company for the small farm  , see a Lawyer about 

  creating a Will.  I do not think there would be a need for an  Usufruct  , but I'll let a Lawyer 

   advise me .  Thanks again .   

[sirineou]

1 minute ago, KayDeeDee said:

Thanks for all the advice  ,  i think form a small company for the small farm  , see a Lawyer about 

  creating a Will.  I do not think there would be a need for an  Usufruct  , but I'll let a Lawyer 

   advise me .  Thanks again .   

Excellent decision.

A will is a must, even if you are entitle to certain things , it might take a while to deal with them in the courts, but if there is a will, It should  be a straights process. 

As far as I am concerned with the ownership in the unfortunate , but unlikely event that my wife , Personally, I would be liquidating, some, and give to my sisters wife some .I certainly will not be staying in Thailand without my wife anyway. So the having to sell after the wife's passing is not a problem with me. The main reason I am here is because of my wife.

But that's a personal preference. Others might  might feel different. 

Seeing a lawyer to examine your options is the beast idea!! There might be options that we might know.

Good luck , and lats hope none of these are ever needed and our wives live a long a health lifes.  

 

[Brick Top]

On 7/8/2023 at 9:51 PM, Liverpool Lou said:

What your friend did is illegal if the company has no other purpose.

Wow , you taught me something I learned 22 years ago when I bought my Villa in Phuket and set up a Thai Company , everyone knows its illegal but so is prostitution here and I have never had any problems with it 

[Brick Top]

On 7/9/2023 at 11:30 AM, bkk6060 said:

Incorrect.  He said  ¨we own the land¨.  Nothing about a house in the quotes I mentioned.  Please fully read before you post false information.

<deleted> !

I susgest you yourself read it all over again , he mentions there going to build a house on the land.

Also were did I write false information ?

[Brick Top]

On 7/9/2023 at 11:30 AM, bkk6060 said:

Incorrect.  He said  ¨we own the land¨.  Nothing about a house in the quotes I mentioned.  Please fully read before you post false information.

Next time when your Keyboard Warrioring put your glasses on so at least that way your not making yourself look like a complete <deleted>