Land ownership

[Liverpool Lou]

6 hours ago, BenStark said:

You always can sell to a company which you are the director of. Majority of foreigners own property that way

Illegally.   Unless the company is legitimately trading.

[BenStark]

1 minute ago, Liverpool Lou said:

Who are you?  He can own the property on the land.

Sorry to break it for you Lou, but he can only own the property on the land if it was built with the building licence in his name.

 

The property can not be separated from the land AFTER it has been registered

[BenStark]

Just now, Liverpool Lou said:

Illegally.   Unless the company is legitimately trading.

OK mr Pedant, how many illegal companies are active that way for decades already?

[Liverpool Lou]

6 hours ago, bradiston said:

6 hours ago, BenStark said:

You always can sell to a company which you are the director of. Majority of foreigners own property that way

A novel idea. Well, to me, at least. Has it been tested?

Yes, it has been tested, it is illegal if the company is set up solely for that purpose.   You could lose the property if it was deemed to have been illegally bought/owned by a foreigner.

[BenStark]

Just now, Liverpool Lou said:

Yes, it has been tested, it is illegal if the company is set up solely for that purpose.   You could lose the property if it was deemed to have been illegally bought/owned by a foreigner.

How many you know that lost their property because it was deemed an illegal company?

[Liverpool Lou]

2 hours ago, Brick Top said:

He could as my friend did sell the land to a newly formed Thai company and become the sole director and therefore be able to control that company. 

He then could also register any house on that land into his own name or another option get the Thai company to give him a 30 year lease on the land to further secure it.

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

[BenStark]

1 minute ago, Liverpool Lou said:

2 hours ago, Brick Top said:

He could as my friend did sell the land to a newly formed Thai company and become the sole director and therefore be able to control that company. 

He then could also register any house on that land into his own name or another option get the Thai company to give him a 30 year lease on the land to further secure it.

What your friend did is illegal.

No it is NOT.

 

Those who set up those constructions follow the law. They sell the land to a company with only Thai shareholders, and sell the shares to the foreigner afterwards.

 

They then lease the land to the foreigner, so at that point the company does legal business.

 

Good try, but no cigar Lou

[brianthainess]

As said a usurfruct is normally for life IMO, but her not having any relatives, is there no one at all?

[brianthainess]

And Dah dah! all knowing Lou is back yet again ready to attack

[Liverpool Lou]

14 minutes ago, BenStark said:

15 minutes ago, Liverpool Lou said:

Illegally.   Unless the company is legitimately trading.

OK mr Pedant, how many illegal companies are active that way for decades already?

No idea but that is irrelevant.  Even if there are millions it does not make it legal.  Not so long ago a long-standing company in Phuket(?) was raided for that very reason, it had been providing illegal company incorporations for years for no other reason than for foreigners to "own" land and the property on it.

[Liverpool Lou]

16 minutes ago, BenStark said:

How many you know that lost their property because it was deemed an illegal company?

I haven't researched how many but, again, that statistic is irrelevant:, foreigners buying land illegally in that manner risk losing it if the authorities choose to get involved.    You don't really think that foreigners who illegally purchased land would be allowed to keep it if push came to shove, do you?   Imagine the floodgates that would open.

[onthedarkside]

Two misquoted posts taken out of context reported, reply also removed

[MrJ2U]

On 7/7/2023 at 6:58 PM, blackshadow said:

why put such a question on here

YOU MUST go see a legal person.......and ask there

Nothing wrong with asking a question on the forum.

 

But also a good idea to seek professional advice. 

 

 

[Liverpool Lou]

9 minutes ago, brianthainess said:

And Dah dah! all knowing Lou is back yet again ready to attack

He's making accurate comments on illegally set up companies that "allow" foreigners to "own" land, he's not "attacking" anyone.   Funny how, once again, an opposing opinion stating facts is condemned as an "attack".

[MrJ2U]

7 hours ago, bradiston said:

The OP says she has NO relatives. Hence the problem.

In that case forget about building another house.   Just get a nice condo under your name, at least you'll have a roof over your head while litigating the other properties future. 

[ThaiLawOnline]

Mentioning that a usufruct between husband and wife can be cancelled tried to refer to clause 1469 of the CCCT. That’s old stuff I often see on forums but I believe it is completely wrong to say that. You do not understand the spirit of the law and how civil law works.

 

You do not understand what means « publicity » in civil law which has nothing to do with advertising. Publicity is the act of making it applicable to third parties. This is why you register a usufuct at the land department. It affects all parties, same as a marriage for example, which is an act registered. In some countries, you must announced a marriage.

 

I never seen ONE Usufruct cancelled by a court in a divorce. None. I saw tons of lease cancelled, for different reasons like the rent is not paid or whatever reason.
 

You are completely forgetting 1471 of the civil code which is public order. Public order It is the law about marital property. And what does it say? A gift is personal property. Read 1471 when you read 1469 and that’s another reason why you make a Usufruct for free between married couples, and you add a MOU between unmarried couples. The MOU clarifies other stuff that I prefer not show the land department.

 

Show me one case of usufruct given for free cancelled by. 1469 in court. I never seen one and I did 150 divorces in 15 years. Actually, death is one of the 3 ways to stop a marriage under Thai law. But death does not affect a registered Usufruct unless the parties decide otherwise in the contract.

 

Stating that a usufruct can be cancelled like that, without any cases to back it up from any court is non sense. 

[ThaiLawOnline]

35 minutes ago, Liverpool Lou said:

Yes, it has been tested, it is illegal if the company is set up solely for that purpose.   You could lose the property if it was deemed to have been illegally bought/owned by a foreigner.

Just like prostitution is illegal in Thailand. We know that nominees exist, we know that it is widely used. We also know that it is illegal but in reality, it is very rare that it is used in court. I have seen it used against Thaksin, for example. Political purposes. 

[BenStark]

33 minutes ago, ThaiLawOnline said:

You do not understand what means « publicity » in civil law which has nothing to do with advertising. Publicity is the act of making it applicable to third parties. This is why you register a usufuct at the land department. It affects all parties, same as a marriage for example, which is an act registered. In some countries, you must announced a marriage.

 

I never seen ONE Usufruct cancelled by a court in a divorce. None.

Maybe this is not you then, posting the complete opposite on their website ?

 

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

 

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.

[bradiston]

1 hour ago, ericthai said:

A Thai still needs to own 51% of the company....

 

I meant the part about under the watchful gaze of a court, a foreigner sets up a company full of Thai proxies.

[Liverpool Lou]

7 minutes ago, ThaiLawOnline said:

We also know that it is illegal but in reality, it is very rare that it is used in court.

You will also know that it is a possibility and that there was a large, long-established company in Phuket that was raided for that very reason, providing Russians, predominantly, with a route to "own" land.   All their clients who acquired land that way were being investigated.  What do you think the outcome will be, "Aww, you didn't know, the agency taking your fees didn't tell you?  Ok, no problem, we'll just allow you foreigners to keep the land that you cannot own"?

[bradiston]

47 minutes ago, Liverpool Lou said:

Yes, it has been tested, it is illegal if the company is set up solely for that purpose.   You could lose the property if it was deemed to have been illegally bought/owned by a foreigner.

That's what I was getting at. Add to that the fact that this would be done during probate and I can only see trouble. Using Thais as proxies has hit the headlines recently in the cases of numerous Chinese companies using just that method.

[MrJ2U]

43 minutes ago, brianthainess said:

As said a usurfruct is normally for life IMO, but her not having any relatives, is there no one at all?

They'll be plenty once she passes. 

[bradiston]

21 minutes ago, ThaiLawOnline said:

But death does not affect a registered Usufruct unless the parties decide otherwise in the contract.

How can an agreement between two parties be preserved with the death of one of the parties? Supposing the land was inherited by a third party. Are you suggesting it will be encumbered with a usufruct? I don't believe a usufruct is transferable. The new owner might agree to a new usufruct, but in any event, the old one will terminate. But, maybe I'm wrong.

[asean]

Everyone. The use of a Thai company is an offence under section 113 of the land code with a 2 year prison sentence. It’s an old law but they are now starting to enforce and prosecute starting down south. It is also illegal for a Thai to enter into a partnership with a foreigner in any matters of Thai land. 

[Hummin]

All above depending on the land title right? 

 

 

[scorecard]

10 hours ago, J Branche said:

As someone mentioned talk with a trusted lawyer.

My understanding is if the owner of the house or condo dies the Usufruct remains in effect till the expiration.  I read the post about trust but my understanding is trust are not recognized in Thailand.

 

Definitely see the value in hiring qualified lawyer to help and guide you through making sure

the correct, process, paperwork and procedure is followed to assist with achieving the desired result.

 

 

Good point, doing ti 'solo' could work however:

- In all counries there are some rules involved

- The rules e.g. re executors / beneficiaries are quite different / opposing country by country.

- 'Solo' writers should beware of writing sentences/paragraphs which can be interpreted diferently.

- 'Solo' writers should beware of saying something in one paragraph which clashes with what's in another paragraph. If this went to a court for granting of probate when the party died it would be thrown out. The judge would NOT guess what the writer wanted. 

- In Thailand many amphur offices offer help to write wills, an amphur officer sits with the will writer and 'guides' writing the will. I'm aware of an instance where this became a disaster: Young man (my Thai nephew) and his wife decide to use this service. they go to amphur office. Amphur officer says it's the law of Thailand that the young man must bequeat 100,000Baht to his mother in law, and more.

Young man doubts the MIL clause is a law, calls an old uni buddy who is now a lawyer. Lawyer checks, calls back and says 'no such law'. Lawyer goes with the young man & his wife to the amphur office for the next appointment; lawyer asks the amphur lady to show him this law in a gov't publication, she can't but insists it's the law. Lawyer tells her she should not be saying things like this if she can't prove there's a law. Amphur lady then says 'but I think it's a nice idea'!

Amphur senior officer comes into the discussion and asks what the problem is. Young man explains, snr. officer says 'but she's just trying to help you'.

 Lawyer tells snr officer & amphur lady they are breaking the law and he will report them to the Thailand law council and the interior ministry. 

 

Lawyer says 'please come to my office I will write wills for both parties (young man and his wife) for no charge.

 

Young man scoops up all that's already been written by the amphur lady, takes it home and destroys it.

 

A few days later lawyer has completed both wills. 

[scorecard]

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

 

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

Not always true. If the contract to build the house is in the name of the foreigner and signed by the foreigner than he/she owns the house and this can be recorded on the chanut.

[ThaiLawOnline]

Benstark:

 

No, it wasn’t me posting on ThaiLANDlawonline. That is a Dutch lawyer that I know very well.

We used to do stuff together but not anymore. Yes, confusing. ThaiLaw and ThailandLaw.
 

i am ThaiLawOnline and Canadian. The Dutch lawyer studied also civil law, like myself. We can both disagree, like lawyers can.
 

ThaiLawOnline was hacked last month and I am rebuilding it, with some artificial intelligence and new useful tool. It will be ready in a week or two. I need to update some texts, related to new rules, smart visas, Sap Ing Sith, 2 shareholders since February 2023, and new updates.

 

The debate about 1469 was the same on Thaivisa 15 years ago. I never seen ONE usufruct cancelled. The Dutch lawyer is abroad and does not work every day with Thai lawyers like I do. Once, I asked Thai lawyers so search, double search, we did not find any case. But I saw twice, people are to register « Kaifak » or « sale with right of redemption » over a usufruct registered. I am surprised that the land department allowed it but I understand. We do a contract with additional clauses than the land department to avoid that.

 

Thailandlawonline, Samuiforsale, and some other sites are all related to the Dutch lawyer.

Same as Siam-Legal has Thaiembassy.com

i was the founder of Isaan Lawyers and sold my shares to a British lawyer.

 

i was the first to describe usufruct (explain with details and examples) in Thailand in English in 2008. There was an English lawyer named William that talked about it before me on another forum. But without much details.
 

Lawyers study usufruct in Quebec, I knew what is was.Thai lawyers often do not know what it is when they finish their law degree. I know, I had to explain that to at least 10-20 Thai lawyers in my life. The do not learn about it but it is not used often here. But I thought it was good for foreigners as I knew the origin from Roman law.

 

Lawyers from UK, USA or Australia normally do not know usufruct. Many bad examples were mentioned on Thaivisa like that usufruct were historically created for mining or companies cutting trees…. Which is ridiculous and confuse usufruct with another type of lease that we call « emphythéotique ». Usufruct are mostly used in Last Wills in France and Quebec. Here, it must be registered to have an effect on third parties. Thai lawyers think that registration of a lease makes it a real right. I understand the concept of registration but for me, it is still a personal right and not a real right. For me, in pure civil law, a usufruct is stronger than a lease. In France, there are also tax benefits to give a usufruct.

 

i stopped posting on Thaivisa around 2008. I was attacked by anonymous people that later thought I was working for Siam-Legal. I was not. I actually did 3 months for them in 2007 and gladly left. Last time I did something big was contesting TM30 in 2019 and the same happened. Forum said I would never get 10,000 signatures, that it was useless to fight the Thai government but they did changed the law in 2020 and eased TM30.

 

I often think Thailand is lawless country and that is completely strange to work in the legal field here. Especially in Isaan.

 

 

 

[scorecard]

13 hours ago, J Branche said:

I am no expert but looked at if someone died without will and it would be dispursed to

the owners statutory heirs.

 

There is an order like children, parents, brothers/sisters.

 

I'm working on having us make wills that specifically detail what is to happen with the property.

My understanding is you have take the completed wills to the local amphur to record.  

The will should be made according to Thai law and standards.

"I'm working on having us make wills that specifically detail what is to happen with the property."

 

However it can only happen if it's within Thai law. 

The will cannot override the limits allowed by Thai law.

[scorecard]

7 hours ago, BenStark said:

OK mr Pedant, how many illegal companies are active that way for decades already?

Missing the point??