USUFRUCT, tricks and traps?

[NoDisplayName]

We made two trips to the land office.  First time to get a usufruct on an adjoining piece of property wife already had the chanote to.  Second time for a usufruct on the main plot and house just purchased.  Both have the same wording.  Fee each time total of 75 baht; 55 baht for the usufruct, 20 baht for a witness. 

 

No lawyer involved.  The nice folks at the land office simply typed the standard information onto the back of the chanote, filling in names and date.  They took the Thai script for my name from my pink ID card.  If not in possession of one, you may need a certified, translated copy of your passport.

 

The chanote is in wife's name only.  Her will leaves the property to me.

 

Quote

- จดทะเบียน  วันที่ [date]
-ประเภทการจดทะเบียน  สิทธิเก็บกินไม่มีค่าตอบแทน (ตลอดชีวิตของผู้ทรงสิทธิ์)
-ผู้ให้สัญญา  
[property owner's name here]
-ผู้รับสัญญา  
[your name here]
งสิทธิเก็บกิน

 

- Registered Date [date]
-Registration Type  Usufruct without compensation (for the life of the rightholder)
-Contractors  
[property owner's name here]
-Contractor  
[your name here]
Usufruct

 

[NoDisplayName]

6 hours ago, steevjee said:

My name, 51

 

Unless you're buying a building only, in a private gated compound with the underlying land held by a Thai-owned association, you won't be getting a chanote in your name.

 

Your daughter will need to purchase the villa in her name, and have you listed as usufructee on the back of the chanote.

[ricklev]

On 3/9/2024 at 9:02 PM, Woof999 said:

 

It's a little bit more than that as in you have full entitlement to use the property and reap the reward. ie you could create a long term lease to a third party (not a transfer of the usufruct itself).

 

 

My understanding is that a usufruct has a fixed fee and no remuneration is needed between the person obtaining the usufruct and the chanote holder. I paid 75 baht last week for a 30 year usufruct on 14+ rai of land.

 

I don't think any land office is going to allow the holder of a usufruct to register a long term lease to a third party that extends beyond the death of the usufruct holder.  That is just some foreign lawyer's idea of what the rights of the usufruct holder include and, as far as I know, it has never happened.  However, I would be happy to be proven wrong. 

 

Foreign lawyers come up with these legal theories and parade them as fact.    

Edited March 12 by ricklev

[Mike Lister]

7 hours ago, steevjee said:

My name, 51

Unless you are Thai or the circumstances are unique, I doubt the first part....are you sure, and if so, why?

[MangoKorat]

2 hours ago, scorecard said:

My son added a usufruct showing:

•  I have the right to live in the house until I die. The usufruct obviously shows my full details, passport number etc. 
•  I must sign to approve my son or anybody selling the house and land.
•  I am the only person who can cancel the usufruct. Son cannot cancel it without my signature to cancel.

Family lawyer (in Chiang  Mai) took a document showing the 3 points just above (in Thai and in English) to the CM land title office, she spoke to the land office manager who agreed that a usufruct stating the above is totally level and agreed to create / process a usufruct as above.

Points one and three of your additions are contained within a normal Usufruct in any case.  Point two is against the normal and accepted wording of a Usufruct Agreement and could possibly render it void.  It is also not necessary as no matter who own the property after the Usufruct is registered, they must fully accept the rights granted by it.

 

Usufructs are not liked by some Thai lawmakers and judges and there is an agreed format as to the terms of a Usufruct and the rights it grants.  Thai lawyers acting for owners wanting rid of a Usufruct, scour the agreements looking for clauses that go against the accepted format.

 

Usufructs that have been found to have clauses outside the agreed format have been cancelled by the Thai courts.  It is far better not to 'rock the boat' by trying to add clauses - none of the clauses that you added were necessary or granted you additional rights.

Edited March 12 by MangoKorat

[MangoKorat]

5 minutes ago, ricklev said:

I don't think any land office is going to allow the holder of a usufruct to register a long term lease to a third party that extends beyond the death of the usufruct holder. 

I agree but even if it was allowed to be registered, it would probably be cancelled on the death of the Usufruct holder - just as the Usufruct is.

[MangoKorat]

11 hours ago, Mike Lister said:

Trust me, it can be voided, if your ex requests it.

I actually trust in Thai law and I trust my lawyer.  I detect a 'foreigner always loses' assertion in the above statement. If indeed it is possible for 'your ex to request it' - are you saying that a court will always act on that request?  Do you not think that they would consider the circumstances?

 

I've often heard people state that a foreigner will always lose in a Thai court - the same sort of attitude that claims we are always held responsible for car accidents etc. I have had occasion to litigate in Thailand twice; once against a major hospital group and once against my ex wife. I won both cases and believe me, the hospital brought in some 'big shot' lawyer from Bangkok.

 

As I said previously, your understanding of that rule is not the same as mine but whatever, I would expect a court to act in a proper manner and only find for the party that has right on their side.

 

I would add one caveat to all of that though - having seen what goes on in the Thai courts, I think a foreigner's chances of success very much depend on their choice of lawyer.  The courts seem to decide a case based only on what a lawyer puts before them, they don't seem to point out the law to a lawyer. If your lawyer doesn't fully understand the law concerned and believe it or not, many don't, you are at risk of losing because of your lawyer whether you are in the right or not. In one of my cases, it was clear that my lawyer understood the law better than the judges involved.

 

It is therefore vital that any Usufruct Agreement is written by a good Thai lawyer, using only the accepted clauses.  That way, it should stand if tested at court.

[Mike Lister]

2 minutes ago, MangoKorat said:

I actually trust in Thai law and I trust my lawyer.  I detect a 'foreigner always loses' assertion in the above statement. If indeed it is possible for 'your ex to request it' - are you saying that a court will always act on that request?  Do you not think that they would consider the circumstances?

 

I've often heard people state that a foreigner will always lose in a Thai court - the same sort of attitude that claims we are always held responsible for car accidents etc. I have had occasion to litigate in Thailand twice; once against a major hospital group and once against my ex wife. I won both cases and believe me, the hospital brought in some 'big shot' lawyer from Bangkok.

 

As I said previously, your understanding of that rule is not the same as mine but whatever, I would expect a court to act in a proper manner and only find for the party that has right on their side.

 

I would add one caveat to all of that though - having seen what goes on in the Thai courts, I think a foreigner's chances of success very much depend on their choice of lawyer.  The courts seem to decide a case based only on what a lawyer puts before them, they don't seem to point out the law to a lawyer. If your lawyer doesn't fully understand the law concerned and believe it or not, many don't, you are at risk of losing because of your lawyer whether you are in the right or not. In one of my cases, it was clear that my lawyer understood the law better than the judges involved.

 

It is therefore vital that any Usufruct Agreement is written by a good Thai lawyer, using only the accepted clauses.  That way, it should stand if tested at court.

 

You need to read what I wrote again.

 

I said it, "can" be voided, I did not say it "will" be voided.

 

No, you do not detect "a foreigner always loses assertion", in my statement, you have only imagined that.

 

No, I am not saying, "that a court will always act on that request", you imagined that also.  

 

Yes, I do, "think that they would consider the circumstances".

 

I responded to an earlier poster who said that the safest way to obtain an usufruct was in marriage. I disagreed with that statement, for the reason stated at the time, because "it can be voided upon divorce" whereas an usufruct obtained outside of marriage carries no such risk.

 

 

 

 

[crazykopite]

On 3/10/2024 at 12:24 PM, TroubleandGrumpy said:

Go see a lawyer - most of what I have just read is wrong or misleading - depending on your own situation.  Laws in Thailand are not one size fits all - get legal advice.

IMO the option of you and your daughter both buying the property jointly, and you holding a Usufruct to exclusive occupation could be achievable. 

Talk to a lawyer. DM for a name.

That’s if you can find an honest lawyer I’ve yet to come across one in 20 years of living here 

[ukrules]

On 3/9/2024 at 8:07 PM, theblether said:

if your wife dies and you lose the will to live in the remote village alone

 

Nobody mentioned a remote village

 

[john donson]

usufruct can be for life

 

and you can give a lease of 30 years, when you feel your end is near...

 

but, will the land department allow that...  corrupt as they are...

 

they refused a usufruct for a house that was planned to be in ex name ...

 

possible by law, but TIT... same as immigration where the person you see can f up your life...

[theblether]

9 hours ago, ukrules said:

 

Nobody mentioned a remote village

 

 

Nobody mentioned the location of the villa. 

[KhunLA]

6 hours ago, theblether said:

 

Nobody mentioned the location of the villa. 

Just a typical thread started by someone who hasn't a clue what they are talking about or asking, pops back in to answer 1 irrelevant question, while providing no info for anyone to give advice.

 

That advice ranging from useless, no experience of, hearsay to simple Thai bashing of all things.

 

Only useful answer, once info provided (age 51), and simple solution from the get go, just put in the daughter's name to begin with.  3 pages could have been answered in 2 posts.

[donx]

13 hours ago, KhunLA said:

Just a typical thread started by someone who hasn't a clue what they are talking about or asking, pops back in to answer 1 irrelevant question, while providing no info for anyone to give advice.

 

That advice ranging from useless, no experience of, hearsay to simple Thai bashing of all things.

 

Only useful answer, once info provided (age 51), and simple solution from the get go, just put in the daughter's name to begin with.  3 pages could have been answered in 2 posts.

So true. The OP hasn't provided enough information leaving other posters to speculate. Even his one follow-up response was a bit vague. I assume he means that his daughter is 51 years old. Additionally, we don't know if his daughter is a Thai citizen or not. Many have assumed that she is Thai, but my guess based upon his interest in having his daughter inherit the villa led me to assume she isn't Thai.

[steevjee]

On 3/13/2024 at 10:01 AM, KhunLA said:

Just a typical thread started by someone who hasn't a clue what they are talking about or asking, pops back in to answer 1 irrelevant question, while providing no info for anyone to give advice.

 

That advice ranging from useless, no experience of, hearsay to simple Thai bashing of all things.

 

Only useful answer, once info provided (age 51), and simple solution from the get go, just put in the daughter's name to begin with.  3 pages could have been answered in 2 posts.

OK, give me your phone number and I'll call you with my life story, better yet, your address and I'll pop over for a few hours

[KhunLA]

2 hours ago, steevjee said:

OK, give me your phone number and I'll call you with my life story, better yet, your address and I'll pop over for a few hours

Have  you read some of the excellent advice you've received, along with heads up, that your OP was entirely wrong.   You apparently didn't do any real research before posting.

 

You're welcome for the advice ... RENT, JIC you missed it.

[Mike Lister]

Seems like a very ungracious response from the OP, given all the sound advice he has been given, compared to the vagueness of the original post. I hope at least he now has his answer.