Extinguish Servitude (remove easement) from Chanode

[THtraveler]

Seeking insight/anecdotal information on how to remove a servitude/easement covenant from a chanode.

Also, appreciate any referrals of lawyers in BKK that could provide guidance/assistance on servitudes/easements.

TL;DR

My apologies in advance for the long description…

My wife (Thai citizen) inherited property about 20 years ago that is located in Bangkok. She is now trying to sell the property. However, the chanode contains a servitude (easement) covenant that interested buyers have requested be removed.

The chanode dates from the 1950s and contains an easement covenant that lists four properties granted an easement and refers to another document (easement document) for details on the easement. The easement document states that four neighboring properties are granted “about 4m” access (translation from Thai) along one side of her property to reach the main road.

In the 1970s, a public road with sidewalks was built on the side of the property that has the easement. About 2m of her property was used/taken to construct the public road and sidewalk. This public road is over 12m wide. The chanode was never updated to indicate that the road was constructed, nor was the size of her property reduced to reflect the property taken to build the road, nor was the easement covenant removed.

The property was resurveyed this year by the Land Department. When the property was resurveyed, my wife asked the Land Department to remove the easement covenant since the easement is no longer needed (nor has ever been used) because the public road provides access to the main road for the properties granted easement. The Land Department refused to remove the easement covenant and indicated that she must either: (1) get signatures from all the owners granted easement on a document indicating that they no long need the easement, or (2) get a court order to remove the easement.

Option (1) is not practical since three of the original properties were subdivided in the 1970s into 40+ properties each (total of 120+ properties). The Land Department indicated that the easement would also apply to the subdivided properties, hence many signatures would be required.

We would appreciate any insight/anecdotal information on how to remove an easement covenant/clause from a chanode. Are there any other options?

In addition, we would appreciate referral of lawyers that could provide guidance/assistance if we pursue option (2).

[KhonKaen Power]

Your situation is quite complex but not uncommon in Thailand, particularly in cases where public roads have replaced private easements. Based on your description, your wife's property still legally carries an easement covenant despite the presence of a public road that has made the easement unnecessary.

 

In Thailand, servitudes (easements) are typically governed by the Civil and Commercial Code (CCC) of Thailand, particularly Sections 1387–1401. According to Thai law, an easement may be extinguished under the following circumstances:

1. Mutual Agreement:

   • As per Section 1397 of the Civil and Commercial Code, an easement can be terminated by agreement between the owner of the dominant property (the property benefiting from the easement) and the servient property (your wife's land).
   • In your case, getting signatures from all 120+ subdivided property owners is highly impractical.

2. Abandonment or Non-Use:

   • Under Section 1398, an easement can be extinguished by non-use for more than ten years. You mentioned that the easement has never been used, which might be an argument for its removal.
   • However, proving non-use might be challenging, and the Land Department may still require a court ruling to confirm the extinguishment.

3. Legal Impossibility or Alternative Access (Judicial Termination):

   • Under Section 1399, an easement is extinguished when the dominant estate no longer has any use for it. Since the public road already provides sufficient access, the easement no longer serves its original purpose.
   • This is likely your strongest legal argument for court removal.

4. Government Expropriation (Takings by the State):

   • If part of your wife’s property was officially taken to construct the road, and the servitude area overlaps with the expropriated land, this might be a separate legal basis to remove the easement.

Since the Land Department has refused to remove the easement voluntarily, your options are:

1. Filing a Court Petition to Terminate the Servitude:

   • The best option is to file a lawsuit with the Civil Court to obtain a judgment confirming the extinguishment of the servitude.
   • The case would argue:
     • The public road now serves the same function.
     • The easement has not been used for decades (non-use).
     • The dominant estates no longer require it.
   • If successful, the court will issue an order directing the Land Department to remove the servitude from the chanote.

2. Alternative Approach – Administrative Appeal to the Land Department:

   • If a court case is too costly or lengthy, an administrative appeal can be filed with the Land Department requesting reconsideration, citing the legal impossibility of the easement.
   • This might require hiring a legal expert to draft a strong petition.

Given the complexity of your case, you should hire a lawyer specializing in property law and land disputes. Here are some steps to find a suitable lawyer:

1. Contact ThaiLawOnline:

   • ThaiLawOnline offers legal consultations at 1,000 baht for 30 minutes.
   • They have expertise in Thai land law and can provide a more tailored legal opinion.
   • Contact:
     • Website: www.thailawonline.com
     • Facebook: SebastienHBrousseau
     • YouTube: Thai Law Online

2. Other Bangkok Law Firms Specializing in Land & Property Law:

   • Siam Legal International (www.siam-legal.com)
   • Chaninat & Leeds (www.thailawforum.com)
   • Tilleke & Gibbins (www.tilleke.com)

 

 

[THtraveler]

Thank you for your detailed and comprehensive response! I really appreciate the time and effort that you put in to provide your response. It’s certainly more useful than any information that I have been able to find through on-line search…

Seems like we will need to pursue the court petition option. We will focus on the steps that you suggested.

Is there a typical timeframe/duration for a ruling on a court petition?

 

Thank you, once again, for sharing your knowledge and expertise with the community.