Four Pitfalls Of Long Term Land/property Leasing

[Alf Witt]

As long as lawyers in Thailand are not responsible (accountable) for their advice the risk is 100% for the client.

Is that a fact? Thai lawyers are not responsible for their advice? I'd be interested to know your basis for that statement.

[Khun Jean]

What i really don't understand is why people think it is a good deal.

As you calculated it is quite a large sum, even if you can stay for the whole year ('O'/'B' visas).

You can rent great houses for that, and leave anytime you want for even better places.

Many people escape their previously live to get some well earned freedom, and the first thing they think of is making roots again? Is it that strong a feeling? To forget about all things rational and go for the great unknown? And that with a large part of your live savings as i am sure it is for most.

Just an example:

You are 35 years old and lease some land for 30 years. You pay 5 million baht (small house/avarage location).

After 30 years you are 65! What is the change you want to live at the same spot for another 30 years? (You can think about your own past and on how many times you moved before.)

AND do you have the money 30 years later? In this example it is probably 15 million baht (means you have to save at least 15.00.000/30/12 = about 42000 baht a month!!!). Are you planning on getting 95? Is your health still good enough to stay in Thailand? Do you still like Thailand? So many uncertainties in your own live. PLUS the uncertainties of the live of the landowner. You really have to take care he doesn't get involved in an accident, or gets in a fight with his wife, or does some bad business, etc, etc.... (These last examples will make you lose the 30 year extension right). What if he gets an offer of 30 million baht? Do you think he will not do EVERYTHING imaginable to get that money and kick you of the land.

[Khun Jean]

As long as lawyers in Thailand are not responsible (accountable) for their advice the risk is 100% for the client.

Is that a fact? Thai lawyers are not responsible for their advice? I'd be interested to know your basis for that statement.

Lets see, who's names are on the contract?

There is your answer.

Wouldn't there be a few hundred or thousands of lawsuits for the advice given in the past. (Company formation to own land).

If it would work the same as in western countries there wouldn't be many law firms left.

Edited September 16, 2007 by Khun Jean

[Alf Witt]

As long as lawyers in Thailand are not responsible (accountable) for their advice the risk is 100% for the client.

Is that a fact? Thai lawyers are not responsible for their advice? I'd be interested to know your basis for that statement.

Lets see, who's names are on the contract?

There is your answer.

Wouldn't there be a few hundred or thousands of lawsuits for the advice given in the past. (Company formation to own land).

If it would work the same as in western countries there wouldn't be many law firms left.

Khun Jean,

I was dubious about your statement. Now I am doubly confused by your explanation. To what contract and names are you referring and what does that have to do with lawyers' liability for wrongful advice? Either they are liable in law or they are not. I would be very surprised if they were not liable but you have stated as a matter of fact that they are not. On what, please are you basing that statement or is it just a bar-stool opinion.

To answer your question about lawsuits. No there wouldn't be lawsuits because the ownership of land by a Thai company is legal and the farang shareholding issue, as far as I am aware, remains a grey area which has still not been clarified 100% and probably never will be.

[Khun Jean]

Easy.

There are two names on the contract that matter. The one who took the lease and the landowner.

After 30 years when the contract can't be renewed, who do you think will have the problem?

The lawyer for giving wrong advice 30 years ago?

If i had a lease with this 30+ construction adviced by a lawyer, i would stand in the front of his office tomorrow demanding a hefty compensation for his wrong advice. While it is still recent you might have a microscopic change you wil win. I'll bet it wil take a few years before a court decision is made.

Second. If you still think a company formed for the purpose of owning land is legal you have some reading up to do.

Here i am mean the large number of company formations that used nominies. Those are illegal and always were.

In Thailand the law is a law of its own kind. It is better to abide by it to stand a change. If you start bending it, good luck is what you need. Until recent people who did the company thing made a good profit. It worked because it had a quick turnover and it went unnoticed. Those people were the lucky ones. The ones who own it now with a company construction are not sleeping very well.

Bar stools are not comfortable so i never sit on them.

[Alf Witt]

Easy.

There are two names on the contract that matter. The one who took the lease and the landowner.

After 30 years when the contract can't be renewed, who do you think will have the problem?

The lawyer for giving wrong advice 30 years ago?

If i had a lease with this 30+ construction adviced by a lawyer, i would stand in the front of his office tomorrow demanding a hefty compensation for his wrong advice. While it is still recent you might have a microscopic change you wil win. I'll bet it wil take a few years before a court decision is made.

Second. If you still think a company formed for the purpose of owning land is legal you have some reading up to do.

Here i am mean the large number of company formations that used nominies. Those are illegal and always were.

In Thailand the law is a law of its own kind. It is better to abide by it to stand a change. If you start bending it, good luck is what you need. Until recent people who did the company thing made a good profit. It worked because it had a quick turnover and it went unnoticed. Those people were the lucky ones. The ones who own it now with a company construction are not sleeping very well.

Bar stools are not comfortable so I never sit on them.

Khun Jean,

You made a general statement about the liability of lawyers in Thailand for wrongful advice. I was prepared to learn something new but it turns out that it was your statement that was reckless as you now contradict it by saying you would pursue compensation. It looks like it is you who needs to do some reading up or rather, I suspect, change your reading material. Unfortunately TV is full of ill-informed opinion and that is at its worst when it is stated as fact. There is a vast difference between saying that any attempt to sue a Thai lawyer for negligence could be a tough task which, depending upon the circumstances may or may not be so (so that is a matter of opinion but not a well founded one) and stating as fact that they cannot be held responsible.

Your understanding of the company land ownership issue also seems somewhat "wooly" to me but you are forgiven for that because nobody seems to be quite sure and, if you have been following the news reports, you will know that the politicians have been unable to agree on how the law should be amended to make it more certain. This is the point I was making. It has been, and remains, a grey area. As a matter of prudence anyone entering the market now may be advised to avoid it, but that does not address the situation that many people have been in over the years and glib statements do not help.

I would be very interested in Rick Levinthal the OP's take on this as he is a licensed American attorney working as an advisor to Siam International Legal Group. I tried a long time ago to get a reasoned response from Sunbelt but met with silence (again perhaps a reflection that no-one knows for certain, not even the lawyers, otherwise they would be being sued which was the second point I made).

Here is my understanding of the legal reality aquired from some very substantial reading on the matter, where possible from primary source material:

a)There is absolutely no obstacle to a Thai company owning land in Thailand per se.

B)A Thai company cannot be owned more than 49% by foreigners.

c)Ergo there is no obstacle to a Thai company owned up to 49% by a farang owning land. (Now, before you jump on me I know that the Land Office has been instructed to enquire into the source of shareholding funds etc. and also report to BKK if a company aquiring land is owned more than 39% by foreigners) but that is administrative direction and whilst it affects the practicalities it does not change the existing law on which the validity of the corporate ownership issue must be judged (especially in the circumstances you envisaged in taking a neglignce action against a Thai lawyer).

d)The nominee shareholder issue relates to the Foreign Business Act which is only about what type of business can be "operated" (word straight from the Act) by farangs. One of the prohibited businesses is "dealing in land". So if you operate a business whose business activity is dealing in land the Act provides penaties for any Thai who fronts for a farang and could you fall foul of the "nominee shareholder" issue (although these words are never used in the Act).

e)The FBA clearly states that these provisions are "for the purposes of" the FBA and don't therefore apply outside that Act. Unless a farang is operating a business which deals in land and using Thais to disguise his ownership the FBA has no application to the ownership, per se, of land by a Thai company.

OK So far?

f)So we have a Thai company which owns land. There is a house on the land which is owned by a farang. The Thai company has leased the land to the farang on a renewable 30 year lease. Nothing wrong with that per se.

g)The company is owned 49% by a farang and is structured so that he has "control" of the company's decision making process as distinct from "ownership" of the remaining 51% of the shares. (The main objective in this is to ensure that the lease is renewed at the end of the 30 year period). (Yes I know that some politicians would like to change the law to include control but they have not, so far got their way and if you are thinking about suing a Thai lawyer its the existing law that matters not what it may be in the future.)

h)The concept of the holding company, per se, does not exist in Thailand, so the company has to trade. It employs a housekeeper, gardner etc. and provides these services. It makes a small profit and a small dividend is distributed to its shareholdes (both farang and Thai).

This has all been established on the advice of a Thai lawyer.

Please explain to me, Khun Jean, the basis of your demand for hefty compensation?

[Khun Jean]

Point 'D' i dont agree with.

Using nominies in any company is illegal. It escapes because enforcement is not 100%, more like 1%.

That leaves people who already own a company in 'relative' safety, until this enforcement is really done. You never know when it is your turn and that will not be a comfortable feeling. Owning land this way and selling it within a short timeframe lowers this risk a lot. That is why it has been done a lot of times. If you want to just own a house (+land) it is a different story. The area is also not 'grey', it is very black and white. Only the lack of enforcements gives it its grey appearance.

I am not 'fighting' against 'grey'. I am in the process of starting an offshore company, that has many shades of grey. But agin this is for business, and you have more freedom when doing that. Putting someones life saving for a trouble free 'retirement' is a whole different thing and needs guarantees.

Registering a house + land at this moment will give you a lot more trouble and the land office than before. It is the first step to not allow it anymore.

Because i don't agree with point 'd' the rest of the points are only valid when not using nominees and it is a real trading company.

But don't you feel this is already discussed a million times, and still this subjects comes back. It seems convincing eachother is impossible. And this topic is about long term leasing not owning freehold in any way.

For the compensation, i did say in my post you only have a microscopic chance. The rules are there only counting on those rules should be seen in a TIT way. Even a electrocuted child in a large mall gets you 30.000 baht compensation. I wouldn't bet on it.

Did you not read about a few penalties for breaking the law. Most of them are like 5 years in prison or/and 10.000 baht fine. I guess 10.000 baht was a lot of money when it was first written. It also means that if you have money you just pay the fine.

And after 30 years when your lease renewal is going wrong, no way you would be able to get compensation.

In my ongoing research about this subject (i also have to wish to own some property here for investment sake (childrens future)) i have read only one lawyer's website that i agree with and that is www.samuiforsale.com. So if you want to know the details why i am convinced of my 'truth' this website has all the details and in a better structured way than i ever could do.

In my case i am going the 'chinese' way. That means wait one generation to own property freehold. I am 43 and i am financially comfortable. Leaving something behind for children so they may have a better start is my only wish. I am happy enough to live in rental houses and if the feeling grows to own something here, i put it in my wifes name. And i really do understand that for a lot of people THAT seems very silly.

Edited September 17, 2007 by Khun Jean

[ThaiLawOnline]

1 – you draft the lease based on normal lease laws (1 renewal), or

2 – you hope to upgrade the lease to a Special Reciprocity Contract (2 renewals). Contrary to 'hire of property' this type of contract is not specified in the Civil and Commercial Code. This type of contract is created by the Supreme Court.

Option 2 is wishful thinking, but very important to have this knowledge if you draft a lease. As your are not able to defend yourself via the lawyers in your office by referring to such basic legal information I would not trust any lease drafted by your company.

There might be other options. BL4U, I'm not sure if you are a Thai lawyer or not. The way you talk, yes. For me, it's very difficult or impossible to read supreme Court judgments in Thailand and I rarely see non-lawyers referring to them! So, I have to consult and refer to Thai lawyers. But civil law wasn't invented in Thailand (neither where I come from) and there are different ways to automatically renew a contract.

For instance, there is a wonderful article by Didier Luelles, my ex-teacher, explaining 2 ways used in Quebec and also in France. I'm a native French speaker from Quebec (Canada).

I would love to translate it to you but It would be a little long.

I can't post links, but if you make a search on google with the words:

renouvellement bail civil didier

It will be the first article.

We can agree or not on law issues, but any serious lawyer in Thailand should give a warning to his clients on these issues.

It's always great to read some interesting stuff about Thai law.

[BL4u]

1 – you draft the lease based on normal lease laws (1 renewal), or

2 – you hope to upgrade the lease to a Special Reciprocity Contract (2 renewals). Contrary to 'hire of property' this type of contract is not specified in the Civil and Commercial Code. This type of contract is created by the Supreme Court.

Option 2 is wishful thinking, but very important to have this knowledge if you draft a lease. As your are not able to defend yourself via the lawyers in your office by referring to such basic legal information I would not trust any lease drafted by your company.

There might be other options. BL4U, I'm not sure if you are a Thai lawyer or not. The way you talk, yes. For me, it's very difficult or impossible to read supreme Court judgments in Thailand and I rarely see non-lawyers referring to them! So, I have to consult and refer to Thai lawyers. But civil law wasn't invented in Thailand (neither where I come from) and there are different ways to automatically renew a contract.

For instance, there is a wonderful article by Didier Luelles, my ex-teacher, explaining 2 ways used in Quebec and also in France. I'm a native French speaker from Quebec (Canada).

I would love to translate it to you but It would be a little long.

I can't post links, but if you make a search on google with the words:

renouvellement bail civil didier

It will be the first article.

We can agree or not on law issues, but any serious lawyer in Thailand should give a warning to his clients on these issues.

It's always great to read some interesting stuff about Thai law.

My post is not about automatic renewals. It is about the 2 renewal lease, which is creative thinking based on Supreme Court judgments and does not work.

A Special Reciprocity Contract is, say, an upgraded lease by the Supreme Court and is the origin behind the 2 renewals lease idea. I think 95% of the lawyers active in Thailand are not aware of this and are just copying from what others do and say and what sells (90 years). Like suggested by Siam Legal.

It is 30 years you can get, the lease renewals after that are not in any way guaranteed. To understand this you should again study the Supreme Court judgments explaining real lease rights and non-lease rights in the lease agreement and general Contract Law.

[Alf Witt]

Point 'D' i dont agree with.

Using nominies in any company is illegal. It escapes because enforcement is not 100%, more like 1%.

Khun Jean,

This is often said but never substantiated. Can you quote the law on this? I have researched every way I can find possible and cannot find where it says what you claim.

There is no reference to nominee shareholders anywhere in Thai law that I have been able to discover.

The FBA is about operating businesses. Not about company structures. There is a difference (perhaps too subtle for some) between a "business" and a "company". A company is a legal entity and a business is the activity conducted by it. A company registered in Thailand will always be a Thai legal entity (by virtue of its registration) whoever its shareholders are. If it operates a prohibited business and it is owned either transparently (if that is possible) or through "nominees" more than 49% by foreigners then the individuals are in breach of the existing FBA, but the wrongdoing is in the foreigners "operating the business" not in using nominees per se and not simply for owning the company.

If you can find something in Thai law that says different then I am willing to be persuaded.

I am not persuaded just because samuiforsale says so. Some of the material on their website is very useful but their interpretation is not exactly spot on.

The trouble with all of these sources (law firms included) is that they have vested interests in what they want you to believe.

Just keep asking them as I do to produce the legal references that they are relying upon.

If I had more time I would detail my view complete with legal references, because I am prepared to substantiate my understanding. I am more than willing to listen (and perhaps accept) a different viewpoint but not if it is not supported by legal references.

I think it is in the interest of many farangs to have as full and accurate an understanding of this as possible. The lawyers on the forum have been spectacularly reticent about providing this. Samuiforsale goes some way towards this but I am uncomfortable with their interpretation and it looks to me that they have a hidden agenda somewhere.

I notice that Siam Legal who started this thread have also not bitten the bullet to clarify exactly what the law is AT PRESENT.

[thaigene2]

1 – you draft the lease based on normal lease laws (1 renewal), or

2 – you hope to upgrade the lease to a Special Reciprocity Contract (2 renewals). Contrary to 'hire of property' this type of contract is not specified in the Civil and Commercial Code. This type of contract is created by the Supreme Court.

Option 2 is wishful thinking, but very important to have this knowledge if you draft a lease. As your are not able to defend yourself via the lawyers in your office by referring to such basic legal information I would not trust any lease drafted by your company.

There might be other options. BL4U, I'm not sure if you are a Thai lawyer or not. The way you talk, yes. For me, it's very difficult or impossible to read supreme Court judgments in Thailand and I rarely see non-lawyers referring to them! So, I have to consult and refer to Thai lawyers. But civil law wasn't invented in Thailand (neither where I come from) and there are different ways to automatically renew a contract.

For instance, there is a wonderful article by Didier Luelles, my ex-teacher, explaining 2 ways used in Quebec and also in France. I'm a native French speaker from Quebec (Canada).

I would love to translate it to you but It would be a little long.

I can't post links, but if you make a search on google with the words:

renouvellement bail civil didier

It will be the first article.

We can agree or not on law issues, but any serious lawyer in Thailand should give a warning to his clients on these issues.

It's always great to read some interesting stuff about Thai law.

Hi Isaanlawyers,

Not sure it's fair to say that civil law equates to 'napoleanic' code which I'm guessing you mean?

The other issue here is you have no way nor basis to know whether one Thai judgment will follow another - usually the way (right??) - in either napoleanic (French/Quebecois) law or English Common Law..

That's why various international Websites including some government (US State Dept and others) warn the justice can be bought in Thailand..

So as far as I can tell here in LOL it's 'plus ca change, plus ce la meme chose pour la riche monde' mon ami. Sorry for any mis-spellings..

TG2

[Khun Jean]

Nominees don't have to be mentioned in the law because its meaning and intent is clear.

Lets look it up in a dictionary.

nom·i·nee

1) One who has been nominated to an office or for a candidacy.

2) A person or organization in whose name a security is registered though true ownership is held by another party.

I suggest we skip the meaning number 1 and concentrate on number 2.

When you use nominees it is assumed the one who uses them is the real owner. So if you have 49% foreign and 51% Thai are nominees. Then actually for the law (who knows about the dictionary too) it is 100% foreign ownership. And that is not allowed.

If you want to circumvent that too, you would need to find Thais that have enough money to invest in the business too, or somehow make them earn money before by giving them a job or some other creative way to obscure the truth.

Now lets look up the word naive. (Not personaly to posters but for the many people who believes a lawyer.)

I think it is good to discuss these issues.

Edited September 17, 2007 by Khun Jean

[Moonfruit]

Just to go back to the OP's original post.

I have dealt with Siam Legal, or should i say that i tried to deal with them.

Their Bangkok office really leaves a lot to be desired. Inefficient doesn't cover it. Unprofessional covers it. I dealt with an american guy whose name i forget, Dennis, Derek or something along those lines. I did the usual thing when trolling for a decent lawyer. I asked a hundred questions, all of which were easily answered. In fact, i know the answer to 99% of them myself, but this chap had no clue. Every single answer (and i do mean EVERY) was met with a blank stare and an, "ill check on that."

OP says he works for the Chiang Mai office, so i cannot pass comment on him as an individual. Yes, i find his legal advice dubious to say the least, but im one of the sceptics anyway. That would be my first reaction anyway.

I also find the 'international' part of their name rather dubious. Is that Vegas telephone number one of the lawyers home addresses? Judging by the state of their BKK office, they certainly aren't an 'international' law firm.

Am i allowed to post flames like this?

[Moonfruit]

"Buying property such as condo or land in Thailand"

just cut and pasted form the Siam Legal website.

Since when were PR's allowed to own land here?

I've no problem being corrected, but it was my thought that only citizens can own land?

[Alf Witt]

Nominees don't have to be mentioned in the law because its meaning and intent is clear.

Lets look it up in a dictionary.

nom·i·nee

1) One who has been nominated to an office or for a candidacy.

2) A person or organization in whose name a security is registered though true ownership is held by another party.

I suggest we skip the meaning number 1 and concentrate on number 2.

When you use nominees it is assumed the one who uses them is the real owner. So if you have 49% foreign and 51% Thai are nominees. Then actually for the law (who knows about the dictionary too) it is 100% foreign ownership. And that is not allowed.

If you want to circumvent that too, you would need to find Thais that have enough money to invest in the business too, or somehow make them earn money before by giving them a job or some other creative way to obscure the truth.

Now lets look up the word naive. (Not personaly to posters but for the many people who believes a lawyer.)

I think it is good to discuss these issues.

Khun Jean,

I agree that it is naive to take the word of lawyers here on its face value which is why I am trying to gain an understanding of what the law actually is. That is easier said than done in Thailand. Most of the "nominee" issue that has come under scrutiny by the government has been in relation to the Foreign Business Act. I am quite convinced from studying that Act that it has no application to the ownership of land unless a farang is conducting a prohibited business of "trading in land". The Land Code defines trading in land as "the aquisition and disposal of land for commercial profit by sale exchange or conditional sale". In other words "operating a business".

For the ownership of land by a Thai company it is definitely wise not to have nominees involved, but given the historical situation persons in the position you described earlier need to have as detailed an understanding as possible as to how the law should be interpreted. If it ever came to farangs being directly targeted over the company land ownership issue then I would suggest that rather than try to sue your Thai lawyer you should be on the same side as him to put up a reasoned argument and fight that together.

The scenario I described earlier has Thai shareholders who are not nominees and as far as I can see that is perfectly legal. The problem may come if the Thai government define "alien" in terms of control of a business but this has not happened yet.

I know this thread is about lease and lease renewal but the logic of control of the company is to ensure future renewals of the lease granted by the company to the farang. As long as that can be achieved through the decision making power in relation to the company it matters very little who actually "owns" the company. Also the company does not die and as long as control is maintained it will not sell the freehold.

I'm certainly not advocating this for anyone getting into the market now but whether anyone with a company should rush into a change to leasehold is questionable. The land still has to be owned by someone and it is a judgment call whether to stick with the grey area company setup or put the ownership in the hands of an individual. What are you going to trust?

[Khun Jean]

I see you referring to this "Foreign Business Act" but i feel it is not relevant here.

I can see this only be a case when you are an American who can own under certain circumstances 100% of a company.

Then you are restricted because the company is seen as 'foreign'.

All others have to respect the 49/51 percentages. And all activities can be undertaking as long the majority of the shareholders is Thai. The company would be seen as a Thai company, hence the possibility to own land (and do business in all those for foreigners normally restricted).

Lets presume it would be possible to have 51% or more of the companies shares, it would be deemed 'foreign' and therefore can not own land.

I dont think one type of business gets more scrutiny then others normally. There were some excessive things happening for instance on Koh Samui that made the goverment scrutinize these types of companies more (or first?).

I am also doubting very strongly that this very lax enforcement can continue much longer. In the near future every company will be checked, only how near is that future? A lot depends on how much abuse with these constructions are undertaken, it will get in the news and something has to be done about it. Same as a last year. Nobody will know how far it will go, but foreigners using nominies are very easy to track, and we all know Thais like things easy.

I am convinced it is already illegal to register a company using nominees. So all that follows is illegal too.

It all boils down if it is a legitimate company that is a real business with real Thai shareholders. I see no problems in that scenario, and if you have control, the road to owning land is cleared.

But in practice it is unattainable for a person who just wants to own a house.

And i think that are most of us, and most of us are also the main target for developers and lawyers.

Did you notice that every website of every broker/developer still writes that it is easy to own land.

Just a few random samples with google:

Hua Hin property centre

Land ownership laws

owning house and land in hua hin

Although technically you are able to own a house or structure in your own name, Thai law currently prohibits you from owning the land the building is erected on. There are ways in which you can structure the purchase so that you are the de-facto owner of the land however. The following ways can be used in order to fully comply with Thai law:

Limited Liability Company

This is the most popular route to getting your dream home.....

Nominee with Lease and Option to Buy

You can appoint a Thai national as a nominee. The nominee will purchase the land and then agree to lease the land to you over a maximum 30 year term. The lease can then be renewed a further two times, but again over a maximum period of 30 years per renewal. .......

They even not afraid to use the word nominee. Can my wife volunteer to be the nominee.

Kanchanaburi property

At this moment in time, foreigners can achieve property ownership in the following proven and effective ways under Thai law. You cannot own land 100% in your own name.

BUYING PROPERTY / LAND - THAI LIMITED COMPANY

The most popular structure of land purchase for foreign investors is through a Limited Liability Company. In Thailand, a Limited Company is considered a Thai Juristic Entity and can own land and property.

A foreign investor may hold 39% of the company shares at the time of the initial land transfer increasing to 49% when the company owns the land. The foreign investor may then elect to legally become the only director of the company, this ensures that any and all dealings of the company and its assets are within the foreign investors control.

BUYING PROPERTY / LAND - LEASEHOLD AGREEMENTS

Leasehold Agreements are another option for the foreign investor. Leases are usually for a period of 30 years with two further prepaid options for renewal giving a total of 90 years. Clauses allowing freehold ownership are written into the agreement thereby allowing a freehold ownership should Thai law alter to allow foreign ownership of property.

Also included in the agreement are clauses covering the right to sell, sublet or transfer the lease agreement making a leasehold purchase a viable option.

It is wrong, wrong, wrong. But that is what buyers see and take for a fact. And when they contact a lawyer that tells them exactly the same, sure it must be right.

It is all a big hoax.

I am just doing my part to bring some balance. I even wrote to a few sites that they were publishing wrong information. No reactions of course as expected.

Edited September 17, 2007 by Khun Jean

[Gary A]

I'm not a lawyer and I can't read Thai. I can't quote chapter and verse exactly what the Thai law says. I can, however read and I have read often enough that a company set up with nominees for the purpose of a farang to own or control property is definitely against the intent, if not actually against the law. If the shoe ever drops and I WERE a lawyer who set up these bogus companies, I'd be running for cover. Many people would be homicidal BEFORE they became suicidal.

[ThaiLawOnline]

Thanks for your comments. Of course, you can't import everything from other civil law jurisdictions, but law should be based on rationality and this is where they all come together. Thanks for the French quote, quite funny. I would add that maybe Thai lawyers don't know what is a "emphyteusis lease" and its concrete application. These leases are normally limited to 99 or 100 years...

BTW, the term "special reciprocity contract" sounds unappropriate. Reciprocity is a part of all synallagmatic contracts, like a lease. And special...well, we all know how special we all are!

[ThaiLawOnline]

In most foreign countries, lawyers have mandatory insurance by Law. It is a protection for their clients. This is a complement to a criminal, civil or professional procedure against them. Most mistakes by lawyers won't apply to professional or criminal misconduct.

My understanding is that lawyers in Thailand don't have this obligation. (insurance). But they have their personal civil liability, or the company's liability AND a possibility of complaint to the Thai lawyer's council.

[quiksilva]

But do they owe their clients a 'duty of care' under Thai law?

[thaigene2]

But do they owe their clients a 'duty of care' under Thai law?

Or better still, do they owe a duty of care as a 'right-thinking' person? I always liked that one - "Right-Thinking"..

How would you ever define that one here?

[Alf Witt]

But do they owe their clients a 'duty of care' under Thai law?

Section 420 of the Civil and Commercial Code states that "A person who wilfully or negligently, unlawfully injures the life, body, liberty, property or any right of another is liable to make compensation". This is probably as near as you will get in Thailand to a law of Tort.

If you acept that lawyers are inclded in the description "persons" then I guess this answers your question.

[ThaiLawOnline]

Anyone who doesn't have immunity could engage his civil liabity. Judges, for instance, have some strong immunities but it doesn't mean it's an absolute one. You will have to verify the constitution and decisions of each countries.

Are lawyers people? Funny! Not sure...

(Quod ad jus naturale attinet, omnes homines aequales sunt)

Members of professional associations are also liable in front of them.

On top of that, you add criminal liability.

If you hire a Thai lawyer who doesn't have an asset, and he makes a civil

fault, how can you get compensation if he doesn't have an insurance?

That's why it's mandatory in western countries.

=======================

Sebastian, Canadian lawyer and unfortunately a person.

[Alf Witt]

I once heard a very funny skit about confusion at immigration between the word Canadian and comedian. But I guess as a lawyer you have immunity from being a comedian.

(just joking)

[Alf Witt]

But do they owe their clients a 'duty of care' under Thai law?

Or better still, do they owe a duty of care as a 'right-thinking' person? I always liked that one - "Right-Thinking"..

How would you ever define that one here?

That has to be the easiest question of the week TG.

Thinking with the right side of the brain.

The side that doesn't employ logic.

[Maestro]

I have deleted some posts for being off-topic or discussions of moderation issues, and the replies to the deleted posts.

Please stay on topic. Regarding moderation issues, please observe the following simple rule from the forum rules:

5) Discussion of moderation issues, actions or moderation policies concerning individual cases are not allowed in the forums. Such comments should be directed to a moderator or administrator, and not discussed on the forum.

Thank you all.

--

Maestro