30 Year Land Lease W/ Spouse

[donx]

If married to a trusted Thai spouse and you have Thai children, I think the best protection against the in-laws would be to get a will to take posession of the land in the case of your spouse's untimely death. Then during the year in which you have to dispose of the property, put the land into your child/children's name(s).

Donx, if your intention is to put the land in your child's name should your wife proceed you in death, why not have the wife put the child as her direct beneficiary for the land in her will? This is what my attorney advised me to do. If you wish to put a lease or usufruct on the land, now is the time to do it.

Thank you for your wise advice.

[stateman]

It has nothing to do with FRUITS, apples and oranges...but FRUCTUS in latin meaning MONEY.

Sebastian H Brousseau, LLB, BSc,

Lawyer (Quebec, Canada).

For Isaan Lawyers.

i wonder where canadian lawyers are taught latin. perhaps in a protestant sunday school? and is their "opinion" that the latin word "pecunia" means potatoes?

ad perpetuam rei memoriam!

Naam's post piqued my curiosity. So I googled and found the following:

Latin fructus, "fruits"

http://www.answers.com/topic/french-republican-calendar

"Latin word fructus, meaning fruit."

http://www.businessballs.com/quizballs/qui...ons_answers.htm

[Naam]

It has nothing to do with FRUITS, apples and oranges...but FRUCTUS in latin meaning MONEY.

Sebastian H Brousseau, LLB, BSc,

Lawyer (Quebec, Canada).

For Isaan Lawyers.

i wonder where canadian lawyers are taught latin. perhaps in a protestant sunday school? and is their "opinion" that the latin word "pecunia" means potatoes?

ad perpetuam rei memoriam!

Naam's post piqued my curiosity. So I googled and found the following:

Latin fructus, "fruits"

obviously not when you are a québécois lawyer using québécois latin where "fructus" (singular) means "fruits" (plural) and is used for "money".

i'ts ridiculous (and quite an old story) how some lawyers try to keep on bullsh*tting even when clear evidence was submitted that they are wrong. but <deleted>!

Edited November 4, 2007 by Naam

[Doudou]

It has nothing to do with FRUITS, apples and oranges...but FRUCTUS in latin meaning MONEY.

Sebastian H Brousseau, LLB, BSc,

Lawyer (Quebec, Canada).

For Isaan Lawyers.

i wonder where canadian lawyers are taught latin. perhaps in a protestant sunday school? and is their "opinion" that the latin word "pecunia" means potatoes?

ad perpetuam rei memoriam!

Naam's post piqued my curiosity. So I googled and found the following:

Latin fructus, "fruits"

obviously not when you are a québécois lawyer using québécois latin where "fructus" (singular) means "fruits" (plural) and is used for "money".

i'ts ridiculous (and quite an old story) how some lawyers try to keep on bullsh*tting even when clear evidence was submitted that they are wrong. but <deleted>!

Using fruit to talk about money is a common expression in French as it is in English.  Words can have different meaning in different context.  So you are right that fructus is fruits, but, put in context you are wrong.  The verb 'fructifier' in French (same root as fructus) means to grow your capital, 'usufruit' from the latin 'usufruct' is used to mean the right of use of a property or to profit from it (rent or interest on capital).  There no need to be dismissive of others who are only trying to share their knowledge with the rest.

[mickba]

Using fruit to talk about money is a common expression in French as it is in English.  Words can have different meaning in different context.  So you are right that fructus is fruits, but, put in context you are wrong.  The verb 'fructifier' in French (same root as fructus) means to grow your capital, 'usufruit' from the latin 'usufruct' is used to mean the right of use of a property or to profit from it (rent or interest on capital).  There no need to be dismissive of others who are only trying to share their knowledge with the rest.

We're going round in circles here. You are just mixing up the literal meaning, colloquial use and interpretation (not that I can think of 'fruit' being used in the English language to mean 'money). My French dictionery says that 'fructifier' means 'to bear fruit, be productive', so, I suppose it could be used in the context of pregnancy or anything else you fancy conversationally.

However in Law words are usually used in their literal sense and used very carefully to avoid misinterpretation.

The points I would by now prefer to be discussing are :-

1. What exactly was/is the intended purpose of the USUFRUCT in Thailand (<deleted> the French). I believe it was to protect a farmer from having his land taken away after he has invested, cultivated, planted etc., but if someone has knowledge/experience of testing its use in another context please tell us about it; and

2. What is the view likely to be taken by a Thai Government or Court where it has been used for quite another purpose. As far as I know this can only be an opinion, but again, if you know different..........

Any chance of getting back to the topic?

[ThaiLawOnline]

Mickba,

Thanks for your answers. Yes, I might have been a little over sensitive. You cleared some points and that was constructive.

For fructus, when you understand the "spirit of the law", you understand that it means "profits" in all different ways, which are basically, money. (Subleasing, for example). It also means that you can keep the apples on your orchard when you have a usufruct agreement on the land..apples are fruits!

It also means for large companies cutting wood, for example, when they have an emphyteutic lease or usufruct agreement with a government (normally), they cut tree and keep the profit. But they have some other clauses to replant trees and manage the land for a long period of time, and normally for large amount of money. Mning companies do these contracts too. But not only them. Simple people do usufruct contract in property to give their house to their children and let their spouse live in the house for the rest of their life.

If usufruct were intended for farmers, leasehold too. That's reality. They are ways to "control" (not sure what word to use here) land without being the real owner. Our societies were based on agriculture. When people were not being able to buy land, the law created other ways, other contracts. Like loans, or mortgage to protect being repaid, there is also a "sale on right of redemption" in the Thai civil code that is often used to borrow money of a house by money lender (with HUGE INTEREST). Many options.

I would like to contribute more on this forum. Sunbelt helps a lot of people by posting nice messages on visa. I am also trying, when I have time, to help some people by giving them information. After, they are free to go wherever they want. I live in Isaan and our services are intented for people in Isaan. But I have less and less time to write about Thai law... A Thai lawyer speaking English should write a book about the basic of Thai law. That would sell a lot!

[cloudhopper]

(snip)

Bending that around to 'profits' doesn't work either - that's just your interpretation of a Usufruct.

I think I know what Thai law says about a Usufruct and I'm sure I know what its intended purpose was (no doubt all those displaced farmers in India would have liked one).

The crunch Q remains as to how a Thai Court will interpret it where this instrument has been used for the purpose of circumventing their laws on property ownership rather than its intended purpose. Up to them I think.

(snip)

Some have suggested that somehow attaching a mortgage to the land or house would provide an additional safeguard. I tend to agree but so far I can't work out how to do it. The bank won't accept the Chanote as security with a Lease registered on it (presumably the same would apply with a Usufruct?). I don't think they'll accept the house as security (registered freehold to Farang). The Thai lady therefore has no security to offer for a Mortgage in her name (proof of income also required) and Farang has the same problems I think. If anyone has experience of how this can be achieved (in these circumstances) then I'd be grateful for their advice.

I think Kuhn Jean's summary (above) sums it all up very well.

What about the foreign lease (or usufruct) holder also holding a mortgage on the land and house, instead of a bank? E.g. the foreign spouse "loans" the Thai spouse a sum (say 80% of the market value of their real estate with some convenient terms e.g. 5% annual interest with a lump sum repayment due in say 30 years or if the land title is transferred) and then takes back a note, registered with the land office, as security. Then if for some reason the land title winds up in unfriendly hands, the perps find themselves owing an unpayable debt (or allowing the note holder to recover)? Can a foreigner legally hold a note like this? Seems to me that if so it would do the job!

Lawyers?

[thaipete]

My land is owned by my ex not even wife, her honesty is unquestioned, I gave her 2,000,000 baht in cash once and it was paid straight into my account, I have known her 25 years, my worry was also and unexpected death.

I had her make a will allowing me to live the rest of my life on my/her property and reap the rewards of the rubber. Then registered it with the land department.

[cloudhopper]

You registered her WILL at the land office? dam_n, they'll register anything!

[rken]

Another avenue of approach I've heard of is to sell the land (and house if applicable) on a morgage contract to your wife. Her taking posession when its paid off. You can also add onto that a lease for say 30years which offsets the morgage. This type agreement seems like it would protect you.

[terrypig]

Hi I am being told that the law prohibits a thai wife (freeholder of land) granting a lease to her farang husband and similarly the same applies if they are a couple but not legally married. I suspect this is not correct, could you clarify please ?

Also we have a daughter aged two she is half thai half British and she has both a thai and UK passport. Her birth is also registered with the Uk Embassy here and she has a British birth certe. We bought some land (low value) presently in my thai partners name but we'd like to put it into our daughters name for her to have in the future. I believe by so doing the land cannot be sold til she is 21 yrs of age but could the land be mortgaged or transferred to anyone else (i.e is the land in any way unsafe by doing this ?).

Many thnaks for your comments on my questions.

A usufruct contract is often a better option than a lease for a couple farang-thai.

If Thai lawyers are laughing at it, it's because they really don't understand what it means and it's in their LAW.

It has nothing to do with FRUITS, apples and oranges...but FRUCTUS in latin meaning MONEY.

Property in civil law is divided in 3, usus, fructus and abusus.

For some people, a 30 year lease with an option to renew (no guarantee) is a better solution. Transmissible to heirs, etc.

We charge the same price for drafting a lease or a usufruct and register it. So, we don't really care what you chose but want to instruct our clients on all possibilities, options and consequences.

A Thai child can own land at any age. Trust don't exist in Thailand.

People are forgetting superficies, and other ways to protect your interest.

Consult a law firm with Thai lawyers, able to speak English if you want to understand. Compare prices and services. Try to find someone you trust.

Most law firm should give you advice free of charge. You can write to us and I will try to answer your question. We register leases and usufructs almost every week. You can also ask to draft the contract and register it by yourself to save money. Contracts should be bilingual if you want to understand...

I rarely answer on private message. Send me an email so I can confirm your identity. And if you call me, my number is on our website, it's even better. You save time and will get all information in less than 10 minutes.

Sebastian H Brousseau, LLB, BSc,

Lawyer (Quebec, Canada).

For Isaan Lawyers.

[InterestedObserver]

Hi I am being told that the law prohibits a thai wife (freeholder of land) granting a lease to her farang husband and similarly the same applies if they are a couple but not legally married. I suspect this is not correct, could you clarify please ?

Also we have a daughter aged two she is half thai half British and she has both a thai and UK passport. Her birth is also registered with the Uk Embassy here and she has a British birth certe. We bought some land (low value) presently in my thai partners name but we'd like to put it into our daughters name for her to have in the future. I believe by so doing the land cannot be sold til she is 21 yrs of age but could the land be mortgaged or transferred to anyone else (i.e is the land in any way unsafe by doing this ?).

Many thnaks for your comments on my questions.

1. Any agreement concluded between husband and wife can be voided, especially by a divorce court. See Thai Civil and Commercial Code, Section 1469. It has been reported that some Land Offices prohibit certain transactions based on this.

2. Land transferred to a minor child is under supervision of the Thai juvenile courts and cannot be sold, transferred, or encumbered without the courts permission.

[thaiwanderer]

I had always thought the Latin origins of the word related to 'use' and 'enjoyment' (terms also used in the usufruct segment of the CCC along with 'possession' and 'management') but in any case talk of those origins and inherent gaps in translation and meaning has little impact on the application of Thai law.

I don't see leases as inherently more or less secure than usufructs. There are positives and negatives for both which can never be properly assessed in a bubble separate from the circumstances and objectives of those involved.

I do however strongly disagree with the notion that a lease granted by a usufructuary will survive their death.

[Dag]

Ask the turkey farmer what he thinks of all this stuff...

[thaiwanderer]

Ask the turkey farmer what he thinks of all this stuff...

Nothing, probably. Doesn't he sign things he doesn't understand?

[simon43]

Actually, based on my knowledge of Classical Latin, I agree with Sebastian about the meaning of 'Usufruct'. It means a lot more than apples and pears - it is whatever 'gain' you make from the land, whether that be apples and pears or bricks and mortar.

The crunch Q remains as to how a Thai Court will interpret it where this instrument has been used for the purpose of circumventing their laws on property ownership rather than its intended purpose.

I do not think anyone is suggesting that a Usufruct is a means for a non-Thai to circumvent the land ownership laws. A Usufruct has nothing to do with ownership of the land - it is a 'right of use' of that land for a limited period, and a right to benefit from the 'fruits' that result from using that land. So nothing about ownership of the land at all.

Contrast that with using a Thai company and nominees to own the land, where that Thai company is controlled by a non-Thai (eg via preferential voting shares etc). In this example, we ARE talking about real land ownership. The Thai company legally owns the land, and control of that company by a non-Thai could indeed be seen as circumventing the land ownership laws.

Simon

PS - I am not a lawyer, have no legal training, and mostly spout rubbish - but believe the above to be a correct interpretation - at least until 6pm tonight...