Everything You Wanted To Know About Usufruct Agreements In Thailand

[LoveDaBlues]

A friend of mine bought 160 Talang Wah of land. He is legally married to a Thai. At the Land Office they provided the form and gave him 30 years right of use, habitation, etc. It only cost 100 baht if I remember correctly. He is also listed as owner of the house. His wife of course is shown as owner of the land.

Simple.

[Khun Jean]

A friend of mine bought 160 Talang Wah of land. He is legally married to a Thai. At the Land Office they provided the form and gave him 30 years right of use, habitation, etc. It only cost 100 baht if I remember correctly. He is also listed as owner of the house. His wife of course is shown as owner of the land.

Simple.

For the same amount he could have got it for live, but maybe that is irrelevant because i don't know his age.

Yes simple, but still it will not protect your friend when things go wrong in the relationship. Read the thread again why.

50% owner of the house and that is it. Without cooperation that 50% can be very, even impossible to get.

A mortgage on the house can minimize that.

[LoveDaBlues]

A friend of mine bought 160 Talang Wah of land. He is legally married to a Thai. At the Land Office they provided the form and gave him 30 years right of use, habitation, etc. It only cost 100 baht if I remember correctly. He is also listed as owner of the house. His wife of course is shown as owner of the land.

Simple.

For the same amount he could have got it for live, but maybe that is irrelevant because i don't know his age.

Yes simple, but still it will not protect your friend when things go wrong in the relationship. Read the thread again why.

50% owner of the house and that is it. Without cooperation that 50% can be very, even impossible to get.

A mortgage on the house can minimize that.

He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land. He owns the house because he paid for it. His wife could sell the land but who would buy with him living there? I'm too lazy to go back through all these posts.

[Khun Jean]

He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts.

It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.

Edited February 28, 2008 by Khun Jean

[LoveDaBlues]

He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts.

It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.

A couple of questions; not trying to be difficult I'm just confused.

Okay let's assume she has a legal right to revoke the usufruct. How can she sell a house that she only owns half of?

Also, I'm confused on the mortgage issue mentioned in a prior post. Could you explain this in detail as I'm a little dim-witted at times.

BTW, I'm 51, married legally to a Thai, have a 3 month old girl, and planning to buy a piece of land in the near future and building a house on same. (I/we already have 5.5 rai but want to buy something closer in to town). Thanks for any help.

One more question.....can my child who was born in Thailand legally own land here?

[Khun Jean]

He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts.

It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.

A couple of questions; not trying to be difficult I'm just confused.

Okay let's assume she has a legal right to revoke the usufruct. How can she sell a house that she only owns half of?

When you divorce it will be part of the settlement. At that moment you hope for a good price. But a good price will only be possible when it is sold to a thai or a foreigner and she is willing to give a lease or usufruct.

Also, I'm confused on the mortgage issue mentioned in a prior post. Could you explain this in detail as I'm a little dim-witted at times.

Take a mortgage on the house on her name. Pay the house of little by little. The personal risk will be lower. By how much depends on how much mortgage you can get.

BTW, I'm 51, married legally to a Thai, have a 3 month old girl, and planning to buy a piece of land in the near future and building a house on same. (I/we already have 5.5 rai but want to buy something closer in to town). Thanks for any help.

You are in the same situation as me and i am hoping the solution Isaanlawyers thought of is solid. But for now, nothing is available that gives you a guarantee to be able to use or stay on land that is your wifes. If you get a usufruct of someone else than your wife it seems solid. As of my information now the only thing that stands in our way is being married to the person that owns the land.

One more question.....can my child who was born in Thailand legally own land here?

Yes, but then you have the problem of a legal guardian. Do a search on that, a large subject by itself.

[LoveDaBlues]

KJ, can the Thai wife force a divorce if I don't agree to one?

I'm trying to get a loan in the wife's name, not so easy as she has no credit. I could get one in my name for 9 years but I'd rather it be in her name for 30 years to lower the payments and if things go bad I'd just walk away.

Had I researched things better I probably would not have married. I don't mind being fair if we split up but to buy everything and then possibly losing it all doesn't seem fair to me at all!

[Khun Jean]

KJ, can the Thai wife force a divorce if I don't agree to one?

I'm trying to get a loan in the wife's name, not so easy as she has no credit. I could get one in my name for 9 years but I'd rather it be in her name for 30 years to lower the payments and if things go bad I'd just walk away.

Had I researched things better I probably would not have married. I don't mind being fair if we split up but to buy everything and then possibly losing it all doesn't seem fair to me at all!

She can always say you beat her up and that your forced her to do things (A used strategy in the western world by mean spirited Thai wifes). 'A woman scorned...'

Never divorced before So i don't know about 'forcing a divorce'. Anyone?

I rent at the moment, until one of these 'ownership routes' is sufficient for me. I already purchased some land as a gift to the wife (and children). But that i can walk away from. A larger upcoming investment is waiting until the best route is clear. And if it is not, then no investment. Like everybody i trust my wife and don't expect anything bad in the future. At the same time you would be crazy to invest hard earned money in something you have no control over when things are not going as expected.

[LoveDaBlues]

KJ, can the Thai wife force a divorce if I don't agree to one?

I'm trying to get a loan in the wife's name, not so easy as she has no credit. I could get one in my name for 9 years but I'd rather it be in her name for 30 years to lower the payments and if things go bad I'd just walk away.

Had I researched things better I probably would not have married. I don't mind being fair if we split up but to buy everything and then possibly losing it all doesn't seem fair to me at all!

She can always say you beat her up and that your forced her to do things (A used strategy in the western world by mean spirited Thai wifes). 'A woman scorned...'

Never divorced before So i don't know about 'forcing a divorce'. Anyone?

I rent at the moment, until one of these 'ownership routes' is sufficient for me. I already purchased some land as a gift to the wife (and children). But that i can walk away from. A larger upcoming investment is waiting until the best route is clear. And if it is not, then no investment. Like everybody i trust my wife and don't expect anything bad in the future. At the same time you would be crazy to invest hard earned money in something you have no control over when things are not going as expected.

Well I agree with everything you say and appreciate the advice.

Unless I can get a loan it looks like I'll keep renting. Asking the wife for a divorce so I can have better protection would not sit well.....she would think something else is up.

Have you checked the possiblilty of getting the wife to sign a document that keeps her from revoking the usufruct? I'm pretty sure this wouldn't hold up in court but at this point we're grasping at straws.

[WilliamJarvis]

Hi Seb; long-time, no speak.

I enjoyed reading your article. Can you clarify one point for me:

"Section 1423

The owner may object to any unlawful or unreasonable use of the property."

what constitutes, unreasonable? Would it be unreasonable for me to bring my new g/f or wife to the house? Is this subjective, objective, or court tested?

Edited February 29, 2008 by WilliamJarvis

[ThaiLawOnline]

Someone asked what will happen if his girlfriend or wife goes to our office? I won't go into details but Isaan Lawyers won't process a case involving a foreigner against another foreigner or a Thai person against a foreigner. I let you imagine why.

For the mortgage, if done between wife/husband while married, you must take into account what they call "sin somros" in Thailand or "common property" for the couple. In Thailand, everything you earn while being married is 50-50 between spouses. It's even more complicated if it involves pre-nuptial agreements.

For the right of habitation, it applies only for the house. A usufruct can be on the house AND land. And you also get the fruits... So, a usufruct covers more and is a better protection than a right of habitation (Si Tee Ar Sai).

I am surprised that people don't talk a lot about this right. Like superficies...

William: Nice to see you again. I will email you my answer.

UPDATE : For the first time this week, some land officers of a small city in Isaan asked us to wait one week between a transfer of property and the usufruct registration. They didn't want us to do it on the same day. We had never seen that before... and there is no legal basis for that. Welcome to Thailand!

[jazzbo]

... maybe those small town Isaan land office persons actually ARE 'competent' and have read the Thai Land Code:

Section 74 In recording rights and legal acts by the competent authority under Section 71 , the competent authority shall have the power to interrogate the parties and summon persons concerned to give oral testimony or send relevant written evidence as may be necessary and then proceed as may be appropriate under the circumstances.

If there is reason to believe the recording of such rights and legal acts is in evasion of the law or there is reason to believe the purchaser is purchasing on behalf of an alien, instructions shall be asked of the Minister whose word shall be final.

[Burgernev]

Excellent Information Sebastion, thanks.

6) It is possible to cancel or void a usufruct agreement

If you are NOT married to the owner granting you the usufruct, we believe it is not possible to cancel a usufruct and you are legally protected.

If you are legally married to the owner, Thai lawyers disagree on the application of article 1469 CCCT. This article mentions that all agreements made between spouses can be cancelled by the Court at the request of one party, unless agreements affect third parties. According to one interpretation, "publicity" or registration affect third parties and a usufruct can't be cancelled. According to the other interpretation, we have to search for the spirit of the law and it looks like Thai law wanted to end all relations between spouses in case of divorce, even usufruct agreements. A way to avoid the application of 1469 CCCT would be to have a second agreement (like a lease) affecting a third party before the Court could cancel your usufruct agreement.

A question regarding the above section of the initial post, is a thirty year 'lease' definately exempt from the above 'spirit of the law' statement which talks about an 'end to all relations between spouses in case of divorce' ? I realise cancellation of a 'lease' affects a 'third party', but that second interpretation does not refer to affecting third parties but mentions an end to 'all' relations.

Second question, IF a thirty year lease is not be terminated in the event of divorce, is the 'lessee' husband liable to pay the wife 50% of the house value that he owns in his name, if it was purchased after marriage and part of the marital assets ?

Also, at Hua Hin Land office, towards the end of last year they put a stop to registering leases from a legal Thai wife to a foreign husband (as far as all the cases we have been involved in, not sure if others have got them issued) and will only register Usufructs between spouses.

They actually promote the Usufruct route to spouses and even produce the contracts themselves (for a moderate fee.)

Thanks Burgernev

[ThaiLawOnline]

I am starting to believe that Jazzbo is working for another law firm and is just trying to scare people. Maybe he is making more money with leases...

But you are right: I've seen interviews but it's rare. Jazzbo forgets the basic of civil law: EVERY PERSON IS PRESUMED TO BE ACTING IN GOOD FAITH (Section 6). How many leases or usufructs registration have you done Jazzbo? You are saying that you are not a lawyer somewhere above and are citing legal opinions and sections of the land code!!!! Quite strange! Why are you always trying to find the problem when I never said everything is 100% safe and was quite objective in my text? After all, I was just saying that leases are NOT better than usufructs. I was explaining usufructs in a text, written quickly, and it looks like some people appreciated.

For legal reasons, I think usufructs are a stronger protection and I believe I made my point. That was all jazzbo. Now, you should stop it.

If someone thinks it's different in Isaan than Bangkok, Pattaya, Hua Hin or whatever, it's up to him/her.

Everyone is free to seek legal advice where they want and compare services, experience, prices, etc.

[BL4u]

I am starting to believe that Jazzbo is working for another law firm and is just trying to scare people. Maybe he is making more money with leases...

I don't think Jazbo works for a law firm because these people are never negative/ skeptical about anything. Give him an answer…

You think a usufruct is a stronger right because it is a real right. Right? The supreme court gave leases aspects of a real right, and in some situations a lease is better, in some I would even advice a company, and in some you could advice a usufruct.

It just depends on the circumstances.

I would never advice a foreigner, without asking them to sign a disclaimer, to buy property in a Thai gf name, with or without a lease or usufruct!! Not in Thailand, not in my home country. It always must go with a strong warning!

Edited March 2, 2008 by BL4u

[jazzbo]

I have as much right to cite the Land Code as you do the Civil Code even though, so far in this thread, you have not once cited the Land Code... in the Land Code the word 'evasion' is used frequently to describe back-to-back Land transactions between a Thai national and a foreigner.

...so why is it, given Section 6 of the Civil Code, you presume that I am not acting in good faith.

[ThaiLawOnline]

I always like your interventions BL4U. Seriously.

It is quite clear that a usufruct is stronger because you act as the owner... Remember that usufruct are not a creation of Thailand. It's pure civil law. Thailand has 12 sections in the Code about usufructs. We have 51 where I come from.

I was speaking with a Thai lawyer with a master degree, from BKK, last week. He never studied usufructs at school. Why? Because Thai people, I believe, rarely used these provisions. But it is the center of property law, and I believe it's very important to know them for a lawyer working in civil law. We called them "dismemberments of the right of ownership", with the "use", "servitude" and "emphyteusis" leases.

I don't want to compare Laws of different countries but it's important to know where it comes from and how parts of the law react together.

But you are right, all situations are different and in some cases a lease will be a better option. In others, something else. I agree with you BL4U.

PS: If you sign a disclaimer because a foreigner goes to you to buy property under the name of his girlfriend/wife, are you acting illegally by helping them knowing what they are doing? Buying under a Thai name? (You don't need to answer! )

[thaihome]

Section 96 Land Code; 'When it appears that any person (including a juristic person) has acquired land as the owner in place of an alien or juristic person under the provisions of Section 97 and 98, the Director-General shall have the authority to dispose of such land and the provisions of Section 94 shall apply mutatis mutandis'.

As the said in Watergate, FOLLOW THE MONEY. If the money comes from the foreigner to begin with, the then Thai national is by definition the nominee... I guess you will say that it IS her money. It was a gift.

But if, when my wife registered the property, I signed a document that said I have no interest in the property, then how could it be construed that she “acquired land as the owner in place of an alien”?

Seems to be that a usufruct is perfect for person that is not worried about losing the property due to divorce (if we were to divorce, I would just walk away anyway), but is worried about being able to live in it for the rest of his/her life if the spouse dies before them.

I don't need protection from my wife, I am not so sure about her family....

TH

[Burgernev]

I agree thaihome, and if anything you could say the 'foreigner' has acquired land for the 'Thai' person, and not the other way round.

If you look at the wording it talks about 'acquiring' land and being the 'owner' of the land, on behalf of a foreigner. The foreigner is not trying to acquire or own it the land, but just wants to use the land.

Maybe this is why there are no cases of a foreigner having their quarter or half Rai eing taken away under this code (at least that I have heard of).

In Hua Hin now, the land office is giving Usufructs without question, and many buyers are happier with them than 30 year leases.

Burgernev

[Maestro]

Isaanlawyers, when a condominium is owned by a Thai and the usufructuary is a foreigner, is it then counted as part of the foreigner quota, which is not allowed to exceed 49% of the building? I think it should not be counted as such but am not sure.

--

Maestro

[ThaiLawOnline]

Isaanlawyers, when a condominium is owned by a Thai and the usufructuary is a foreigner, is it then counted as part of the foreigner quota, which is not allowed to exceed 49% of the building? I think it should not be counted as such but am not sure.

--

Maestro

No.

This is why you can have a usufruct on land for a foreigners.

They are NOT the full owner according to civil law. The own the usufruct, a part of ownership, but not full ownership.

[WilliamJarvis]

Isaanlawyers, when a condominium is owned by a Thai and the usufructuary is a foreigner, is it then counted as part of the foreigner quota, which is not allowed to exceed 49% of the building? I think it should not be counted as such but am not sure.

--

Maestro

Don't know if it is still the case, but this was the exact structure used in a time-share project on one of Thailand's tourist resort islands. The person bought the property, gave a usfruct to the foreign management company, who then rented the rooms to the time-share occupier.

Edited March 4, 2008 by WilliamJarvis

[dee123]

.....The bit that bovvers me is the.... "unless the thai law changes" ....bit

[MrPaddy]

He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts.

It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.

Cna someone explain this statement... When she agrees and not revokes the usufruct or lease ??? Can this be done, can the land owner, issuer of the usutruct simply revoke it ????

[Khun Jean]

Only when you made the agreement while you are married to the 'other' person.

Other persons except your spouse can never revoke a usufruct or lease.

[ThaiLawOnline]

Only when you made the agreement while you are married to the 'other' person.

Other persons except your spouse can never revoke a usufruct or lease.

There is a way around --> Art. 1469 mentions IF IT DOES NOT AFFECT THIRD PARTIES...

Just add a third party to your usufruct if you worry about that.

There are several ways to do it, for example, your wife gives a usufruct to you AND your brother.

This article applies also to leases, loans, all contracts made between spouses.

I wouldn't worry about IF THE LAW DOESN'T CHANGE.

It's the same for everything but necessary to mention as people still believe in miracles... TIT.

The general plan of the Commercial and Civil Code was adopted in 1908. The conditions about immovables things in Thailand are from the Land Law of 1909 (completed in 1916). (For the land departments, survey, etc. Improvements had been continuous but the last texts adopted were about mortgage and preferential rights on immovables in 1917. As you can see, it's been more or less the same in the last 90 years for property or "Things" inside the Commercial and Civil Code of Thailand (CCCT).

(Sources from "the work of codification in Siam by Rene Guyon)

Limitation of ownership is NOT in the CCCT but in the Land Code.

[Khun Jean]

My way 'around' it is putting the land in the name of my wifes mother, then a usufruct to me and a will that she leaves the land to our children (currently 5 and 6 years old).

Still researching the details for that.

IsaanLawyers, can you add your comment if that is a good solution?

[MrPaddy]

So if not legally married, no problem then correct ?

[Khun Jean]

No problem using the land and living on it.

Selling though is not solved with a usufruct.

Your money will still be 'invested'. I would rather say 'locked' into the land and property.

With this in mind some will say it is still a (big) problem others don't.

[scotsman]

Am I correct in saying that if you get a usufruct Agreement before you are married to your girlfriend, then you get married after this Agreement is made then your wife can't revoke it? I would think that the usufruct contract was with your girlfriend in her name at that time not your wife"s name so she can't revoke it.