Company To Usufruct

[dsfbrit]

Well thanks for all the advice from forum members over the last 2 years. I have decided to shut down the company that owns the house and land. I will put the House in my name and the Land in a Usufruct in my wife's name.

Its a good time to do it now as the taxes are so low until March next year.

Now an 'odd' thought has crossed my mind. Should I use the same lawyers who set up the company?

I was planning to use Sunbelt - as they have impressed me over the last period and I felt they would do a professional job. The Sunbelt office that deals with this is in Bangkok, but the travelling from Pattaya would be no big deal.

Then I thought, what if the paperwork I have is not correct. Sure, I have the pre-signed letters from the other shareholders, but if there were to be a problem and I have used different lawyers, then there would be little 'goodwill' from the current lawyers - would there!!

The current lawyers are OK in my opinion, so perhaps, as they say in the UK 'Better The Devil You Know'. The trouble is I don't know if they have much expertise relating to Usufructs. If I ask them, I know they will say they DO!

Your thoughts would be appreciated, having decided to do this, I do not want to make any more mistakes relating to property purchase in LOS.

Edited August 4, 2008 by dsfbrit

[scotsman]

Hi disfbrit There is no need to go to bangkok Sunbelt has a office on 3rd road if you travel up from the tot telephone exchange its on the left hand side of the road not far from the fishing park. Sunbelt did a good job in setting up my usufruct .

regards

scotsman

[dsfbrit]

Hi Scotsman, How long ago was that?? Greg sent me this PM a couple of months ago when I started looking into this:

I don't actually mind the trip to Bangkok. I just want this done properly. Did they shut down your company as well??? Any hassles with any of it???

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FROM GREG SUNBELT:

Hi David,

Yes they lowered the rates to just .001 per cent on the transfer and .001 per cent on the SBC.

Our office in Pattaya now just deals with mergers and acquisitions. It was very hard to keep a good english speaking legal staff in Pattaya so we do it all from BKk now with are 72 legal staff in BKK and just drive down for the day to go to the Land Dept.

Are you ever in Bangkok? If not we can still do it by e-mail till the day we meet at the Land Office.

Just let me know.

Regards

Greg

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[scotsman]

Hi Dsfbrit

I did not have our house in a company name my Thai G/f at the time now wife had a mortgage with me being the lender. But it was about 3 years ago that we got married legally so we had to change that set up so I went for the Usufruct. Sunbelt had there offices in north pattaya across from palm garden hotel at that time but then moved to 3rd road. I did not know that they no longer do any property legal work from pattaya anymore but as you say bangkok is not that far. I do hope you get everything sorted out and as I said I did like the service I got from Sunbelt.

Regards

Scotsman

[dsfbrit]

Scotsman, you made a good decision. Nice and simple.

Its not so much the location of Sunbelt that concerns me. Its quite simply that if there is anything wrong with the current paperwork, then getting it sorted out could be messy.

Still I have until March next year, when the taxes revert to normal, to sort this out so I will spend a lot of time on this - I do not want to set up a Usufruct and then find there is some problem down the road - I came to Thailand to avoid major hassles in my old age

Thanks for the feedback

Edit, did you do the house in your name and land in G/f name?

Edited August 5, 2008 by dsfbrit

[dsfbrit]

This post was moved from another thread:-

Okay, still not there. If the land and house are set up in whatever names - company/wife/you and your usufruct - this can all be transferred over to any potential purchaser at the Land Office, no? ie If you have a usufruct in your name on the land, your wife being the titled owner to the land, would still be able to sign an agreement, with your agreement to disable/relinquish the usufruct, to transfer the land, surely? I wasn't aware that a usufruct was set in stone and the usufructee would be unable to relinquish such rights in his lifetime?

We are well off topic here... still briefly...

As soon as a farang gives up the company structure and includes his Thai wife for any reason in any other structure (30 year lease, Usufruct, 30+30 year lease (dodgy) ...etc...), then they relinquish full power.

That is just a fact of life - your Thai wife will need to and want to sign that piece of paper, be it at the land office or anywhere else.

So what if she does not want to sign - what could I do ???? - nothing.

She on the other hand could sell her lease (for example) and I could have a new landlord - this is all very messy.

We have discussed all this in previous posts over the last 2 years and I have had a lot of good advice from board members.

It leads me to believe that:

- the company route is still the most flexible, if slightly 'illegal'.

- the 30 year lease is fine if you want to live in the property for just 30 years

- the Usufruct is the best option if you dont want to risk being kicked out after 30 years

- the 30 + 30 year lease is not worth the paper it is printed on - its just a 30 year lease

In your post you said you had been thinking of putting the land in your wife's name with a usufruct giving you security, but that you would have the house in your own name, which you can do, I do. And so, it seems what is stopping you from doing that is the reason you set up the company in the first place, quite sensibly, is that you don't trust your wife.

But, if you had the house in your name, which would be worth more than the land aone surely?, then your wife must see the benefit of her agreeing to sell the house and of course the land on which it sits, and, in the unpleasant eventuality of your splitting up, splitting the proceeds. She would be better off financially. After all. After 30 years of you as a usufructee, she might very well be dead.

Edited August 6, 2008 by dsfbrit

[dsfbrit]

In your post you said you had been thinking of putting the land in your wife's name with a usufruct giving you security, but that you would have the house in your own name, which you can do, I do. And so, it seems what is stopping you from doing that is the reason you set up the company in the first place, quite sensibly, is that you don't trust your wife.

But, if you had the house in your name, which would be worth more than the land aone surely?, then your wife must see the benefit of her agreeing to sell the house and of course the land on which it sits, and, in the unpleasant eventuality of your splitting up, splitting the proceeds. She would be better off financially. After all. After 30 years of you as a usufructee, she might very well be dead.

I think you are right in what you say. As you can see from this thread I am heading towards the Usufruct, with the house in my name and the land in my wifes name.

Mainly I see this as the best of a bad bunch of options.

Do I trust my wife ??? Trust is like virginity - it can vanish overnight can't it.

I really don't know if its a trust issue. Its more that I am foreigner living in a foreign land and often feel like a salmon swimming upstream against the tide, when it comes to any legal issues in Thailand. So I decided to try to protect myself as much as I could in the event of problems later on. Its a bit like the fire insurance I have for the house - I don't expect a fire to burn the place down - but who knows!

People say that the company ownership is illegal, but if I do the Usufruct, I believe I will have to sign a piece of paper that says I did not pay for the land - hello - that is a lie as well!!!

One of the things that really put me off the Usufruct, was the thought in my head it was 'for life', felt like a straightjacket - however I have now decided to think of it more as a 'base camp' - so it feels a lot better! I may even get another place elsewhere to live in part of the year - if I have anough cash that is.

Any advice you could offer on the Usufruct woul be appreciated - especially any pitfalls

Edited August 6, 2008 by dsfbrit

[scotsman]

Scotsman, you made a good decision. Nice and simple.

Its not so much the location of Sunbelt that concerns me. Its quite simply that if there is anything wrong with the current paperwork, then getting it sorted out could be messy.

Still I have until March next year, when the taxes revert to normal, to sort this out so I will spend a lot of time on this - I do not want to set up a Usufruct and then find there is some problem down the road - I came to Thailand to avoid major hassles in my old age

Thanks for the feedback

Edit, did you do the house in your name and land in G/f name?

I did not see what use a yellow book with a building in my name would be as my wife would own the land. Its not a big house just a small 2 bedroom bungalow and we have been together for a longtime before we married. I only got the usufruct to protect me from my wife's family if anything happed to her. Its all down to trust in the end Thats why I did not buy a big expensive house just a small cheap one that I could walk away from in the future if I had to. I think I have got my moneys worth in saving rent all these years.

regards

Scotsman

[dsfbrit]

I only got the usufruct to protect me from my wife's family if anything happed to her. Its all down to trust in the end Thats why I did not buy a big expensive house just a small cheap one that I could walk away from in the future if I had to. I think I have got my moneys worth in saving rent all these years.

regards

Scotsman

This is my major issue as well - the family. They used to be forever phoning my wife asking for money. It was a great pressure on her.

They are fine at the moment (I give them a monthly 'pension') and may be in the future for all I know, but who needs the hassle. The only reason I am changing to a Usufruct now, is that I have decided that if we divorced or my wife dies and the problems were to become too much here - then I will let the family have the place and I will go elsewhere.

If we can come to a deal and sell it fine, otherwise like you I would consider it as rent free living for a number of years.

The scenario I wanted to avoid is the sort of long term battle you see between StopVt7 and the developers of VT7 in the Pattaya forum. Life is just too short.

Thanks again for the feedback.

Dave

Edited August 6, 2008 by dsfbrit

[RubbaJohnny]

What documentss are needed for a Usufruct please?

Does mywife do it all and just name me me as the user or beneficiary of this contract

I assume someone will want all the guff I give immigration,shoe size (sorry joking) but wouldn't surprise me.

[Khun Jean]

...

Any advice you could offer on the Usufruct woul be appreciated - especially any pitfalls

One pitfall would be if your wife gets fed up with you she just revokes you the usufruct.

[scotsman]

Post #21

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QUOTE (Khun Jean @ 2008-08-15 06:58:39) *

Most lawyers conveniently 'forget' to mention that a lease or usufruct with your spouse is worthless. The spouse can revoke that right.

reply from naam

incorrect information! the spouse canNOT revoke a right that is entered in the chanote.

Well I don't know if that is correct or not as I was not married at the time I got my usufruct drawn up. But I think that a wife can only revoke your usufruct in a divorce action that so far has not been tested in a Thai court. I would think that what naam said in reply to your post in the other tread may be true, that it can't be revoked from the Chanote.

Please correct me if I am wrong.

Regards

Scotsman

[Khun Jean]

Don't take my word for it but a laywers one.

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.

After that a lot of blah blah but the point is:

Upon a marriage all 'ties' have to be broken, and assets have to be split up. A usufruct will have te be broken up to do this.

Anyone want to try it with his live savings?

Edited August 15, 2008 by Khun Jean

[Naam]

Don't take my word for it but a laywers one.

Thailand is like any other country. there are lawyers and there are lawyers

[think_too_mut]

Don't take my word for it but a laywers one.

Thailand is like any other country. there are lawyers and there are lawyers

My friend, how about California that has 37 mil people and 130 thousand lawyers.

China has less than 100 thousand lawyers for the population of 1.3 bil people.

And the quality of the lawyers would be, IMO, uncomparable.

[ThaiLawOnline]

Khun Jean, you used a PART on MY QUOTE... But not ALL MY QUOTE!!!!!!

"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."

I still never seen a usufruct registered and broken by a Court, and anyway, this article would also apply to a lease.

Naam and think too mut are PERFECTLY right. Thousands of lawyers, quality is not the same, normal to disagree.

If you state something, you should be able to show your argumentation around it. My interpretation that 1469 doesn't apply is based on third parties and the rule of PUBLICITY in Civil Law. It's well known that registered contracts affect third parties. However, the other interpretation is based on the "spirit of the law", wanting to end the full relationship and links between spouses after a divorce. As I never seen this article applied, I can't comment on what a Court could decide. An Courts can make mistake too.

[Khun Jean]

Khun Jean, you used a PART on MY QUOTE... But not ALL MY QUOTE!!!!!!

"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."

I still never seen a usufruct registered and broken by a Court, and anyway, this article would also apply to a lease.

Naam and think too mut are PERFECTLY right. Thousands of lawyers, quality is not the same, normal to disagree.

If you state something, you should be able to show your argumentation around it. My interpretation that 1469 doesn't apply is based on third parties and the rule of PUBLICITY in Civil Law. It's well known that registered contracts affect third parties. However, the other interpretation is based on the "spirit of the law", wanting to end the full relationship and links between spouses after a divorce. As I never seen this article applied, I can't comment on what a Court could decide. An Courts can make mistake too.

I did quote the header and the rest i made a little bit shorter like:

After that a lot of blah blah but the point is:

Upon a marriage all 'ties' have to be broken, and assets have to be split up. A usufruct will have to be broken up to do this.

And where is the 'third party' when a wife gives a usufruct to her husband?!!!!!!!!!!

Again what you wrote is exactly what i am saying. A usufruct between man and wife is not strong enough. A third party is needed.