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Can A Usufruct Be Longer Than 30 Years?


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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

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Simon, I understood that it is possible to create both a leasehold interest and a usufruct on the same piece of land. I definately read that somewhere in one of the many threads here within the last 4 months. Maybe a search and thorough read of the posts could help. If this is the case your concern about payment is negated. I seem to remember a wealth of information on this topic from Isan Lawyers, a sponsor here I think. Anyway, best of luck.

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Yes you're correct. I've been rereading some of IssanLawyer's very useful threads on this subject. I will need to consult with a lawyer re this, but I'm just trying to get a layman's understanding at this stage so that I can suggest the best 'lease' method to the landowner (who are Thai + farang husband and happy to give me the right to build my little wooden house on this land and pay a monthly land rental until I die.... (Since the house itself will be of small value, the likelyhood of being the victim of a contract killing seems low...)

Simon

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Simon, I have a lifetime usufruct.

Strangely enough when I went to the land office in Pattaya to get it registered the officer told my wife I was "cheating" her (he was very anti-farang) and that he would only give me 30 years usufruct. Anyway, to cut a long story short, he was "persuaded" to change his mind over the weekend and I now have the documents registered on the title deeds and on the Chanod which cover me until I die.

I paid a fair bit of money to have it done - some was tax ,some was under table and I think there was other fees involved as well. Sorry, it was a while back and I can't remember the details. But no more money needs to be paid.

According to my then lawyer, I could lease the land and house out for 30 years at any time before my death, and even though I die, the lease contract is still valid until expiry. So in theory, if you reach a ripe old age, and don't expect to live much longer, you could lease it to a relaive, maybe a son or daughter, for 30 years.

One of my friends has been doing some business with Issan Lawyers, and he says they are exteremely good, professional, and not expensive. My own forum dealings with them have also impressed me. If I were you I would contact them to get everything clear, and maybe have them act for you.

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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

:o try this link www.isaanlawers.com

latest on usufructs

Good luck :D

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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

My Usufruct Agreement is for 'life' but the wife owns the land while I have lifetime use. I didn't pay 1% rental; in fact, the charge at the Bangkok Noi land office for the registration of the Usufruct/entry on the Chanote for our home in Bangkok was only around 100 (one hundred) Baht. The Usufruct agreement/contract was drawn up by SunBelt (that did cost us around 10,000 Baht...can't remember the exact amount as it was about a year ago), but we did not have SunBelt go to the land office with us when registering the Usufruct...we (the wife and I) did it on our own. Now, your "rented" land situation may change how and what fees may be applicable on a Usufruct

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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

My Usufruct Agreement is for 'life' but the wife owns the land while I have lifetime use. I didn't pay 1% rental; in fact, the charge at the Bangkok Noi land office for the registration of the Usufruct/entry on the Chanote for our home in Bangkok was only around 100 (one hundred) Baht. The Usufruct agreement/contract was drawn up by SunBelt (that did cost us around 10,000 Baht...can't remember the exact amount as it was about a year ago), but we did not have SunBelt go to the land office with us when registering the Usufruct...we (the wife and I) did it on our own. Now, your "rented" land situation may change how and what fees may be applicable on a Usufruct

I'm beginning to wonder if any of these things are worth a jot anyway!!

Maybe as a bluff value.

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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

:o try this link www.isaanlawers.com

latest on usufructs

Good luck :D

Your link wasn't correct; this is the proper one:

http://www.isaanlawyers.com/

LaoPo

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I'm beginning to wonder if any of these things are worth a jot anyway!!

Maybe as a bluff value.

I certainly wouldn't say that. The Usufruct is registered in the land title deeds at the land office and written and stamped on the back of the Chanod.

There is no way the owner of the land can sell the land without having the usufruct removed or revoked. This is normally only possible on the death of the usufruct holder.

There has been some discussion onwhether a divorced Thai women could go to court and have the usufruct revoked in the event of a divorce to a farang, if he was the usufruct holder, but to my knowledge this has never been tested, and in any event would probably be a long and costly process.

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Mobi, lucky for me that I have no intention of 'shacking' up with any Thai woman (or man!), cohabiting, married or whatever. I will be quite happy with some academic books, classical south-east Asian music playing in the background and an occasional 'take-out' for the night :o

Simon

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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

:o try this link www.isaanlawers.com

latest on usufructs

Good luck :D

Your link wasn't correct; this is the proper one:

http://www.isaanlawyers.com/

LaoPo

LaoPo :D Thanks for the correction, really must start wearing my dam_n glasses. :D

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Following on from my previous post about building a house for myself on 'rented' land:

I'm trying to understand the pros and cons of a 30 year land lease, or an usufruct for the land.

I've read about usufructs in several previous threads, but still am not clear as to whether or not this is the best solution in my situation.

If I 'rent' this land now on a 30 year lease, I will be 80 years old when the lease expires. I know that a lease renewal cannot be guaranteed, according to Thai law.

But I also read that an usufruct can be for the life of the 'usufructee'. Does that mean more than 30 years (if I happen to live to an age greater than 80 years old?). If so, that would seem to be a clear advantage to avoid being thrown off the land in my old age....

Also, am I correct in thinking that a usufruct does not require payment of the 1% rental tax at the land office?

Are there any disadvantages of an usufruct??

Thanks

Simon

My Usufruct Agreement is for 'life' but the wife owns the land while I have lifetime use. I didn't pay 1% rental; in fact, the charge at the Bangkok Noi land office for the registration of the Usufruct/entry on the Chanote for our home in Bangkok was only around 100 (one hundred) Baht. The Usufruct agreement/contract was drawn up by SunBelt (that did cost us around 10,000 Baht...can't remember the exact amount as it was about a year ago), but we did not have SunBelt go to the land office with us when registering the Usufruct...we (the wife and I) did it on our own. Now, your "rented" land situation may change how and what fees may be applicable on a Usufruct

I'm beginning to wonder if any of these things are worth a jot anyway!!

Maybe as a bluff value.

In the Thai court system and at the land office these things are worth a jot. Sure in some situations they might not be fool proof but few things really are 100% safe regardless of the country lived in.

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From Isaanlawyers document about usufructs. (They protected it so i have to type it, and yes i have checked if i can copy it.)

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.

Note the word 'believe'. It is the way out for a lawyer. Woosies....

But that also means that when you ARE married to the owner that it CAN be canceled.

(And quit easy too, especially if it is a female who you 'abuse', as it is 'witnessed' by many. A woman scorned....)

In the text that follows the quote it says how you can prevent that, that is the important part. BY INCLUDING A THIRD PARTY. Not via a lease but put that person on the usufruct (why do difficult) It can be your children(not with this spouse)/brother/sister/nephew/friend whoever as long as you completely trust them, and hopefully outlive you.

If that is not possible DON'T make a usufruct with your spouse. Transfer the land to your spouses mother/brother/whoever on the same day you make the usufruct with them.

You are paying for it, so you decide!

All the above is the same as for a lease.

To get back on topic. Yes it can be longer than 30 years. In this particular case it seems a usufruct is the best solution. No spouses involved, that makes it easier. Paying 'rent' however is not part of a usufruct, but it is nowhere stated a usufruct has to be free. Maybe a large amount that is payable every month. It would give the owner some recourse when you not pay anymore.

Edited by Khun Jean
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  • 4 weeks later...

I have a question about usufructs that I have yet to see answered. I am planning on buying a house, and when going into the local land office, they said that I could get a usufruct (sitthi kep kin), but they felt it would make more sense to draw up another type of contract, 'sitthi yu asai', or 'the right to reside'. It made sense from what they said, because what I really want is the right to live there, not to make use of the fruits/products on the property, although I'd like to eat a tamarind or lamyai from time to time. Do you know if I should have it drawn up for both, or is there something that I am missing? Thanks for any suggestions.

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  • 1 month later...
Simon, I have a lifetime usufruct.

Strangely enough when I went to the land office in Pattaya to get it registered the officer told my wife I was "cheating" her (he was very anti-farang) and that he would only give me 30 years usufruct. Anyway, to cut a long story short, he was "persuaded" to change his mind over the weekend and I now have the documents registered on the title deeds and on the Chanod which cover me until I die.

I paid a fair bit of money to have it done - some was tax ,some was under table and I think there was other fees involved as well. Sorry, it was a while back and I can't remember the details. But no more money needs to be paid.

According to my then lawyer, I could lease the land and house out for 30 years at any time before my death, and even though I die, the lease contract is still valid until expiry. So in theory, if you reach a ripe old age, and don't expect to live much longer, you could lease it to a relaive, maybe a son or daughter, for 30 years.

One of my friends has been doing some business with Issan Lawyers, and he says they are exteremely good, professional, and not expensive. My own forum dealings with them have also impressed me. If I were you I would contact them to get everything clear, and maybe have them act for you.

I'm sure it's worth having as some sort of protection but bear in mind this:

"Section 1469 of the Thailand Civil and Commercial Code: 'Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby'."

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I'm sure it's worth having as some sort of protection but bear in mind this:

"Section 1469 of the Thailand Civil and Commercial Code: 'Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby'."

Well, as it happens I have recently consulted with Isaan Lawyers on another matter and enquired about my usufruct. They assured me categorically that even if I were to divorce it would still hold good and be valid till the day I died.

Maybe usufructs are outside the remit of sect 1469. The guys from Korat have a lot of experience in this kind of matter and were quite positive; and remember, they weren't the ones who did the usufruct for me, so they had no vested interest.

But Who knows for sure? :o

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I'm sure it's worth having as some sort of protection but bear in mind this:

"Section 1469 of the Thailand Civil and Commercial Code: 'Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby'."

Well, as it happens I have recently consulted with Isaan Lawyers on another matter and enquired about my usufruct. They assured me categorically that even if I were to divorce it would still hold good and be valid till the day I died.

Maybe usufructs are outside the remit of sect 1469. The guys from Korat have a lot of experience in this kind of matter and were quite positive; and remember, they weren't the ones who did the usufruct for me, so they had no vested interest.

But Who knows for sure? :o

I have read somewhere of a court in Thailand having revoked a usufruct due to a dissolved marriage, unfortunately I cannot remember where, and since I am married to a Thai and in the process of buying a house, I have been recommended by one lawyer to first get the usufruct rights from the current owner of the land before the land is transferred to my wife's name. Another lawyer also suggests to combine the usufruct with a 'right to habitate'.

Someone earlier asked about whether a 'right to reside' is coherant with Thai laws and I have from two lawyers been told it is not, but a 'right to habitate' is.

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I have read somewhere of a court in Thailand having revoked a usufruct due to a dissolved marriage, unfortunately I cannot remember where, and since I am married to a Thai and in the process of buying a house, I have been recommended by one lawyer to first get the usufruct rights from the current owner of the land before the land is transferred to my wife's name. Another lawyer also suggests to combine the usufruct with a 'right to habitate'.

Someone earlier asked about whether a 'right to reside' is coherant with Thai laws and I have from two lawyers been told it is not, but a 'right to habitate' is.

I too heard about this, and mentioned it to my lawyer, but he advised that it has never happened. Maybe it's just an old wives' tale, or some farang with a fertile imagination trying to prove his point after studying his English version of Thai Law. :D

It certainly makes sense to have any usufruct rights revoked before buying a property, which tends to support the theory that it can't be revoked other than by the usufruct holder.

But as I said before - Who really knows? :o

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One can find more information about usufruct in Section VII of the Thai Civil & Commercial Act.

Section 1418 says that a usufruct can be registered for a limited time or for life of the usufructuary. But it also says that it comes to an end on the death of the usufructuary. Section 1420 says that when the usufruct comes to an end the property must be returned to the owner.

According to a supreme court ruling, reference 2297/1998, a usufructuary may lease the land to a third party. The same ruling states that in the event of the death of the usufructuary during the said lease period only the usufruct will be terminated but not the land lease.

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Here's the deal with "voiding" the usufruct after divorce. When you are married, you & your wife become one entity under the law. A person/entity cannot have a binding contract with him/herself/itself. ANY CONTRACT entered into between a husband & wife is voidable, at any time, even after divorce, because it DOES NOT MEET THE DEFINITIONS of a contract.

For a contract to be valid, it has to be between two parties and must have consideration. (Consideration can be money or love & affection.) If you want a non voidable contract/usufruct, enter into the contract before you are married. You and your future wife will be two separate entities under the law at the time the contract/usufruct was entered into/signed. The consideration can be 1 Bt or love & affection. THEN GET MARRIED.

The usufruct can be for ANY specified period of time OR the lifetime of the usufruct holder, but this MUST be addressed in the agreement. Our usufruct is registered in the land office & the usufruct is noted on the Chanote. My name appears directly under hers. It was entered into by two people that had no legal relationship at the time it was signed. IT IS NOT A VOIDABLE CONTRACT.

I can release the usufruct at any time by signing a release & filing it with the land office. Example: our home is for sale. When we enter into a contract to sell the land & house, there will be a specified sale price. An Addendum to the purchase & sale agreement will specify an amount that will flow to me as consideration to release the usufruct, and a specific amount will flow to her as proceeds of the sale.

Yes, Please call Issan Lawyers. They are farang & Thai lawyers working TOGETHER for the benefit of their clients. Our usufruct is written in English and Thai, paragraph for paragraph. Sebastian explained everything to me and his Thai partner explained & read everything (written in Thai) to her. She read the entire agreement & had 2 or 3 questions. These issues were discussed & explained to her in Thai by a Thai lawyer. She understood the entire agreement. There was no flim flam, no one was cheated & no one was taken advantage of.

Please note that "some" of the statements contained in the above posts are factually incorrect and "some" are spot on. Please consult a layer that is familiar with these agreements for accurate information. Remember that taking the advice on this forum as gospel truth can be like playing Russian Roulette.

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When I got my usufruct drawn up from Sunbelt I was in the process of getting married and they told me not to get married until after the Usufruct was drawn up. I was told that the contract would be more secure if we were not married, so may be its true. I could not get a Usufruct contract from the land office in Pattaya for Life they would not give me one I was told by sunbelt that they could go back and try again probably with more Tea money. I was not willing to fork out more money to get this done, so I excepted the 30 years as that would take me into my 80s if I live that long so it was not worth the extra cost.

Regards

Scotsman

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When I got my usufruct drawn up from Sunbelt I was in the process of getting married and they told me not to get married until after the Usufruct was drawn up. I was told that the contract would be more secure if we were not married, so may be its true. I could not get a Usufruct contract from the land office in Pattaya for Life they would not give me one I was told by sunbelt that they could go back and try again probably with more Tea money. I was not willing to fork out more money to get this done, so I excepted the 30 years as that would take me into my 80s if I live that long so it was not worth the extra cost.

Regards

Scotsman

That's exactly what happened to me (including using SB). The only difference is I paid the extra tea money and got the lifetime version. Isaan Lawyers are happy with it.

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Here's the deal with "voiding" the usufruct after divorce. When you are married, you & your wife become one entity under the law. A person/entity cannot have a binding contract with him/herself/itself. ANY CONTRACT entered into between a husband & wife is voidable, at any time, even after divorce, because it DOES NOT MEET THE DEFINITIONS of a contract.

For a contract to be valid, it has to be between two parties and must have consideration. (Consideration can be money or love & affection.) If you want a non voidable contract/usufruct, enter into the contract before you are married. You and your future wife will be two separate entities under the law at the time the contract/usufruct was entered into/signed. The consideration can be 1 Bt or love & affection. THEN GET MARRIED.

The usufruct can be for ANY specified period of time OR the lifetime of the usufruct holder, but this MUST be addressed in the agreement. Our usufruct is registered in the land office & the usufruct is noted on the Chanote. My name appears directly under hers. It was entered into by two people that had no legal relationship at the time it was signed. IT IS NOT A VOIDABLE CONTRACT.

I can release the usufruct at any time by signing a release & filing it with the land office. Example: our home is for sale. When we enter into a contract to sell the land & house, there will be a specified sale price. An Addendum to the purchase & sale agreement will specify an amount that will flow to me as consideration to release the usufruct, and a specific amount will flow to her as proceeds of the sale.

Yes, Please call Issan Lawyers. They are farang & Thai lawyers working TOGETHER for the benefit of their clients. Our usufruct is written in English and Thai, paragraph for paragraph. Sebastian explained everything to me and his Thai partner explained & read everything (written in Thai) to her. She read the entire agreement & had 2 or 3 questions. These issues were discussed & explained to her in Thai by a Thai lawyer. She understood the entire agreement. There was no flim flam, no one was cheated & no one was taken advantage of.

Please note that "some" of the statements contained in the above posts are factually incorrect and "some" are spot on. Please consult a layer that is familiar with these agreements for accurate information. Remember that taking the advice on this forum as gospel truth can be like playing Russian Roulette.

Tagaa, Thanks for interesting post (and for Scotsman's too). When your wife bought the land before you were legally married, did you both make the declaration at the Land Dept required when Thais with foreign spouses (either legally married or cohabiting) using the standard form? I am not trying to knock holes in your structure as it sounds quite good and nothing is perfect in this situation but just wonder about these two points:

1. If you didn't make the declaration, you could both be in violation of the Land Code.

2. If you did make the declaration, you have declared that you are married (the form doesn't ask whether you are legally married or just cohabiting). Could that be used to void the usufruct contract on the basis that you were common law spouses when it was drawn up? You could argue here that a marriage has to registered to be recognized under the Civil and Commercial Code (but not under the Land Code) but who knows what would happen in a Thai court?

Edited by Arkady
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Arkady

When My G/f & I Bought the house & Land we used a Thai solicitor to draw up a mortgage with me being the lender and my G/F being the borrower and it was registered on the title deeds at the land office this was over 6 years ago now, I don't think I signed any declaration at that time to my Knowledge. Then before we got married I did know I had to change the setup we had if we were getting married so I went for The Usufruct and the Mortgage had to be removed from the title deed's before we could register the usufruct. Now at no time did I sign any declaration form to my knowledge and sunbelt solicitors went ahead and got me the usufruct before We were legally Married. Now if it was a legal requirement for me to sign this declaration then I am sure that sunbelt would have got me to sign it but I have no paper work in my house with this Declaration. I don't understand why Sunbelt would tell me that my usufruct contract with my G/F is more secure and not to get married until it was done if the declaration that you have to sign will take away that securety.

Regards

Scotsman

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I don't understand why Sunbelt would tell me that my usufruct contract with my G/F is more secure and not to get married until it was done if the declaration that you have to sign will take away that securety.

Because if the usufruct was signed after the marriage was registered that Section 1469 of the Civil and Commercial Code would apply, which reads:

" Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby."

This means that is such a case your wife could at anytime during marriage, or within one year folloeing a divorce, have the usufruct revoked, but since it in your case was registered before marriage she can't.

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Yes I understand that part of the code but I was asking about the declaration and the Question that Arkady asked. If this declaration form could be used against the usufruct contract if you were not married when it was drawn up. I am sure that sunbelt would have known if this was possible, I am sure that the Thai court's could not revoke your usufruct contract at the time it was drawn up with your G/F or say that you were legally married at that time using the Declaration form when you were not married but as we all say here TIT.

Regards

Scotsman

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