Usufruct Issued At Amphur?

[skybluestu]

After reading many many posts on TV re getting a usufruct (สิทธิเก็บกิน), am I right in thinking they are actually issued at the local land office, not the Amphur? If so I will be going to the land office on Friday to try to arrange one. From what I have read so far I understand a lawyer is not required as it is actually quite a simple thing to do and need not be expensive either. But should I try to print off a Usufruct contract that someone has posted on TV previously or will the land office have a standard one they will print off for me? Anything else I should take with me?

Thanks in advance

Edited March 26, 2009 by skybluestu

[stgrhe]

After reading many many posts on TV re getting a usufruct (สิทธิเก็บกิน), am I right in thinking they are actually issued at the local land office, not the Amphur? If so I will be going to the land office on Friday to try to arrange one. From what I have read so far I understand a lawyer is not required as it is actually quite a simple thing to do and need not be expensive either. But should I try to print off a Usufruct contract that someone has posted on TV previously or will the land office have a standard one they will print off for me? Anything else I should take with me?

Thanks in advance

The first thing you have to decide is whether the usufruct should be for your lifetime or for thirty years. Then whether you, as the usufructuary, should be paying rent for your rights. The usufruct should also include if you would like to have transfer rights or not.

Your obligations as a usufructuary includes among others to pay the taxes and duties and to pay for interest debts. Further, you may like to note that if you are married to the land owner, she can at any time have to usufruct revoked.

[Guest Bellini]

The first thing you have to decide is whether the usufruct should be for your lifetime or for thirty years...

I thought the 30-year thing was a lease, not a usufruct. Of course, it is possible to specify a limited validity period in any usufruct.

...Further, you may like to note that if you are married to the land owner, she can at any time have to usufruct revoked...

Are your sure about that? this would be quite tough.

[Guest Bellini]

...But should I try to print off a Usufruct contract that someone has posted on TV previously or will the land office have a standard one they will print off for me? ...

I believe the land registration office has a standard form but it is basic. You would want to see an English translation of it before signing it.

In a customised usufruct you could, for example, include the right to assign the usufruct to another person, for example a child, and thus make it valid beyond your lifetime.

[kamalabob2]

In my opinion you really should consider having a native English speaking attorney advise you, then draw up a usufruct for your specific situation in Thai and English. You then pay a government minor fee to REGISTER this lifetime paper at the land office and no taxes are due, unlike a land lease. It can be less than 5000 baht for a qualified native English speaking attorney to meet with you and prepare your Usufruct. Check around with some of the lawyers recommended on this web site. To "unwind" a poorly worded or "incorrect" "standard" usufruct done in a language YOU do not READ, would be a hassle at best.

[stgrhe]

The first thing you have to decide is whether the usufruct should be for your lifetime or for thirty years...

I thought the 30-year thing was a lease, not a usufruct. Of course, it is possible to specify a limited validity period in any usufruct.

Yes, this is the wording of Section 1418 of the Civil & Commercial Code that is the law for usufruct:

Section 1418 – A usufruct may be created either for a period of time or for life of the usufructuary. If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary. If it is created for a period of time, the provisions of Section 1403 paragraph 3 *) shall apply mutatis mutandis. In any case the usufruct comes to an end on the death of the usufructuary.

*) Section 1403, paragraph 3: "If it is granted for a period of time, the period may not exceed thirty years; if a longer period is stipulated, it shall be reduced to thirty years. The grant may be renewed for a period not exceeding thirty years from the time of renewal."

...Further, you may like to note that if you are married to the land owner, she can at any time have to usufruct revoked...

Are your sure about that? this would be quite tough.

Yes, this is the wording of the famous section 1469 of the Civil & Commercial Law for properties owned by husband and wife:

Section 1469 – 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 are not affected thereby.

[stgrhe]

...But should I try to print off a Usufruct contract that someone has posted on TV previously or will the land office have a standard one they will print off for me? ...

I believe the land registration office has a standard form but it is basic. You would want to see an English translation of it before signing it.

In a customised usufruct you could, for example, include the right to assign the usufruct to another person, for example a child, and thus make it valid beyond your lifetime.

Not really, because any such assignment must be made while the usufructuary is still alive because it expires when he dies.

[stgrhe]

In my opinion you really should consider having a native English speaking attorney advise you, then draw up a usufruct for your specific situation in Thai and English. You then pay a government minor fee to REGISTER this lifetime paper at the land office and no taxes are due, unlike a land lease. It can be less than 5000 baht for a qualified native English speaking attorney to meet with you and prepare your Usufruct. Check around with some of the lawyers recommended on this web site. To "unwind" a poorly worded or "incorrect" "standard" usufruct done in a language YOU do not READ, would be a hassle at best.

Good advise! And remember the usufruct needs to be in Thai but can include an English translation.

[Davron]

Thailandlawonline will prepare a custom made usufruct presented in both Thai and English for the fee of 5800 baht.

for me it was an excellent affordable service.

[stgrhe]

Thailandlawonline will prepare a custom made usufruct presented in both Thai and English for the fee of 5800 baht.

for me it was an excellent affordable service.

Yes, they are good with affordable prices.

[ThaiLawOnline]

5,800 baht is quite cheap for a custom made agreement. We usually make it at 8,000 for the agreement only. Another sponsor here is a little higher, I believe. But that's competition. So, we will match their price. You will have to register it by yourself, with our instructions. Competition is healthy!

The problem is that you might NOT be able to register it easily. It depends where it is. It's easier in a place with a lot of foreigners. Also, if the usufructuary is married to the land owner, in these cases, it's easier.

Be careful on what you READ on internet:

- Like: You must choose between a lifetime and 30 years-old. That's wrong. It could be for life, for 2 years, for 10 years...whatever you- want.

-Like: Your usufruct should be paying a RENT. It's not a RENT ! It's a usufruct. You don't rent. And there are taxes if not done for free. In all cases, I would suggest to make it FOR FREE. Why? First, you avoid taxes. Second, its linked to the concept of Sin Suan Tua (personal property) and Sin Somros (Common property). If it's a gift, it will enter into PERSONAL PROPERTY. And in case of divorce, you keep PERSONAL PROPERTY. If you are not married, SAME. Some people tend to think that if you pay, you have more protection. In Civil Law, concepts like undue enrichement or breaking (voiding) an agreement could result in some restitution (money back). Reality is I haven't seen ONE usufruct cancelled. And if your contract is well written, a person won't be able to say: I didn't know what I was signing!

-Like: Does it have to be issued at the Amphur? WOW ! A usufruct is NOT issued. It's an agreement. It's concluded, it's signed, it's agreed. NOT ISSUED. It's not like a driving licence! The agreement is REGISTERED at the land department. And if you go at the Land department without signing another good contract on the side, there are many benefits that you won't have. Example: Who will retain the title deed? Don't think the land department has forms for that... No. So, it worths paying 5,800 or more to get a usufruct register and protect your rights. Good law firms will customize your agreement. Whoever you choose. And yes, you should "Shop" your law firm.

-Like: She can have it ANY TIME REVOKE. BUL#&SHIT. Send me some cases and examples because I haven't seen one so far. I'm not saying it's impossible. I'm saying I haven't seen one. People are talking like it's UNAVOIDABLE, dangerous, a sure thing. No way!

If your lawyer can't avoid the application of 1469... if he FULLY THINK IT APPLIES (which I don't...and I wrote previously lawyers disagree on that, I would say that you need more than a divorce to cancel that, other serious arguments), then, you should change law firm. How do you revoke a registered agreement? Maybe going to Court? How long does it take? Any ideas? Long....Are there ways while this is processed that you can MAYBE affect rights of third person so 1469 don't apply? Answer YES.

I give you another trick. Land belongs to X, a Thai person. You are married to Y, your Thai wife. And you are F, the foreigner.

Instead of buying for your wife and your wife grants you the usufruct... you do this.

X grants you the usufruct.... and X AFTER transfer the property to Y. You don't have any contract with Y. 1469 doesn't apply. 100% sure. But X has to agree.

That's why I don't write often on forums and don't like to comment on law. Each case is different. Probably someone will come and ask explanations, why do I say that, another one will try to find something wrong in what I wrote, blablabla. There are other aspects that are neglicted and nobody wrote about them. That's why you might need a specialist. Example, you can register a usufruct on Nor Sor Sam. But do you know you need to make an announcement of 1 month? On Nor Sor Sam Gor, you don't have to do it...

Isaan Lawyers is building a database in Law at Thailawonline. (not the same as previously mentionned, which is also a very good source. I know Robert from Thailandlawonline and he is a nice guy, and very good lawyer). Thailawonline is not a law firm providing agreements online. It's a legal database in English.

We hope to give accurate and good legal information there. It's still under construction, I do work on it 30 minutes per day.

It's a very long job to update as much information as we can, in all fields of Law.

Enjoy.

[skybluestu]

Thanks a lot for that very informative post, pretty much covered everything I wanted to know. But I'm pretty sure I can't go through with the usufruct agreement anyway because we have a home loan and the bank has the chanotes until it's paid off in 10yrs time and I've been told the bank won't release the chanotes for a usufruct to be agreed/applied to them and they wouldn't have lent the money in the first place if a chanote has a usufructuary already, they want the land they are lending against to be free & clear.

Although I'm not that bothered about the usufruct for now as we have a contract already that confirms we would sell the house if we were to divorce and what amount both of us would get and I'm happy with what has been agreed.

I know there are many people on TV.com who believe and enjoy saying you lose everything if you marry a Thai woman and then divorce and that if you buy a property here and put it in your wifes name you would never get that money back if you divorce but that's not the case and I know of many divorce cases where the court has awarded the farang husband the majority of funds from a house sale when it has been proved it was his money used to buy the house despite signing at the land department that it wasn't.

A recent case where I live is a good example; a guy 'bought' a house for around 10M baht and was registered in his wifes name but a few years later they got divorced and she wanted 5M from the sale of the house. He could prove that it was his money that was used for the purchase of the house and kept receipts for the appliances etc. The builder also confirmed in court that he knew it was the farang husbands money that was used for the purchase and the court awarded him 9.7M baht and the wife only 300k!

But perhaps the courts sometimes have a different view when they see a 60yr old guy who was married to a 20yr old girl which is why there are so many people on this site who have lost a lot of money when their 'marriage' has ended.

5,800 baht is quite cheap for a custom made agreement. We usually make it at 8,000 for the agreement only. Another sponsor here is a little higher, I believe. But that's competition. So, we will match their price. You will have to register it by yourself, with our instructions. Competition is healthy!

The problem is that you might NOT be able to register it easily. It depends where it is. It's easier in a place with a lot of foreigners. Also, if the usufructuary is married to the land owner, in these cases, it's easier.

Be careful on what you READ on internet:

- Like: You must choose between a lifetime and 30 years-old. That's wrong. It could be for life, for 2 years, for 10 years...whatever you- want.

-Like: Your usufruct should be paying a RENT. It's not a RENT ! It's a usufruct. You don't rent. And there are taxes if not done for free. In all cases, I would suggest to make it FOR FREE. Why? First, you avoid taxes. Second, its linked to the concept of Sin Suan Tua (personal property) and Sin Somros (Common property). If it's a gift, it will enter into PERSONAL PROPERTY. And in case of divorce, you keep PERSONAL PROPERTY. If you are not married, SAME. Some people tend to think that if you pay, you have more protection. In Civil Law, concepts like undue enrichement or breaking (voiding) an agreement could result in some restitution (money back). Reality is I haven't seen ONE usufruct cancelled. And if your contract is well written, a person won't be able to say: I didn't know what I was signing!

-Like: Does it have to be issued at the Amphur? WOW ! A usufruct is NOT issued. It's an agreement. It's concluded, it's signed, it's agreed. NOT ISSUED. It's not like a driving licence! The agreement is REGISTERED at the land department. And if you go at the Land department without signing another good contract on the side, there are many benefits that you won't have. Example: Who will retain the title deed? Don't think the land department has forms for that... No. So, it worths paying 5,800 or more to get a usufruct register and protect your rights. Good law firms will customize your agreement. Whoever you choose. And yes, you should "Shop" your law firm.

-Like: She can have it ANY TIME REVOKE. BUL#&SHIT. Send me some cases and examples because I haven't seen one so far. I'm not saying it's impossible. I'm saying I haven't seen one. People are talking like it's UNAVOIDABLE, dangerous, a sure thing. No way!

If your lawyer can't avoid the application of 1469... if he FULLY THINK IT APPLIES (which I don't...and I wrote previously lawyers disagree on that, I would say that you need more than a divorce to cancel that, other serious arguments), then, you should change law firm. How do you revoke a registered agreement? Maybe going to Court? How long does it take? Any ideas? Long....Are there ways while this is processed that you can MAYBE affect rights of third person so 1469 don't apply? Answer YES.

I give you another trick. Land belongs to X, a Thai person. You are married to Y, your Thai wife. And you are F, the foreigner.

Instead of buying for your wife and your wife grants you the usufruct... you do this.

X grants you the usufruct.... and X AFTER transfer the property to Y. You don't have any contract with Y. 1469 doesn't apply. 100% sure. But X has to agree.

That's why I don't write often on forums and don't like to comment on law. Each case is different. Probably someone will come and ask explanations, why do I say that, another one will try to find something wrong in what I wrote, blablabla. There are other aspects that are neglicted and nobody wrote about them. That's why you might need a specialist. Example, you can register a usufruct on Nor Sor Sam. But do you know you need to make an announcement of 1 month? On Nor Sor Sam Gor, you don't have to do it...

Isaan Lawyers is building a database in Law at Thailawonline. (not the same as previously mentionned, which is also a very good source. I know Robert from Thailandlawonline and he is a nice guy, and very good lawyer). Thailawonline is not a law firm providing agreements online. It's a legal database in English.

We hope to give accurate and good legal information there. It's still under construction, I do work on it 30 minutes per day.

It's a very long job to update as much information as we can, in all fields of Law.

Enjoy.