Issues For Nominees Buying Land For Foreign Owners

[ludosiam]

Thaiwanderer, as far as I know the nominee clause is stated in the foreign business act and is applicable to companies only and not individuals. Therefore I believe there is no legal basis that an authority can ask for prove of funding from an individual based on the FBA's nominee clause, no matter if married to a foreigner or not. If they would base this request on the fact that she's "mai farang" we're back to the previous ruling stating a "mia farang" cannot own land is unconstitutional. If this is unconstitutional so would probably be any different treatment based on who they're married to. Besides that there is a common sense that all earnings made after the marriage took place are commonly owned if there aren't any agreements stating otherwise (and don't have to be made public anyway). So if I for example am married to a Thai wife, have earned 2 million Baht, put them in a joint account and buy a house for 1 million then how could the land department rule that none of these earnings can be used to buy a house? The comment that they're going after "mia farang" owned houses came from a single person, not even a MP and has caused so many discussion and fear for quite a few, but was nothing more than an opinion by somebody not really in charge (my opinion)

[thaiwanderer]

Thaiwanderer, as far as I know the nominee clause is stated in the foreign business act and is applicable to companies only and not individuals. Therefore I believe there is no legal basis that an authority can ask for prove of funding from an individual based on the FBA's nominee clause, no matter if married to a foreigner or not. If they would base this request on the fact that she's "mai farang" we're back to the previous ruling stating a "mia farang" cannot own land is unconstitutional. If this is unconstitutional so would probably be any different treatment based on who they're married to. Besides that there is a common sense that all earnings made after the marriage took place are commonly owned if there aren't any agreements stating otherwise (and don't have to be made public anyway). So if I for example am married to a Thai wife, have earned 2 million Baht, put them in a joint account and buy a house for 1 million then how could the land department rule that none of these earnings can be used to buy a house? The comment that they're going after "mia farang" owned houses came from a single person, not even a MP and has caused so many discussion and fear for quite a few, but was nothing more than an opinion by somebody not really in charge (my opinion)

Firstly you are forgetting the number one rule above all else (constitution included)- that Thailand is for Thais (not for all Thais and even those with the power and interest to by accident or design affect anything you do may or may not realise the consequences of their decisions and actions but thats to do with 'logic').

Secondly invoking 'common sense' is a mistake tbh.

Beyond that FBA of course relates to corporate matters. With non-corporate mia farang and the like you should refer to the Land Code as to illegal ownership of land in place of an alien.

I am not disagreeing that its unconstitutional to debar a Thai lady from owning land. However regardless of that starting point if they are owning it in place of a farang the constitutional protection does not apply. Is it then unconstitutional to require evidence, declarations or whatever from a Thai woman (all or some however selected) to show that they are the genuine owner / buyer? I would say absolutely not (possible issues of over enthusiastic persecution aside for the moment).

The single offical's 'declarations' were wrong in law, but obviously scared a lot of people, including people who thought it was the safer option.

The land office can refuse to register any purchase and even if they err there is no liability for the negligent or deliberately incorrect or illegal actions of a government official.

If the majority of guys who buy land in their wives' names honestly feel they are gifting it to them and they have no moral or legal claim or beneficial ownership or practical control of the land I would have sympathy but I am afraid I doubt that is the case. I don't often hear of too many farangs who 'just want to give my wife some land' with no strings but maybe I'm too cynical.

[stgrhe]

I think the Thai authorities would be facing a catch 22 situation if they are trying to stop Thai women married to foreigners buying land in her own name whether it was her own money in the first place or not.

First, the law was amended in 1999 since is was regarded unconstitutional and thus Thai women married to foreigners regained their right to buy land and condominiums. Secondly, when a couple is married, this without preceding a pre-nuptial agreement that is, all money own by the married couple is jointly owned according to the Thai law. Therefore, any request of proof of where the money is coming from is totally irrelevant as it is common property.

I think the Thai authorities are trying to bite their own tail and cannot distinguish one (nominee companies) issue from another (husband and wife ownership).

[ludosiam]

Thaiwanderer made a view good points, if invoking the land code the authorities might have a basis to investigate who is the main beneficiary of the purchased property. But I believe it will be impossible to prove who "uses" the property more in case the intention was to create a space for a married couple to live in an environment the wanted to. Said affidavit should be enough to prove the funds to buy said property were in fact a gift (sorry, common sense applied here again, lol). As in many other cases the authorities might (rightfully) see a need for some restrictions but don't know how to make it work. See the visa issues coming up on a regular basis for example, they do know what they want but it seems they can't make it work, probably due to several laws or interest (groups) contradicting each other.

[thaiwanderer]

Assuming a coherent and well thought out policy (for the moment) one might think the proclamation allowed 'them' to do something without doing anything.

1. nationalistic political points scored - check

2. making some farangs do the work for them by worrying them into instead using other structures which cannot have the same constitutional arguments (paper Thai company etc.) - check

3. continuing the general shifting of goalposts to stop farangs ever feeling entirely settled and always leaving the door open to persecute them if necessary (though probably only ever continue with pin pricks rather than the big knife) - check

Of course as I have said maybe I am too cynical.

[quiksilva]

Thaiwanderer made a view good points, if invoking the land code the authorities might have a basis to investigate who is the main beneficiary of the purchased property.

If the foreign spouse signs the affidavit upon title transfer, I can not see how this would be an issue.

Using shell companies with say, the wife as the main partner to circumvent that process, empowers the Farang to exert greater control over the asset, and as such these structures could conceivably be grounds for further investigation. But only if they decide to investigate the marital real estate holdings of Thai / Farang couples.

Although with that being said I don't think this is as high on their agenda as investigating the holdings of foreign companies engaged in restricted business sectors.

[ludosiam]

You're right quicksilva, I too don't see where a legal problem does exist, this was a statement by a single person probably having some resentments against foreigners or is simply trying to gain the sympathy of a few. I doubt that any Thai government is interested in putting more restrictions on foreigners at the moment and consequently stopping foreign investment. But just as you do I agree there is a need to control foreign companies using nominees to gain control over vast amounts of land for commercial purposes where the profits will be lost for Thailand.

Edited September 17, 2009 by ludosiam

[RubbaJohnny]

Excellent post

May I add no Farang will ever take the land home so for Siam a win win they have the land and the cash

A usufruct is a good plan and a pre nuptial if you are previously wed with kids and maintenance

I see no mileage in making it cheaper easier

If we are lucky things will not tighten but regardles even if allowed to buy the whole country its not much use if immigration squeezes

While it wont be 15 days max a year for 800k tomorrow with a deposit in bank and one hand deposited at Swampy it can only get more expensive and with a currency more in tune with the Kwai /Yuan than the western depreciating currencies older retirees need worry more about inflation and health costs than Xenophobes and the vaudeville team now transferred to Chang Wattana.

Biggest worry is they don't grandfather and insist return to issuing country for visas,I don't think they 'll be so stupid to shoot themselves in the foot but a wave of Patriotism sis due and with recession unemployment anything is possible.

Who will want to fly aged 70+?

For many honest quiet retirees a rd to PR via marriage bank deposit or "voluntary work" would be the best IMHO

Edited September 17, 2009 by RubbaJohnny

[Alf Witt]

I know that this is Thailand and anything can happen but I think that the nominee situation is a hands-off for any Thai government for two reasons.

First it is not part of the land code. The relevant legal provision is contained in the Foreign Business Act which regulates the types of "business" in which a foreigner may engage in Thailand. If you read the FBA carefully you will see that the "nominee" provision (the word is not actually used) is for the purposes of that act an therefore does not extend beyond the FBA. This is normal in legal drafting to define the extent of any particular provision.

Secondly the word business is not synonymous with the word company. A company is a separate legal entity from its directors and shareholders. If the land is owned by a company it is owned by a company - end of story. If it is owned by a duly registered Thai company the ownership is legal and it is Thai ownership.

Any attempt to define it otherwise would cause huge problems for the concept of limited liability in Thailand and the country would then be out of step with commercial practice throughout the world.

The "nominee" pitfall is often quoted but as it stands it is probably unenforceable in relation to land ownership by a Thai company. Why else would so many Thai lawyers expose themselves to complicity in that by creating such structures.

[thaiwanderer]

I know that this is Thailand and anything can happen but I think that the nominee situation is a hands-off for any Thai government for two reasons.

First it is not part of the land code. The relevant legal provision is contained in the Foreign Business Act which regulates the types of "business" in which a foreigner may engage in Thailand. If you read the FBA carefully you will see that the "nominee" provision (the word is not actually used) is for the purposes of that act an therefore does not extend beyond the FBA. This is normal in legal drafting to define the extent of any particular provision.

Secondly the word business is not synonymous with the word company. A company is a separate legal entity from its directors and shareholders. If the land is owned by a company it is owned by a company - end of story. If it is owned by a duly registered Thai company the ownership is legal and it is Thai ownership.

Any attempt to define it otherwise would cause huge problems for the concept of limited liability in Thailand and the country would then be out of step with commercial practice throughout the world.

The "nominee" pitfall is often quoted but as it stands it is probably unenforceable in relation to land ownership by a Thai company. Why else would so many Thai lawyers expose themselves to complicity in that by creating such structures.

The land code prohibits holding land on behalf of an alien.

Non-trading sham companies with illegal purposes which breach the land code or other laws can nonetheless be be 'duly registered' and it would not be an unusual practice anywhere in the world to prohibit, investigate and proscute such practices.

Justification on the basis of 'Thai lawyers do it' is laughable to be honest.

[Arkady]

The article in today's (26 Oct 2009) paper - the other English paper that we are no longer permitted to quote directly - suggests that the Business Development Dept is about to get serious about investigating foreign controlled companies with nominee Thai shareholders that own land. The person quoted from that dept said they would looking at the sizes of plots and whether the land is used for business or residential purposes.

I imagine that any company with a foreign shareholder or director owning a plot in a newish residential development, especially in a resort area, would be an obvious place to start. Next off they could look at the filed accounts to see if the company appears to have any operations. Renting the property to a director doesn't count as operating income and would normally be classified as "other income" in the accounts, unless the company is clearly a property company. On the other hand, perhaps the emphasis will be on foreign developers, who are doubly evil as they are regarded as competing with Thai developers. In this case the errant companies are likely to have real operations and would be more difficult to spot from their financial statements. If they make money, then it will be also be more lucrative to go after them. Nevertheless, I would think that the low hanging fruit for the Business Development Dept, if it wants to get some easy busts to show it is doing something, would be the villas with infinity pools in Phuket and Samui, owned by foreigners who don't have Thai wives and blindly followed the self serving advice of the developers and their lawyers to set up Thai companies that have no operations and have their accounts qualified by the auditors every year (i.e. the auditors insert a disclaimer in Thai that they don't translate for their clients, saying they were unable to verify any of the information in the accounts because management refused to provide them with requested information and documents). I would think that any one owning clearly residential landed property through a shell company that has nominee Thai shareholders without any significant operations should accept the writing is on the wall and restructure as best they can, rather than risk being one of the first sacrificial lambs. Being successully prosecuted would almost certainly result ultimately in being deported and declared persona non grata in Thailand which would defeat the object of having the land in the first place.

Another element of today's article that was disquieting was a list of typical nominee structures cited the president of the Phuket Real Estate Association. At the top of this list was the case of foreigners married to Thais who allegedly use their Thai spouses as nominees to buy property and issue them with 30 year leases. The issue of the affidavit and its ramifications has already been discussed at length here and elsewhere in TV but the issue of long leases or usufructs in this respect perhaps needs to be considered further. I note that there was a comment in the Thai Research Institute's rather spurious sounding report about the foreigners getting 30 leases or even lifetime leases (i.e. usufructs) on agricultural land which they presumably gave their Thai wives money to purchase. This practice might perhaps be targetted in future ministerial regulations governing the Land Code and/or in the legislation that the Agricultural Ministry is supposed to be drafting to deal with the alleged land grab by foreign rice farmers whom Special Branch is having so much trouble in tracking down. I don't think it would be hard to introduce a ministerial regulation instructing Land Officers not to register long term leases or usufructs granted to foreigners by their Thai partners, unless the rental consideration is significant compared to the appraised value of the property (e.g. two thirds). This would mean that a significant amount of tax would have to be paid to register the lease or usufruct which could make the cost prohibitive. This could be presented as looking after the rights of the Thai spouses and preventing from being exploited or used as nominees by their wicked, land grabbing foreign spouses. Of course it would also deprive countless Thai women of the opportunity to be given money by their foreign husbands to buy land at all. Some foreigners would want the land so badly they would go ahead with a land transaction anyway without a lease or usufruct as protection. However, many more would feel apprehension at the prospect of getting kicked out of the property by their wives in the event of divorce or by her family, if she predeceased him, and would keep their money at home.

[Arkady]

Today the same unquotable newspaper quotes Patima Jeeraphaet from Colliers International also advising foreigners owning land or condos over the foreign ownership limit to restructure by finding real Thai investors. I would think the number of genuine Thai investors interested in investing in shell companies that own expat houses or condos is extremely limited, although there may be Thai buyers for 100% of the more desirable properties at fire sale prices, if owners are forced to dump them. Perhaps Thai buyers at fire sale prices will also have to be investigated to ensure they are not nominees. I wonder what kind of advice Mr Patima was giving to foreign buyers interested in projects Colliers was marketing to foreigners a few years ago.

Politics is such a mess that the Business Development Dept which already has a mandate to investigate these issues might press ahead without the government organizing some sort of way out in the form of an amnesty period and leases longer than 30 years. This kind of legislation takes some time and would be controversial and difficult for a government with a thin majority that is fighting for its survival and could collapse any day. It is hardly likely to be a pressing issue for a red shirt government either.

Edited October 27, 2009 by Arkady

[quiksilva]

Hi Arkady, glad you posted that here, the readers of TV need to be aware of the potential implications of these latest announcements, I would have posted sooner but have had my regional conference here over these last few days.

Lets make one thing very clear here before we go any further. The DSI and DBD made no mention whatsoever of Thai spouses. In fact quite the opposite they said the focus would be on companies.

Quite why that newspaper sought out the distorted views of Mr Thanan, I cant quite understand. I do get that he is the president of the Phuket Real Estate Association (aka PREC Phuket Real Estate Club) but please, seriously, dont read too much into his title....

According to him renting your wife's property makes her a "nominee" which, to put it lightly, is incorrect!

In fact many of the latest transfers have affidavits stating that the foreigner waives all rights to ownership of said property. Clearly this is an innocent practice. In this case no matter which way you slice it, no laws (including existing unenforced laws) have been broken.

If he seriously has any idea about holding structures, why no mention of usufructs? Or leases with successive expiries registered in advance? Both of which are legitimate, although successive expirations on pre registered leases is a grey area which is probably being exploited.

I suggest that if your wife owns a property, you can probably relax (but keep an eye on what what's happening (I am because that is what I have done), but if you do have a company set up with nominees (which I never advise clients or friends to do) it would be wise to start thinking about restructuring.

Edited October 28, 2009 by quiksilva

[Lazy Sod]

Hi Arkady, glad you posted that here, the readers of TV need to be aware of the potential implications of these latest announcements, I would have posted sooner but have had my regional conference here over these last few days.

Lets make one thing very clear here before we go any further. The DSI and DBD made no mention whatsoever of Thai spouses. In fact quite the opposite they said the focus would be on companies.

Quite why that newspaper sought out the distorted views of Mr Thanan, I cant quite understand. I do get that he is the president of the Phuket Real Estate Association (aka PREC Phuket Real Estate Club) but please, seriously, dont read too much into his title....

According to him renting your wife's property makes her a "nominee" which, to put it lightly, is incorrect!

In fact many of the latest transfers have affidavits stating that the foreigner waives all rights to ownership of said property. Clearly this is an innocent practice. In this case no matter which way you slice it, no laws (including existing unenforced laws) have been broken.

If he seriously has any idea about holding structures, why no mention of usufructs? Or leases with successive expiries registered in advance? Both of which are legitimate, although successive expirations on pre registered leases is a grey area which is probably being exploited.

I suggest that if your wife owns a property, you can probably relax (but keep an eye on what what's happening (I am because that is what I have done), but if you do have a company set up with nominees (which I never advise clients or friends to do) it would be wise to start thinking about restructuring.

Great post as ever, but I wonder what structure would be acceptable these days, obviously "real" Thai investors, but how many of us know Thais who would be willing to buy 51% of our companies. Currently my wife really owns 50+ percent of the company but it would be hard to show how she earned the money to do so. I'd restructure but I've no idea what to do if even our wives are defined as nominees.

[Lazy Sod]

And the largest most respected residential property developer in Thailand (Land & House) are still stating the following on their web site. Amazing Thailand!

http://www.lh.co.th/LHWeb/page/front_en/fo.../livinginth.jsp

How can foreigner purchase land and property in Thailand?

Following to Thai legal statements, only Thai person and Thai legal entity are allowed to own a freehold title of land. Therefore, foreigners are not able to have a freehold ownership of land in Thailand. However, there are two options for foreigners to purchase land in Thailand. First, foreigners are able to purchase properties with the name of Thais whom they trust. Every Thais who married to foreigners are legally still Thais and can own properties in Thailand with their names although their last names are changed. Second, this is usually recommended,foreigners can form a Thai registered company limited to own parcels of land and properties. There are many professional law offices in Thailand, which help foreigners meet their requirements easily with reasonable cost.(around 70,000 - 100,000 Baht per case)

[quiksilva]

Tsk tsk L&H really should know better!

Yes acceptable legal structures is a tricky one, as owning land goes against the spirit of the law. Thankfully they have killed the investigation into management controls in companies (I say thankfully not for real estate alone but for all businesses) so strictly speaking leaseholds, usufructs, and "real investors" who own majority shares is the only legitimate way to directly control land. Living in my wife's house does not equal control!

Perhaps this could be a business opportunity for legitimate Thai businesses who could offer to buy a portion of the shares in the company in return for a nominal rent.

The partner, a legitimate local firm, would not be acting as a nominee, and would allow the foreigner to hold on to his house, albeit at a price. Ghoulish perhaps and certainly not a one size fits all solution but some may be prepared to look into this...

(BTW not something that I am doing, just throwing it out there)

[thaiwanderer]

The partner, a legitimate local firm, would not be acting as a nominee, and would allow the foreigner to hold on to his house, albeit at a price. Ghoulish perhaps and certainly not a one size fits all solution but some may be prepared to look into this...

(BTW not something that I am doing, just throwing it out there)

'Proper' professional nominee individuals and companies (not lawyers staff or guy off street) have been used for many years?

Although there is little or no formal protection by way of shares they generally enjoy real protection as paying an influential individual / company for their service.

Of course usual no guarantees rules apply but on balance it probably offers more practical real protection than apprentice thai law advocates imaginings of a secure structure (all theory, ignoring reality).

[Arkady]

Post deleted due to error.

Edited October 29, 2009 by Arkady

[Arkady]

Post deleted due to error.

Edited October 29, 2009 by Arkady

[Arkady]

Hi Arkady, glad you posted that here, the readers of TV need to be aware of the potential implications of these latest announcements, I would have posted sooner but have had my regional conference here over these last few days.

Lets make one thing very clear here before we go any further. The DSI and DBD made no mention whatsoever of Thai spouses. In fact quite the opposite they said the focus would be on companies.

Quite why that newspaper sought out the distorted views of Mr Thanan, I cant quite understand. I do get that he is the president of the Phuket Real Estate Association (aka PREC Phuket Real Estate Club) but please, seriously, dont read too much into his title....

According to him renting your wife's property makes her a "nominee" which, to put it lightly, is incorrect!

In fact many of the latest transfers have affidavits stating that the foreigner waives all rights to ownership of said property. Clearly this is an innocent practice. In this case no matter which way you slice it, no laws (including existing unenforced laws) have been broken.

If he seriously has any idea about holding structures, why no mention of usufructs? Or leases with successive expiries registered in advance? Both of which are legitimate, although successive expirations on pre registered leases is a grey area which is probably being exploited.

I suggest that if your wife owns a property, you can probably relax (but keep an eye on what what's happening (I am because that is what I have done), but if you do have a company set up with nominees (which I never advise clients or friends to do) it would be wise to start thinking about restructuring.

I was formerly of the view that, if your Thai wife owned a majority of shares in the company, it would be hard to argue that she was a nominee, as it was a family business and she could have paid for her shares from the conjugal property. The way things have been moving and from the hardening of the language of official utterances, I now take the view that this position would be hard to defend, if the the company has no significant business and the property is very material relative to the total assets of the company. From the Land Dept ooint of view, it is too easy for foreigners to control companies and their assets, particularly as the Sarayud government's efforts to tighten up the FBA failed and they are likely to attempt to classify a family company without significant business owning a residential property as a nominee structure. From their point of view the Thai spouse owning the property supported by an affidavit is a much more secure version of Thai ownership. I don't think the Land Dept would want to pursure family companies as a priority, as they wouldn't want to go after the Thai spouses, but they would have to investigate any complaints. I also don't think they would prioritise preventing leases or usufructs to foreign spouses as foreigners have a clear right to enter into such contracts. They might, however, be pushed into doing something about these, if the Agriculture Ministry tries to crack down on them in the legislation it is working on re agricultural land. I would advise those holding land through family companies to sell the land to their Thai spouses and get a long lease or usufruct. Until March 2010 you benefit from the much lower transfer taxes and I doubt that any change to the leasing regulations would be retroactive, if it ever happens.

Edited October 29, 2009 by Arkady

[CHFarang]

had a 'head's up' from long term friend and orbortor official saying there're widespread plans afoot to seek out all foreigners' investment property here and 'remedy' anything looking slightly dodgy. between the lines from aforesaid, they want all foreign investment to cease immediately (in light of no outside investment here, they seem to think that foreigners have grabbed the lion's share of land - notwithstanding the fact the locals themselves have profited from the many sales in the past), quickly followed by an 'ousting' of any foreigners 'deemed' to have been in breach of any and all thai based property laws.

Living in Thailand since 5 years, working leagally, married, owning land and house (wife of course), i am trying again and again to find someone who reallly knows the facts on this matter. again in this posts, there are so many different explantations, disagreeing with each other... why is it so hard???? i have some good investment options on hand (land and development) and i certaintly trust my wife (as someone called it a "Genuine marriage") that i wouldn't want to get into any company ltd, but i still hesitate because of all these posts about land being taked away, etc... Is there a any "official" government department who can give proper advice on this matter?

[gregb]

Living in Thailand since 5 years, working leagally, married, owning land and house (wife of course), i am trying again and again to find someone who reallly knows the facts on this matter.

I don't think you are ever going to find someone who truly knows the facts. Even those officials who are interpreting the laws don't really know them. They all have their own political agendas.

What you do know for sure is this. The paper you sign at the land office when your Thai wife buys property is for the benefit of the land office, not for you. This is only so that they do not have to spend an inordinate amount of time verifying where the funds for the purchase came from. If you lie on that paper, i.e. you provide the funds for the property which your wife is purchasing, or you use communal assets, you are guilty of fraud. If that is what you decide to do, it isn't very smart, and you might get caught.

There are many ways around this problem. Perhaps the easiest is what was done prior to 1999. You give the money to your wife's parents. They purchase the property. You have no interest in it. Your wife then inherits it from them. This is a very clear, legally provable path that shows the assets used were entirely from your wife and not communal property. BTW, if you try to do some tricky legal procedure here to maintain some control of the property then you expose yourself to being caught in the nominee trap. The Thai law is designed to make sure you have no legal rights to the property. None. If you do anything to protect your interest in the property, then you are trying to evade the law and you run the risk of getting caught.

Another strategy , you can get your wife a job, wait a few years, have the wife qualify for a mortgage on the strength of her salary alone, and then pay off the mortgage. Technically, the loan becomes the source of the funds, and belongs entirely to your wife. BTW, the Government Housing Bank will not give a Thai person married to a foreigner a loan to purchase property (condos OK) for any reason reason, independent of the 1999 ruling. Their view is that the money used to repay the loan is communal property, and therefore is not in the spirit of keeping of guaranteeing the source of money used for the house comes strictly from the Thai partner. Private banks are not so picky about this issue, but it does seem to possibly open up a legal interpretation. This may not provide you all the protection you need.

I've also heard that if you gift the wife the funds for the house before you marry, then those can be used to justify purchase the house and not be subject to nominee status. Again though, don't try and play games here or the official might decide to make an example of you. You can not have any interest in the property.

If you follow the laws as written, they don't seem to be that ambiguous. But do be prepared for anything. If you want to own property, your wife needs to be able to show she was financially capable of purchasing the property without you or your communal funds earned during marriage. Do that and it would seem that you are safe. That is the actual intent of the law after all.

[thaihome]

..What you do know for sure is this. The paper you sign at the land office when your Thai wife buys property is for the benefit of the land office, not for you. This is only so that they do not have to spend an inordinate amount of time verifying where the funds for the purchase came from. If you lie on that paper, i.e. you provide the funds for the property which your wife is purchasing, or you use communal assets, you are guilty of fraud. If that is what you decide to do, it isn't very smart, and you might get caught.

..

Scaremongering

The paper only says it is her money, that is not a matrimonial asset, and you have no claim on it. If you have given it to her that is true and there is no fruad.

I suggest the poster does like thousands of married couples already have and go the property, sign the paper and live happily ever after.

Not once has a piece of property been taken away, in fact, what the land dept actually says is that if you haven't signed the paper (and people whose wives have not changed their names tend to not sign) then you have may have broken the law.

TH

Edited November 4, 2009 by thaihome

[gregb]

Scaremongering

Not scaremongering at all.

Just being honest about the rules, and the way people conveniently misinterpret them for their own interests.

Talk to a Thai divorce lawyer if you doubt the very legal definition of what is considered communal assets and what assets are considered individual. It is a simple question. You will find that nearly all income generated while the couple is married is considered communal. If you subsequently state on the form at the land office that communal money was solely hers, then you have not told the truth.

Only those assets that would be ruled 100% hers in a divorce should be used to purchase the property. And it is simple to understand why. In the event of a divorce, it must be legally 100% true that you have no claim to the land. If you were to use communal assets, then this claim could not be made. And if you can't honestly make that claim, then your wife is in fact acting as a nominee for your interests while you are married.

There are many rules that aren't enforced until it becomes politically expedient to. Again, that paper you sign at the land office is for their benefit, not yours. It does not have a clear legal standing in a divorce. A foreigner can successfully argue the case that part of the house is his during a divorce settlement even if that paper was signed by him. He just needs to prove the assets used to purchase it were truly communal or were in fact his.

Whether anyone can truly win in a Thai court with this strategy I don't know. I do however know 2 foreigners who have successfully settled out of court using this premise with full backing from their divorce attorneys as to the legality of the argument.

BTW, you most definitely have broken the law if you do not sign that paper. The land office is required to verify that communal assets were not used to purchase that land in the event that a foreigner is involved, and you are legally required to cooperate with them to this extent. This is paper is the way they verify that. If you misrepresent your marriage to the land officer, that is clearly fraud.

[mixed]

^ I understand that there are farang ex-husbands who have forced land sales thru the courts as part of the divorce settlement. There was a guy with land on auction in Phuket, he was encouraging ppl to attend the auction and advising them to never give up as they had rights for anything purchased while married.

[straightdave]

my buddy told me this

its slightly off topic and i am not saying anything other than what i was told by someone i trust 100%

thailand is going to make a new law

thais who own the 51% will be required to prove where the money came from

if they cannot they will be forced to sell to the gov at 1 3rd

just reporting what i was told by a guy who has always seem to have an uncanny ability to know whats going on

[fletchsmile]

Having done everything legit - have no worries whatsoever about the Thai government pursuing us as a genuine couple/ family. Condo is in the wife's name. Downpayments and mortgage payments have always come from joint bank accounts and will continue to do so.

[stgrhe]

my buddy told me this

its slightly off topic and i am not saying anything other than what i was told by someone i trust 100%

thailand is going to make a new law

thais who own the 51% will be required to prove where the money came from

if they cannot they will be forced to sell to the gov at 1 3rd

just reporting what i was told by a guy who has always seem to have an uncanny ability to know whats going on

Are you talking about the 51% majority holding by Thais in a company?

[thaihome]

Scaremongering

Not scaremongering at all.

Just being honest about the rules, and the way people conveniently misinterpret them for their own interests.

Talk to a Thai divorce lawyer if you doubt the very legal definition of what is considered communal assets and what assets are considered individual. It is a simple question. You will find that nearly all income generated while the couple is married is considered communal. If you subsequently state on the form at the land office that communal money was solely hers, then you have not told the truth.

Only those assets that would be ruled 100% hers in a divorce should be used to purchase the property. And it is simple to understand why. In the event of a divorce, it must be legally 100% true that you have no claim to the land. If you were to use communal assets, then this claim could not be made. And if you can't honestly make that claim, then your wife is in fact acting as a nominee for your interests while you are married.

There are many rules that aren't enforced until it becomes politically expedient to. Again, that paper you sign at the land office is for their benefit, not yours. It does not have a clear legal standing in a divorce. A foreigner can successfully argue the case that part of the house is his during a divorce settlement even if that paper was signed by him. He just needs to prove the assets used to purchase it were truly communal or were in fact his.

Whether anyone can truly win in a Thai court with this strategy I don't know. I do however know 2 foreigners who have successfully settled out of court using this premise with full backing from their divorce attorneys as to the legality of the argument.

BTW, you most definitely have broken the law if you do not sign that paper. The land office is required to verify that communal assets were not used to purchase that land in the event that a foreigner is involved, and you are legally required to cooperate with them to this extent. This is paper is the way they verify that. If you misrepresent your marriage to the land officer, that is clearly fraud.

You are indeed scaremongering. The poster in question stated he wanted to make some investments in land, he did not want to go the Thai company route and he fully trusted his wife but was worried about hearing stories of the government taking land away.

You responded saying that if the husband gave his wife the money and signs the affidavit he was committing fraud. That is just not true. Then go on and on about splitting assets during a divorce. This is a complete strawman and has nothing to do with the posters question.

The facts remain, you can give your wife the money, sign the affidavit saying you have no interest in the property and it is not matrimonial property and that is all perfectly legal within the law.

In no case as the government ever taken land away from a Thai women married to foreigner. Both of your posts on this subject are attempts to scare people into believing their wives cannot buy property. The can and people do it everyday. Just go to any land office in an urban area and you will see it for yourself.

TH

[monty]

The government does not take away land.

The law clearly states that if a judge finds the title deed not to be in order (i.e. in a company where the Thai shareholders are unable to prove that they actually invested funds in it), then the judge will order the land to be disposed of, and he will state a time frame in which this has to happen.

This time frame will be set between 180 days and 1 year.

Only after this period, the government can proceed with a forced auction, of which the proceeds (minus costs of course) will still go to the entity owning the land.

I seriously doubt they will vote in a law allowing a judge to order the government to buy the land at 33% of listed value!