Superficies Usufruct & Right Of Habitation

[thaiwanderer]

That non-registerable renewal options 'follow the title' is based on the same principle why a 10 year lease can be enforceable even though not registered at the land office. I believe the civil code says it's not as it exceeds 3 years?

The 90 year structure also aims to create a right to ownership upon full payment of the lease and renewals and you will be hand over all documents related to the land. This is not void because of the boi rule. If at any time in the future someone wants to claim back your purchased leased land you have a pretty good case in court to be deemed the actual owner of the land, and if the laws stay as they are you will likely be ordered to sell within 1 year of receiving notice to do so. Always better than giving it back to the seller?

All licensed developments still offer 90 year leases and these contracts are government approved. It's only with these small developers who are free to offer any structure they like, as there are no rules, you see the usufruct option and poor 30 year lease structures benefiting them, not the buyer. They conveniently refer to post about usufructs on TV where total misinformation is given about usufructs, like the for life + 30 years idea So maybe if someone is very positve about usufructs it could well be a small developer selling a few plots on the name of his wife under usufruct and shows to his potential clients printed TV posts how perfect these structures are. That's the scam.

Physically holding all documents to the land affords no real protection.

How does the BOI rule protect non-BOI matters?

Lease is not the same as freehold ownership - you never own the land even for a period of time. Even in the fantasy world where an option to renew is definitely enforced its an option to renew the lease not to give freehold ownership.

If you are mashing up the option to freehold ownership - they are only even theoretically enforceable where you are then allowed to own the land.

Actually if a court were to deem you 'the actual owner' as you suggest above, the result would not be beneficial at all - you and the lessor would be guilty of an imprisonable offence.

What exactly are these licensed developments you are talking about and 'government approved' contracts as I'm at a loss as to how they are subject to different laws and offer any more protection? (you didn't buy into 'thai elite' as well did you???).

Edited February 5, 2010 by thaiwanderer

[oracle]

That non-registerable renewal options 'follow the title' is based on the same principle why a 10 year lease can be enforceable even though not registered at the land office. I believe the civil code says it's not as it exceeds 3 years?

The 90 year structure also aims to create a right to ownership upon full payment of the lease and renewals and you will be hand over all documents related to the land. This is not void because of the boi rule. If at any time in the future someone wants to claim back your purchased leased land you have a pretty good case in court to be deemed the actual owner of the land, and if the laws stay as they are you will likely be ordered to sell within 1 year of receiving notice to do so. Always better than giving it back to the seller?

All licensed developments still offer 90 year leases and these contracts are government approved. It's only with these small developers who are free to offer any structure they like, as there are no rules, you see the usufruct option and poor 30 year lease structures benefiting them, not the buyer. They conveniently refer to post about usufructs on TV where total misinformation is given about usufructs, like the for life + 30 years idea So maybe if someone is very positve about usufructs it could well be a small developer selling a few plots on the name of his wife under usufruct and shows to his potential clients printed TV posts how perfect these structures are. That's the scam.

Physically holding all documents to the land affords no real protection.

How does the BOI rule protect non-BOI matters?

Lease is not the same as freehold ownership - you never own the land even for a period of time. Even in the fantasy world where an option to renew is definitely enforced its an option to renew the lease not to give freehold ownership.

If you are mashing up the option to freehold ownership - they are only even theoretically enforceable where you are then allowed to own the land.

Actually if a court were to deem you 'the actual owner' as you suggest above, the result would not be beneficial at all - you and the lessor would be guilty of an imprisonable offence.

What exactly are these licensed developments you are talking about and 'government approved' contracts as I'm at a loss as to how they are subject to different laws and offer any more protection? (you didn't buy into 'thai elite' as well did you???).

At least the owner has to apply for a replacement title deed before there is anything he can do with the land. Becuase of the boi rule a sale and purchase agreement of land with a foreigner as the buyer is not void, as land ownership for foreigners is not absolutely prohibited. For the same reason the freehold option in the lease is not void. Sales in an official housing development is a contract controlled business and these contract must comply with minimum consumer protection laws. For the other point read my posts again

[thaiwanderer]

At least the owner has to apply for a replacement title deed before there is anything he can do with the land. Becuase of the boi rule a sale and purchase agreement of land with a foreigner as the buyer is not void, as land ownership for foreigners is not absolutely prohibited. For the same reason the freehold option in the lease is not void. Sales in an official housing development is a contract controlled business and these contract must comply with minimum consumer protection laws. For the other point read my posts again

So holding the documents provides no protection then, as I said?

A land sale and purchase agreement for a foreigner who does not fall under the BOI rule IS void (BECAUSE THEY DON'T FALL UNDER THAT RULE).

The option to convert to freehold is as i've said typically phrased so that the lessor (hopes to) rely on it should their circumstances change or the law change so that they can own the land - if neither of those changes take place they can't just enforce it on the basis that someone else can buy land under the BOI rule.

On your reasoning all foreigners can currently buy land because some foreigners can under the BOI.

How do consumer protection laws protect people who break the law?

There is usually a range of opinions on these matters but with respect yours seem so off kilter / left field i wonder where you have picked them up from?

Edited February 5, 2010 by thaiwanderer

[oracle]

"Companies and 90 year leases are not too bad "

30 year leases are fine. 90 year leases are laughable.

90 year leases rule donx, you are not helping anyone by saying 90 year are laughable. The principle of the 90 year lease is that you make the renewal option to a right that will follow the title of the property based on idea behind supreme court no. 5770/ 1996. If it works for a 3 year lease why not for a 30 year lease? I'm not fully explaining it. And as a back-up you agree the right to freehold upon full payment. I’m sure this right to ownership clause will be valid and you will be deemed the actual owner and ordered to sell within a year. The government is aware of this structure and included it in the latest land office regulations, if they see this clause in the lease the may refuse the lease.

So with a 90 year lease you can go to court when needed and claim your renewal on the terms as agreed, or your ownership rights to the land

You can of course pay the full freehold price for the property and ask to limit the lease to 30 years, and just laugh about the idea behind the 90 year lease. Or a better idea, take a usufruct, it’s free, no taxes, buy in your GF name, no problem at all! and you can rent it out just before you die for another 30 years to your heirs. That’s laughable!!!

I don't have access to supreme court rulings so I will have to leave the job of researching what that ruling actually states to either you or someone else who can look at that ruling. I will say that just because a ruling works for a 3 year lease doesn't mean it will work for a 30 year lease. I am however curious as to what your renewal terms are. What are you agreeing to pay to extend the lease for another 30 years? Surely you are not going to get the extension for free are you? Will it be current market value? Or is it some predetermined value?

You are the only person I have seen post anything on here touting the 90 year lease as anything close to secure (other than posts made by developers or real estate agents). I am not saying you are completely wrong, but there has been much more evidence provided over the years that refutes your claim.

One more question for you. You claimed in a previous post that you have purchased property using this 90 year lease method. I assume that you bought the property from a developer and that the developer is a Thai company that owns the property where a 30 year lease has been registered on the back of the Chanote land title. If the developer sells the property to another company, or the developer goes out of business and the assets of the developer end up in the hands of some other company, what would force the new owner to extend your lease for another 30 years once the first 30 year lease expires? From everything I had read on this subject, the new owner is only obligated to honor the lease that is attached to the land title. Therefore they do not have to honor any other agreement made by the developer to extend the lease past the original term.

I said in a previous post that i’m not buying here but if i would by i would do it under a company, but that is because i know people here and am aware of the risks. Personally i don’t like Thailand that much to buy property here and do not have Thai relations, but it has nothing to do with the legal system of ownership for foreigners.

For the 90 year lease, you must not only approach this from a hire of property point of view and you should not see it as a lease with a 90 year term, as from a hire of property point of view it’s still a registered term of 30 years. 5 years ago a saw a 90 year lease drafted by a member Sam ilo who included this principle in his leases, he specifically referred to the term for it in the lease, so maybe he can comment and give his opinion.

I’m not saying the 90 year lease is perfect, but still you should not ignore it as irrelevant, as for now it is the best option, then again well drafted, and it has the best effect if it is for leasehold land and ownership over the house with a right to transfer to freehold.

[thaiwanderer]

I said in a previous post that i'm not buying here but if i would by i would do it under a company, but that is because i know people here and am aware of the risks. Personally i don't like Thailand that much to buy property here and do not have Thai relations, but it has nothing to do with the legal system of ownership for foreigners.

For the 90 year lease, you must not only approach this from a hire of property point of view and you should not see it as a lease with a 90 year term, as from a hire of property point of view it's still a registered term of 30 years. 5 years ago a saw a 90 year lease drafted by a member Sam ilo who included this principle in his leases, he specifically referred to the term for it in the lease, so maybe he can comment and give his opinion.

I'm not saying the 90 year lease is perfect, but still you should not ignore it as irrelevant, as for now it is the best option, then again well drafted, and it has the best effect if it is for leasehold land and ownership over the house with a right to transfer to freehold.

I doubt very much that Samilo drafted a lease with a 90 year term, perhaps instead one with a 30 year term with clauses purporting to give the right to renew (because 'if made for more than 30 it shall be reduced to 30...' etc).

However just because a contract says something doesn't at all mean it's enforceable either against the other party or even legal where the other party has no objection to it.

Leases should of course not be ignored but all the various add ons to a straightforward 30 year registered lease do not at all carry anything like the weight of the 30 year lease itself.

Indeed its arguable that the 30 year term is weakened by adding the frills.

Edited February 5, 2010 by thaiwanderer

[oracle]

I said in a previous post that i'm not buying here but if i would by i would do it under a company, but that is because i know people here and am aware of the risks. Personally i don't like Thailand that much to buy property here and do not have Thai relations, but it has nothing to do with the legal system of ownership for foreigners.

For the 90 year lease, you must not only approach this from a hire of property point of view and you should not see it as a lease with a 90 year term, as from a hire of property point of view it's still a registered term of 30 years. 5 years ago a saw a 90 year lease drafted by a member Sam ilo who included this principle in his leases, he specifically referred to the term for it in the lease, so maybe he can comment and give his opinion.

I'm not saying the 90 year lease is perfect, but still you should not ignore it as irrelevant, as for now it is the best option, then again well drafted, and it has the best effect if it is for leasehold land and ownership over the house with a right to transfer to freehold.

I doubt very much that Samilo drafted a lease with a 90 year term, perhaps instead one with a 30 year term with clauses purporting to give the right to renew (because 'if made for more than 30 it shall be reduced to 30...' etc).

However just because a contract says something doesn't at all mean it's enforceable either against the other party or even legal where the other party has no objection to it.

Leases should of course not be ignored but all the various add ons to a straightforward 30 year registered lease do not at all carry anything like the weight of the 30 year lease itself.

Indeed its arguable that the 30 year term is weakened by adding the frills.

Annoying and from Phuket Of course 90 is 30 + 30 + 30 don’t you see the whole picture, dumb and old people are not open for new ideas

[thaiwanderer]

Annoying and from Phuket Of course 90 is 30 + 30 + 30 don't you see the whole picture, dumb and old people are not open for new ideas

Annoying because i pick you up of what you say?

'new ideas'????? seems your knowledge is based on reading some clauses five years ago from the contract the legal basis or otherwise of such you do not understand.

You make frequent slips and basic misunderstandings but just keep ploughing on.

That you do not understand the distinction between 90 and 30+30+30 and all else is really shocking for someone who pontificates but then you only insult rather than standing by what you say?

You say you have no interest in investing so whats your knowledge and experience based on?

Edited February 5, 2010 by thaiwanderer

[oracle]

Annoying and from Phuket Of course 90 is 30 + 30 + 30 don't you see the whole picture, dumb and old people are not open for new ideas

Annoying because i pick you up of what you say?

'new ideas'????? seems your knowledge is based on reading some clauses five years ago from the contract the legal basis or otherwise of such you do not understand.

You make frequent slips and basic misunderstandings but just keep ploughing on.

That you do not understand the distinction between 90 and 30+30+30 and all else is really shocking for someone who pontificates but then you only insult rather than standing by what you say?

You say you have no interest in investing so whats your knowledge and experience based on?

If it is an old idea then please explain it in your own words what it is, maybe then I can understand where you are going to or what you do not understand, because now it just blab la with no content. Thanks.

[thaiwanderer]

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

Edited February 5, 2010 by thaiwanderer

[oracle]

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

1. In this 90 year structure you have the right to transfer to freehold and the option to go to court. In court you will be deemed the person with the rights to the land, but as you are not allowed to own land you must sell within 1 year of receiving official notice to do so. This is only if you have to go to court. If you don’t like this option then you leave it out, but as you pay the freehold price for the land anyway, why not put it in?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

3. In this structure you pay for 90 years in advance, does not really matter how you divide it. You do not have to enforce your renewal under this structure. It’s also not that you remain unlawfully upon the land after 30 years + 1 day. You do not have a lessor as he gave up his ownership rights. He may be long death or dissolved after 30 years. Also under hire of property laws the hire is automatically continued after 30 years, only not as a registered lease.

The practical problem is how to sell the property, but this is a problem under any lease or usufruct structure. Also here you can again go to court to obtain approval.

4. Because of the BOI rule the right to transfer to freehold in this structure is not void. For the same reason a sale and purchase agreement of land in the foreigners name is not void, and this has been gone up to the supreme court. If foreigners were absolutely prohibited from owning land it was void.

5. In a licensed housing or condominium development the sale contracts must be approved as part of the licensing procedure of the project. These contracts must comply with consumer protecting laws. If you buy for example from a foreigner with a few plots on his wife’s name you see all kinds of contracts, like usufruct as there are no rules for them.

6 Nothing to do with it.

[caf]

Why are some lawyers recommending odd options?

I think Thaiwander has probably already hit the nail on the head, but just to add my thoughts ....

This broad topic of different ways that farang can exercise (or seek to exercise) control over Thai land is fascinating. At the same time I chuckle whenever I see a thread start with something like "what is the best way for a foreigner to buy property in Thailand?". It's really a bit like another regular "which is the best investment for a foreigner in Thailand?". The answer is it depends on the specific circumstances of the person asking the question ... that's why a financial advisor starts by getting you to fill out a big long questionnaire all about you before they even begin to think about what to recommend. a good investment for one foreigner = a bad investment for another.

Now back to property. Yes you have a range of options open to you, and these become increasingly more complicated as people try to invent new ways to circumvent the intent of the law. Many of these approaches have apparently yet to be tested in court - or if they have then people are keeping quiet about it. None of these means of holding Thai property are fabulous or bulletproof - they all have their real & potential strengths and weaknesses. Assuming you are really committed to buying property here (i.e. rather than renting) then the trick is to choose that particular option that best fits with your specific needs/wants/fears/circumstances (essentially in this case, the best of the worst options).

So, that's one reason why "lawyers are recommending odd options" ... because no two peoples circumstances are exactly the same. Another of course is that many lawyers (and staff in Land dept, etc) are just not up to speed with all/some of these approaches.

I'm not sure if this post actually says anything that will help. Though I agree some of your general observations. Obviously people are different and have different needs and aspirations. Nothing new here.

What is "fascinating" would be discussing the actual pros and cons of the different methods.

What would be "fascinating" would be exposing the motivation behind some people ( developers and others) in pushing a particular method.

To cut to the quick. Is the lack of comment on superficies, for example, because as you correctly put it people including lawyers are not up to speed on what is available in the law. Or are there hidden traps in a superfices

I saw a usufruct agreement yesterday in Thai and English. My written Thai is not exceptional but it was obvious that they were not accurate translations. The Thai document was longer and contained references to statute numbers where the English did not. Only the English copy had been signed. Given that only a Thai version is acceptable as definitive one wonders if usufruct is actually technically in place. Maybe it is not even referenced in the chanote.

caf

[caf]

That non-registerable renewal options 'follow the title' is based on the same principle why a 10 year lease can be enforceable even though not registered at the land office. I believe the civil code says it's not as it exceeds 3 years?

The 90 year structure also aims to create a right to ownership upon full payment of the lease and renewals and you will be hand over all documents related to the land. This is not void because of the boi rule. If at any time in the future someone wants to claim back your purchased leased land you have a pretty good case in court to be deemed the actual owner of the land, and if the laws stay as they are you will likely be ordered to sell within 1 year of receiving notice to do so. Always better than giving it back to the seller?

All licensed developments still offer 90 year leases and these contracts are government approved. It's only with these small developers who are free to offer any structure they like, as there are no rules, you see the usufruct option and poor 30 year lease structures benefiting them, not the buyer. They conveniently refer to post about usufructs on TV where total misinformation is given about usufructs, like the for life + 30 years idea So maybe if someone is very positve about usufructs it could well be a small developer selling a few plots on the name of his wife under usufruct and shows to his potential clients printed TV posts how perfect these structures are. That's the scam.

Physically holding all documents to the land affords no real protection.

How does the BOI rule protect non-BOI matters?

Lease is not the same as freehold ownership - you never own the land even for a period of time. Even in the fantasy world where an option to renew is definitely enforced its an option to renew the lease not to give freehold ownership.

If you are mashing up the option to freehold ownership - they are only even theoretically enforceable where you are then allowed to own the land.

Actually if a court were to deem you 'the actual owner' as you suggest above, the result would not be beneficial at all - you and the lessor would be guilty of an imprisonable offence.

What exactly are these licensed developments you are talking about and 'government approved' contracts as I'm at a loss as to how they are subject to different laws and offer any more protection? (you didn't buy into 'thai elite' as well did you???).

From my reading of the law, I think you are absolutely right.

caf

[caf]

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

1. In this 90 year structure you have the right to transfer to freehold and the option to go to court. In court you will be deemed the person with the rights to the land, but as you are not allowed to own land you must sell within 1 year of receiving official notice to do so. This is only if you have to go to court. If you don't like this option then you leave it out, but as you pay the freehold price for the land anyway, why not put it in?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

3. In this structure you pay for 90 years in advance, does not really matter how you divide it. You do not have to enforce your renewal under this structure. It's also not that you remain unlawfully upon the land after 30 years + 1 day. You do not have a lessor as he gave up his ownership rights. He may be long death or dissolved after 30 years. Also under hire of property laws the hire is automatically continued after 30 years, only not as a registered lease.

The practical problem is how to sell the property, but this is a problem under any lease or usufruct structure. Also here you can again go to court to obtain approval.

4. Because of the BOI rule the right to transfer to freehold in this structure is not void. For the same reason a sale and purchase agreement of land in the foreigners name is not void, and this has been gone up to the supreme court. If foreigners were absolutely prohibited from owning land it was void.

5. In a licensed housing or condominium development the sale contracts must be approved as part of the licensing procedure of the project. These contracts must comply with consumer protecting laws. If you buy for example from a foreigner with a few plots on his wife's name you see all kinds of contracts, like usufruct as there are no rules for them.

6 Nothing to do with it.

I am not saying you are completly wrong but I am finding your logic hard to follow. Perhaps you can help explain a very complicated set of laws.

You talk of transferring to freehold and being given all ownership rights but then admit one can never own land here. But you hope a court may side with you!

On a different matter I had a Chiangmai lawyer tell me that in his opinion I had a 70% chance of obtaining a 100% refund of a house bought in a thai's name with my money when we go to court. His English was good, he was persuasive, and the coffee was good too. Technically he was right. In his opinion the court could give a full refund. The fact that that was extreemly unlikely and that the court would follow the law not his wishful thinking was not an issue for him. I almost fell off my chair laughing but as I say the coffee was good. Are your comments following perhaps a similar train of thought from an unscrupuous lawyer telling you what he knows you want to hear and drafting a document accordingly.

caf

[oracle]

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

1. In this 90 year structure you have the right to transfer to freehold and the option to go to court. In court you will be deemed the person with the rights to the land, but as you are not allowed to own land you must sell within 1 year of receiving official notice to do so. This is only if you have to go to court. If you don't like this option then you leave it out, but as you pay the freehold price for the land anyway, why not put it in?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

3. In this structure you pay for 90 years in advance, does not really matter how you divide it. You do not have to enforce your renewal under this structure. It's also not that you remain unlawfully upon the land after 30 years + 1 day. You do not have a lessor as he gave up his ownership rights. He may be long death or dissolved after 30 years. Also under hire of property laws the hire is automatically continued after 30 years, only not as a registered lease.

The practical problem is how to sell the property, but this is a problem under any lease or usufruct structure. Also here you can again go to court to obtain approval.

4. Because of the BOI rule the right to transfer to freehold in this structure is not void. For the same reason a sale and purchase agreement of land in the foreigners name is not void, and this has been gone up to the supreme court. If foreigners were absolutely prohibited from owning land it was void.

5. In a licensed housing or condominium development the sale contracts must be approved as part of the licensing procedure of the project. These contracts must comply with consumer protecting laws. If you buy for example from a foreigner with a few plots on his wife's name you see all kinds of contracts, like usufruct as there are no rules for them.

6 Nothing to do with it.

I am not saying you are completly wrong but I am finding your logic hard to follow. Perhaps you can help explain a very complicated set of laws.

You talk of transferring to freehold and being given all ownership rights but then admit one can never own land here. But you hope a court may side with you!

On a different matter I had a Chiangmai lawyer tell me that in his opinion I had a 70% chance of obtaining a 100% refund of a house bought in a thai's name with my money when we go to court. His English was good, he was persuasive, and the coffee was good too. Technically he was right. In his opinion the court could give a full refund. The fact that that was extreemly unlikely and that the court would follow the law not his wishful thinking was not an issue for him. I almost fell off my chair laughing but as I say the coffee was good. Are your comments following perhaps a similar train of thought from an unscrupuous lawyer telling you what he knows you want to hear and drafting a document accordingly.

caf

The most straightforward structure is of course simply the 30 year lease combined with the superficies both with renewal options, and expect under normal circumstances to pay the market value of the land upon renewal if renwal is granted. The renewal enforceability of the renewal is not guaranteed under normal hire of property laws.

There is nothing against following the 90 year lease idea with option for freehold. If it is set up correct there is nothing to loose, only to win.

[clinique]

has anyone thought about securing the property by mortgage. lend your wife the money, secure it by mortgage and the property cannot be sold unless the mortgage (registered) is repaid.

[donx]

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

What happens when the developer who made this arrangement goes bankrupt and all of the developers properties become owned by some other company? Surely there is nothing illegal about the newly assigned owner requesting new replacement title deeds. They are also not required to honor any lease other than the 30 year lease listed on the title deed.

I'll tell you what. I've got a property on the beach that my wife owns. She'll sell you a 90 year lease for the current market value. In her will I get everything. She dies 25 years from now. I know about the leased land and because of my will I go to the land department to get a new replacement title (since I can't find the original because it is in your possession). Now as a foreigner I have 1 year to sell it. Which I do. Now the lease is still on there, but someone else may not mind waiting 5 years before they can kick you off "your land".

Do you really think you will win a court case in this situation against the new owner? I think not.

[oracle]

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

What happens when the developer who made this arrangement goes bankrupt and all of the developers properties become owned by some other company? Surely there is nothing illegal about the newly assigned owner requesting new replacement title deeds. They are also not required to honor any lease other than the 30 year lease listed on the title deed.

I'll tell you what. I've got a property on the beach that my wife owns. She'll sell you a 90 year lease for the current market value. In her will I get everything. She dies 25 years from now. I know about the leased land and because of my will I go to the land department to get a new replacement title (since I can't find the original because it is in your possession). Now as a foreigner I have 1 year to sell it. Which I do. Now the lease is still on there, but someone else may not mind waiting 5 years before they can kick you off "your land".

Do you really think you will win a court case in this situation against the new owner? I think not.

And the next q is what happens if also the buyer of the property dies

You can of course say I want a pure 30 year lease that fully complies with the hire of property section as written in the civil code, but do understand it is then just a prepaid rent and you are not even sure you get the 30 years and it ends after 30 years.

As there are variations and different ideas behind the 90 year lease there are different answers.

1 you could base you case on the enforceability of the lease renewal clause against third parties, enforceability of the renewal even if ownership transferred during the lease; or

2 you could base you defense on having obtained ownership rights

The answer to 1 is really how skilled the lawyer was in drafting the lease as it is based on previous supreme court judgments and it is not sure how a court will deal with a renewable 30 year lease as it is not tested.

Answer to 2, your question is, if this developer goes bankrupt and in the unlikely situation a new developer would take over the assets and applies for a new title deed, and a new title deed is given, you again have go to court and have a good case. The court will cancel the new title deed as you obtained ownership rights, but unlawful ownership rights therefore you have to sell the land, but anyway you get the money and can choose who it’s sold to.

See it as when you buy a car or lease-purchase and you would pay in full, signed the sale and purchase agreement or paid the full hire-lease amount, you are handed over all the keys and possession and papers to the car and you drive out the showroom. At that time you are 100% owner even though the car is not yet registered in your name. In case of land in Thailand you are never able to actually register ownership, but because of the BOI rule the arrangement is also not void. It’s not perfect but at least you do not have to give it back to the seller and you will benefit from selling it.

It's a complicated matter and usually 90 year leases are drafted simply as 90 year lease and sold as a 90 year term, however that is not the idea behind a 90 year lease. If you want a 30 year term don't pay a freehold price for it.

[thaiwanderer]

1. On what basis do you consider that an option to convert to freehold can be enforceable without the lessee's circumstances or the law changing so that they may own land in their own name?

2. On what basis do you consider that an option to renew a 30 year lease (or to convert to freehold) can be enforced where the original lessor no longer owns the land?

3. In either case (option to convert to freehold or to renew the lease) is payment for that option at the outset sufficient consideration for later enforcing the option?

4. How does the BOI rule apply to non-BOI matters?

5. On what basis do you consider some contracts (which you have yet to define - please do so) carry more weight and or are subject to different laws than others (i.e. your touted 'government approved' contracts)?

6. How exactly can consumer protection laws result in foreigners being able to own land when otherwise they aren't allowed to?

1. In this 90 year structure you have the right to transfer to freehold and the option to go to court. In court you will be deemed the person with the rights to the land, but as you are not allowed to own land you must sell within 1 year of receiving official notice to do so. This is only if you have to go to court. If you don't like this option then you leave it out, but as you pay the freehold price for the land anyway, why not put it in?

2. You obtained all ownership rights and papers to the land in this structure. The registered owner is not able and allowed to sell. How will the owner sell the land as he is only the registered owner and does not have the papers to the land and there is a lease registered? Apply for a new replacement title deed and give false statements obtain one? This is not likely but if he tries you can go to court.

3. In this structure you pay for 90 years in advance, does not really matter how you divide it. You do not have to enforce your renewal under this structure. It's also not that you remain unlawfully upon the land after 30 years + 1 day. You do not have a lessor as he gave up his ownership rights. He may be long death or dissolved after 30 years. Also under hire of property laws the hire is automatically continued after 30 years, only not as a registered lease.

The practical problem is how to sell the property, but this is a problem under any lease or usufruct structure. Also here you can again go to court to obtain approval.

4. Because of the BOI rule the right to transfer to freehold in this structure is not void. For the same reason a sale and purchase agreement of land in the foreigners name is not void, and this has been gone up to the supreme court. If foreigners were absolutely prohibited from owning land it was void.

5. In a licensed housing or condominium development the sale contracts must be approved as part of the licensing procedure of the project. These contracts must comply with consumer protecting laws. If you buy for example from a foreigner with a few plots on his wife's name you see all kinds of contracts, like usufruct as there are no rules for them.

6 Nothing to do with it.

[thaiwanderer]

(not sure what happened there, anyhow):-

1. The purported options to convert to freehold rely on the law changing to allow foreigners to own land.

Without the change in the law what use is that clause?

2. Leaseholders aren't entitled to the ownership papers beacause they are only leaseholders.

Even if a stupid land owners were to pass them over what use are they - holding them doesn't mean you own the land or can stop the landowner selling the land.

They don't have to lie they can just tell the land office the lessee won't hand them over.

3. What value an unregistered lease?

Anyhow a lease is automatically extinguished at the end of the term without notice, the maximum residential lease term is 30 years.

The worst thing that can happen is the landowner dies as the land passes to his heirs (not the lessee) and the renewal options and all the other frills aren't enforceable against the heirs.

4. Your reasoning here is perverse - I am not entitled but someone else is. As someone else is entitled I am entitled????????????

Foreigners MAY acquire land IF they have the RIGHT to - if no right applies to a particular foreigner they cannot own land (extrapolation does not work here)

5. You avoid the question as to how they offer more protection or are subject to different laws.

There is no right of action against officials where they are negligent or make mistakes.

Tolerance doesn't cleanse illegality.

In any case no official formally approves such clauses as you are touting and on the basis of which you can then enfoce it at court regardless of the clauses offending the law.

6. I know consumer protection laws have nothing to do with it - it was you who mentioned them as if they have some relevance or offer some protection where you want to rely on illegal cluases and or purposes.

[thaiwanderer]

& on a more basic level as you seem to be confusing the two Leasehold IS NOT freehold.

Foreigners can BUY all the thai land they want BUT it doesn't mean they OWN that land

[caf]

Unless written under a superficie, the house is part of the land (under the civil and commercial code)

The Thai legal system is unlike the western. I have seen legal documents drawn up by Thai lawyers which put in many clauses to safeguard the foreigner ( extention of leases etc).

At the end of the day the judges will look to the civil and commercial code and apply that where the clauses are in breach of it. The lawyers know that but they can cream off large fees by drafting these complex but worthless documents. In the Uk for example a lawyer would be de-barred for drafting clauses which would be invalid. They can and do exploit loopholes but they stay within the law. Not so in thailand.

I am probably going for a superficie using a free standard government form. All the clauses within it are consistent with the CCC. Any lawyer generated additions in their own drafted document would be worthless an expensive. I will stick woth documents that have the crest of the ministry of justice on the top.

Any comments, particularly from those viewing but not posting?

caf

[stgrhe]

Unless written under a superficie, the house is part of the land (under the civil and commercial code)

The Thai legal system is unlike the western. I have seen legal documents drawn up by Thai lawyers which put in many clauses to safeguard the foreigner ( extention of leases etc).

At the end of the day the judges will look to the civil and commercial code and apply that where the clauses are in breach of it. The lawyers know that but they can cream off large fees by drafting these complex but worthless documents. In the Uk for example a lawyer would be de-barred for drafting clauses which would be invalid. They can and do exploit loopholes but they stay within the law. Not so in thailand.

I am probably going for a superficie using a free standard government form. All the clauses within it are consistent with the CCC. Any lawyer generated additions in their own drafted document would be worthless an expensive. I will stick woth documents that have the crest of the ministry of justice on the top.

Any comments, particularly from those viewing but not posting?

caf

Caf, you should not post double posts in different threads.