Falang Name On Land Title

[chownah]

I believe that the property cannot be more than 1 rai in size and you can only do this with 1 property. As Bob says, the Thai wifes name is on the title and there is a notation that you have an interest in the property. The property cannot be sold ,mortgaged or sub  let without your consent and you cannot be thrown off the property.

As i see it the only drawback might be if the relationship breaks up, and you wish to sell the property. Who gets the proceeds from the sale? A friend went through this and his Lawyer advised that if they took this through the court system he would get 100% of the proceeds of the sale but it would take 3-5 years to go through the system. In the end he decided to make a settlement payment to his ex wife instead of waiting for 5 years to go through the courts.

<{POST_SNAPBACK}>

Why do you believe it can only be one rai and ony one property?

[COBBER]

I believe that the property cannot be more than 1 rai in size and you can only do this with 1 property. As Bob says, the Thai wifes name is on the title and there is a notation that you have an interest in the property. The property cannot be sold ,mortgaged or sub  let without your consent and you cannot be thrown off the property.

As i see it the only drawback might be if the relationship breaks up, and you wish to sell the property. Who gets the proceeds from the sale? A friend went through this and his Lawyer advised that if they took this through the court system he would get 100% of the proceeds of the sale but it would take 3-5 years to go through the system. In the end he decided to make a settlement payment to his ex wife instead of waiting for 5 years to go through the courts.

<{POST_SNAPBACK}>

Why do you believe it can only be one rai and ony one property?

<{POST_SNAPBACK}>

The authorities are giving farlang married to thais some protection if they wish to purchase a house but do not want to open the floodgates and allow mass speculation and devalopment which would push house prices up and make them unafordable for thais.

[chownah]

I believe that the property cannot be more than 1 rai in size and you can only do this with 1 property. As Bob says, the Thai wifes name is on the title and there is a notation that you have an interest in the property. The property cannot be sold ,mortgaged or sub  let without your consent and you cannot be thrown off the property.

As i see it the only drawback might be if the relationship breaks up, and you wish to sell the property. Who gets the proceeds from the sale? A friend went through this and his Lawyer advised that if they took this through the court system he would get 100% of the proceeds of the sale but it would take 3-5 years to go through the system. In the end he decided to make a settlement payment to his ex wife instead of waiting for 5 years to go through the courts.

<{POST_SNAPBACK}>

Why do you believe it can only be one rai and ony one property?

<{POST_SNAPBACK}>

The authorities are giving farlang married to thais some protection if they wish to purchase a house but do not want to open the floodgates and allow mass speculation and devalopment which would push house prices up and make them unafordable for thais.

<{POST_SNAPBACK}>

What I mean is where did you get this information?..that its only one rai and one property? Did you read it in a newspaper, see on tv, hear it from someone at a bar? etc..

[Sumitr Man]

Civil & Commercial Code: Book IV: Property: Title VII: Usufruct

Section1417

An immovable property may be subjected to a usufruct by virtue of which the usufructuary is entitled to the possession, use and enjoyment of the property.

He has the right of management of the property.

The usufruct of a forest, mine or quarry entitles the usufructuary to the exploitation of the forest, mine or quarry.

Section 1418

A usufruct may be created either for a period of time or for the life of the usufructuary.

If no time has been fixed, it is presumed the usfruct is for the life of the usufructuary.

If it is created for a period of time, the Provisions of Section 1403 of the CCC shall apply mutatis mutandis.

In any case, the usfruct comes to an end on the death of the usufructuary.

Section 1419

If property is destroyed without compensation being paid, the owner is not bound to restore it; but, if he does so to any extent, the usfruct revives to that extent.

If any compensation is paid, the owner or the usufructuary must restore the property so far as it is possible to do so, having regard to the amount of compensation received, and the usfruct revives to that extent; but if restoration is impossible, the usfruct comes to an end and the compensation must be divided between the owner and the usufruct in proportion to the damage suffered by them respectively.

The same rules apply mutais mutandis in the case of expropriation as well as in the case of partial destruction of the property or of partial impossibility to restore the property.

Section 1420

When usufruct comes to an end, the usufructary must return the property to the owner.

The usufructary is liable for the destruction or depreciation in the value of the property, unless he proves that the damage was not caused by his fault.

He must replace anything he has wrongly consumed.

He is not bound to give compensation for depreciation in value caused by reasonable use.

Section 1421

The usufructuary must, in the exercise of his rights, take as much care of the property as a person of ordinary prudence would take with his own property.

Section 1422

Unless otherwise provided in the act of creating the usufruct, the usufructary may transfer the exercise of his right to a third person.  In such case, the owner of the property may sue the transferee direct.

Section 1423

The owner may object to any unlawful or unreasonable use of the property.

If the owner proves that his rights are in peril, he may demand security from the usufructary, except in the case of a donor who has reserved to himself the usufruct of the property given.

If the usfructuary fails to give security within a reasonable time fixed for the purpose, or if, in spite of the owner's objection, he continues to make use of the property unlawfully or unreasonably, the Court may appoint a Receiver to manage the property in his stead.  Upon security being given, the Court may release the Receiver so appointed.

Section 1424

The usufructary is bound to keep the substance of the property unaltered, and is responsible for ordinary maintenance and petty repairs.

If important maintenance or repairs are necessary for the preservation of the property, the usufructary must forthwith inform the owner thereof and permit them to be carried out.  In case of default by the owner, the usufructary may have the work carried out at the owner's expense.

Section 1425

All extraordinary expenses must be borne by the owner, but in order to meet these or expenses coming under the foregoing section he must realize part of the property unless the usufructary is willing to advance the necessary funds without charging interest.

Section 1426

The usufructary shall, for the duration of the usfruct, bear expenses for the management of the property, pay taxes and duties, and be responsible for interest payable on debts charged upon it.

Section 1427

If required by the owner, the usufructary is bound to insure the property against loss for the benefit of the owner; and if the property is already insured, he is bound to renew such insurance when due.

He must pay the premiums of the insurance for the duration of the usufruct.

Section 1428

No action by the owner against the usufructary or his transferee in connection with the usufruct or vice versa may be entered later than one year after the usufruct comes to an end.  But in an action by the owner who could not have known of the end of the usufruct, the prescription of one year shall run from the time when he knew or ought to have know of it.

is it still raining out

SM

Edited May 30, 2005 by Sumitr Man

[chownah]

Civil & Commercial Code: Book IV: Property: Title VII: Usufruct

Section1417

An immovable property may be subjected to a usufruct by virtue of which the usufructuary is entitled to the possession, use and enjoyment of the property.

He has the right of management of the property.

The usufruct of a forest, mine or quarry entitles the usufructuary to the exploitation of the forest, mine or quarry.

Section 1418

A usufruct may be created either for a period of time or for the life of the usufructuary.

If no time has been fixed, it is presumed the usfruct is for the life of the usufructuary.

If it is created for a period of time, the Provisions of Section 1403 of the CCC shall apply mutatis mutandis.

In any case, the usfruct comes to an end on the death of the usufructuary.

Section 1419

If property is destroyed without compensation being paid, the owner is not bound to restore it; but, if he does so to any extent, the usfruct revives to that extent.

If any compensation is paid, the owner or the usufructuary must restore the property so far as it is possible to do so, having regard to the amount of compensation received, and the usfruct revives to that extent; but if restoration is impossible, the usfruct comes to an end and the compensation must be divided between the owner and the usufruct in proportion to the damage suffered by them respectively.

The same rules apply mutais mutandis in the case of expropriation as well as in the case of partial destruction of the property or of partial impossibility to restore the property.

Section 1420

When usufruct comes to an end, the usufructary must return the property to the owner.

The usufructary is liable for the destruction or depreciation in the value of the property, unless he proves that the damage was not caused by his fault.

He must replace anything he has wrongly consumed.

He is not bound to give compensation for depreciation in value caused by reasonable use.

Section 1421

The usufructuary must, in the exercise of his rights, take as much care of the property as a person of ordinary prudence would take with his own property.

Section 1422

Unless otherwise provided in the act of creating the usufruct, the usufructary may transfer the exercise of his right to a third person.  In such case, the owner of the property may sue the transferee direct.

Section 1423

The owner may object to any unlawful or unreasonable use of the property.

If the owner proves that his rights are in peril, he may demand security from the usufructary, except in the case of a donor who has reserved to himself the usufruct of the property given.

If the usfructuary fails to give security within a reasonable time fixed for the purpose, or if, in spite of the owner's objection, he continues to make use of the property unlawfully or unreasonably, the Court may appoint a Receiver to manage the property in his stead.  Upon security being given, the Court may release the Receiver so appointed.

Section 1424

The usufructary is bound to keep the substance of the property unaltered, and is responsible for ordinary maintenance and petty repairs.

If important maintenance or repairs are necessary for the preservation of the property, the usufructary must forthwith inform the owner thereof and permit them to be carried out.  In case of default by the owner, the usufructary may have the work carried out at the owner's expense.

Section 1425

All extraordinary expenses must be borne by the owner, but in order to meet these or expenses coming under the foregoing section he must realize part of the property unless the usufructary is willing to advance the necessary funds without charging interest.

Section 1426

The usufructary shall, for the duration of the usfruct, bear expenses for the management of the property, pay taxes and duties, and be responsible for interest payable on debts charged upon it.

Section 1427

If required by the owner, the usufructary is bound to insure the property against loss for the benefit of the owner; and if the property is already insured, he is bound to renew such insurance when due.

He must pay the premiums of the insurance for the duration of the usufruct.

Section 1428

No action by the owner against the usufructary or his transferee in connection with the usufruct or vice versa may be entered later than one year after the usufruct comes to an end.  But in an action by the owner who could not have known of the end of the usufruct, the prescription of one year shall run from the time when he knew or ought to have know of it.

is it still raining out

SM

<{POST_SNAPBACK}>

Its not raining here. All this stuff doesn't mention anything about foreigners. Can we assume that a foreigner can be a usufructary under Thai law?

[Sumitr Man]

My informant tells me it does depend on which Land Office you register with - but that basically the anwer is yes [as a foreigner] you can avail yourself of this right...

That said, my informant does say (with what authority I don't as yet know) that it would be virtually impossible to register a usufruct if the land in question is the subject of a mortgage.

SM

[chownah]

My informant tells me it does depend on which Land Office you register with - but that basically the anwer is yes [as a foreigner] you can avail yourself of this right...

That said, my informant does say (with what authority I don't as yet know) that it would be virtually impossible to register a usufruct if the land in question is the subject of a mortgage.

SM 

<{POST_SNAPBACK}>

I'll stick my neck out here and suggest that any mortgage would require subordination of all other claims and so they would rule out a usufruct.

[bdenner]

I don’t know a huge amount about this subject but we own 2 house properties in our village both of which are about to be mortgaged (another story --- might even start a topic on it). When TW asked me for my thoughts on helping 2 close family members I was surprised to learn that I, along with her, have to sign the relevant documentation for both transactions before the bank will part with their money.

This leads me to believe that something has changed since we purchased the properties some 2 and 3 years back although I did not sign anything then about my wife paying for them in both cases. It was made clear to me by the titles office that I had no durestriction over them at the time.

[Sumitr Man]

^*alarm bells ringing in ear*

I think you'll find that you are signing a personal guarantee for the money advanced by the bank <-- nothing to do with the land or the registration of the mortgage over the land.

But I could be wrong

SM

[The_Doctor]

I looked into this a little, as I am buying a house with my Fiancee...

An English friend is in a similar situation with his Thai wife.

He has been able to get the usufruct - I read through the document and it seems to protect his property very well.

For me on the other hand, I couldn't get a usufruct as we have a mortgage - the bank obviously won't give me legal rights to a land that currently they have paid for! Maybe once we've paid the mortgage off, I can have my name added to the land registry... Give it 25 years eh?

But this is nothing new - so surely some of the older-timers have come accross this before?

[bdenner]

^*alarm bells ringing in ear*

I think you'll find that you are signing a personal guarantee for the money advanced by the bank <-- nothing to do with the land or the registration of the mortgage over the land.

But I could be wrong 

SM 

<{POST_SNAPBACK}>

Not on your nelly. If I can't understand what I'm signing then it won't get signed. They will have to get translations and I'd probably take it to a lawyer we have used in the past.

[chownah]

About this usufruct.....I'm getting the idea that if I go to my land office and try to register one on my wife's chanote and they do it and take my money...then you guys are saying that this means that foreigners can indeed be usufructaries under Thai law. There is another possibility.....the people in the land office are not aware of the fact that foreigners are not allowed this under Thai law so they process it giving the impression to everyone that it is allowed...when in reality it is not allowed. I guess I feel this way because it has been said here that not all land offices will do it. If some won't then they must think it is not allowed under Thai law.....Who is correct? This may be something that is not actually stated in any law...subject to court decision. Is the fact that some land offices will take your money and register the statement on the chanote the only evidence that foreigners are allowed to be usufructaries?

Edited May 31, 2005 by chownah

[Sumitr Man]

As far as I understand this concept it is fairly easy:

- there is a concept in Thai law called usufruct;

- anyone, Thai or foreigner, is entitled to it (provided it is given by the property owner)

The only complications are:

- it is a Thai law concept not often used, and we all know what happens when you try and go off the well worn path when dealing with bureaucrats in Thailand

- it appears (and as yet I have NO authority to say this) that the concept only works if you have (1) no other charge on the land (e.g. 30 year lease or mortgage); and (2) the property is freehold property.

So, to many of us who have chosen the 30 year lease or mortgage route, this would not really work. To those who have freehold property with no lease, etc. and are bare-but naked insofar as their exposure is concerned, it may well do.

SM

Edited May 31, 2005 by Sumitr Man

[barryofthailand]

WHAT I HAVE BEEN TOLD IS THAT ANOTHER NAME FOR THE USAFRUCT IS CALLED A (RIGHT OF STAY.) THE REASON ALL THE LAND OFFICES WILL NOT ALLOW THIS IS BECAUSE THE FEES TO ACCOMPLISH THIS IS VERY LOW. tHEY WOULD RATHER DO A 30 YEAR LEASE WICH ALSO PROTECTS YOUR INTEREST, BUT THE LAND OFFICES COLLECTS A REASONABLE AMOUNT OF TAXES TO DO THIS.

[chownah]

WHAT I HAVE BEEN TOLD IS THAT ANOTHER NAME FOR THE USAFRUCT IS CALLED A (RIGHT OF STAY.) THE REASON ALL THE LAND OFFICES WILL NOT ALLOW THIS IS BECAUSE THE FEES TO ACCOMPLISH THIS IS VERY LOW. tHEY WOULD RATHER DO A 30 YEAR LEASE WICH ALSO PROTECTS YOUR INTEREST, BUT THE LAND OFFICES COLLECTS A REASONABLE AMOUNT OF TAXES TO DO THIS.

<{POST_SNAPBACK}>

Interesting....so you're saying that they know it is an option but they simply refuse to process the request. Do you have a source for this information?

[RDN]

WHAT I HAVE BEEN TOLD IS THAT ANOTHER NAME FOR THE USAFRUCT IS CALLED A (RIGHT OF STAY.) THE REASON ALL THE LAND OFFICES WILL NOT ALLOW THIS IS BECAUSE THE FEES TO ACCOMPLISH THIS IS VERY LOW. tHEY WOULD RATHER DO A 30 YEAR LEASE WICH ALSO PROTECTS YOUR INTEREST, BUT THE LAND OFFICES COLLECTS A REASONABLE AMOUNT OF TAXES TO DO THIS.

<{POST_SNAPBACK}>

TURN OFF the caps lock barry. It's rude to shout.

[bkk_mike]

Interesting....so you're saying that they know it is an option but they simply refuse to process the request.  Do you have a source for this information?

<{POST_SNAPBACK}>

First - it appears to only be an option if you're paying cash (no mortgage).

Also, maybe it's not the land office that's refusing. Maybe they're never asked (and as a lawyer would always make more money from a lease agreement, they might not suggest it either).

[barryofthailand]

Sorry for the cap lock unintentional. You might very well be correct about the attorney. I bought my house without an attorney and my information came from the Pattaya land office in Chonburi

[Morden]

We engaged a Thai lawyer when we were contemplating buying a ready-built house in LOS. I made it clear that, although I knew that I could not own the land, I wanted to protect my interests as best I could. We had to complete a couple of official forms at the London Thai Embassy (but this can be done in LOS at the local Land Office). One form described the property and its location and the other, signed by me, said that the money that would buy the house and land belonged to my Thai wife and that neither the money nor the property was mine.

I guess that most of you know about that procedure. However, the lawyer also drew up a 'testamant' in which my wife and I agreed that she would not sell the property during my lifetime unless I agreed. This seems to be the piece of law that the originator of the thread is referring to. As far as I know it's normal 'last will and testament' stuff and not new. It seems to be a fairly simple way of giving farang some security but how it would hold up in Court or with the family if a couple split up I haven't a clue.

We have decided against the house purchase and, instead, plan now to buy 3 rai for a home and business. I look forward to hearing the lawyer's advice about this one!

[otherstuff1957]

Here's a question about another situation: I bought some land in my wife's name about a year ago and signed the standard "no rights to the land" statement. Would having signed this statement interfere with becoming usafructionated in the future?

I'm prepared to walk away from the land if anything happens, but I would like SOME protection before building a house there.

Edited July 3, 2005 by otherstuff1957

[ando]

I dont know if being a legally signed life-tenant really gives some security or rather gives some incentive for the family to have you rubbed out when you are no longer needed or wanted there?

I plan to have the land only in my (Thai) wifes name. The house structure in my own name only, and a 30 year lease on both house and land held in my (Australian) daughters name. So if anything bad was to happen like the family tried to force me out of the home I paid for, I could just walk away and my daughter could have the place demolished. Then they couldn't touch the land till the end of the 30 year lease. Likewise, if they tried to snatch the place by killing me off, my daughter would have the place demolished and they would have an unusable vacant block till the end of the lease.

I plan to build a 2 story place and I will occupy only the upper story. Downstairs will be for the Thai family freeloaders. So, we can all live happily together in a win/win situation, or we can all lose together if they want to get greedy.

But knowing how Thai logic works there is a reasonable chance they will choose the latter.

[Heng]

I plan to have the land only in my (Thai) wifes name. The house structure in my own name only, and a 30 year lease on both house and land held in my (Australian) daughters name. So if anything bad was to happen like the family tried to force me out of the home I paid for, I could just walk away and my daughter could have the place demolished. Then they couldn't touch the land till the end of the 30 year lease. Likewise, if they tried to snatch the place by killing me off, my daughter would have the place demolished and they would have an unusable vacant block till the end of the lease.

Now there's a foundation to build a family on.

There's the law + theory and then there's "what would likely happen in real life." It's likely that no one would sit around and police a piece of land in the middle of nowhere for 30 years out of spite. It's also unlikely that one would be able to get a local team of workers to raze private property unless you were someone of local influence. You'd probably get away with the privately rented bulldozer thing like the German guy who supposedly did this and ran away back to Germany... but this probably wouldn't be feasible year after year.

[Braccobaldo]

...interesting debate but seems to me all of you are trying to cut water with a knife...you wanna protection, secured own property etc. etc...it's almost seven years now I live in Thailand and my modest experience told me that if something with wife go wrong it's better you forget what you make/built for her...especially upcountry....but maybe I'm wrong...good luck to all of you.

[barryofthailand]

I don't think any of these different ways to secure the land for a piece of mind has ever been tested in court. I believe if tested the foreigner would lose. This is what an attorney friend of mine stated.

[Sumitr Man]

In fact, a tax [Revenue Department] case of last year touched on this subject.

At issue in the [tax] case was whether or not income derived from a land rental agreement of 30+30 years needed to be amortized over 60 or 30 years. In that case, the Revenue Department ruling was that the tax needed to be amortized over 30 years, even if all 60 years rental were paid in advance, as there was no certainity that the option to renew the 30 year lease would be exercised.

Nonetheless, as obiter dictum to the tax ruling, the ruling commented that a 30 lease agreement would be a legally binding contract under the provisions of the Civil and Commercial Code. Furthermore, the option to renew the 30 year lease for a further period of 30 years would also be considered legally binding.

Indeed, the only limitation the ruling would place on the arrangement was:

(1) an option to renew a 30 year lease could only be enforceable against the original lessor; and

(2) a further 30 year option (i.e. 30+30+30) may not be enforceable as paragraph 2 of Section 540 of the Civil and Commercial Code specifies:

"The aforesaid period may be renewed, but it must not exceed thirty years from the time of renewal".

Notwithstanding this, the ruling went on to comment that even if there were 2 options to renew, the agreement itself would not be nullified, merely, possibly, the second option to renew. In conclusion, however, the ruling stated that it was not the duty of the case before them to decide on this issue, but merely on the issue of the amortisation of the revenue. Thus, the case can only be used in persuasive argument and is not binding.

SM

[dr_Pat_Pong]

Is RDN's cup half full or half empty ?

[Sumitr Man]

If he is lucky, George has just got another round in

[dr_Pat_Pong]

RDN was at the peak of optimism too. George might just get him a calming Chang

[Mumbo Jumbo]

Can any one point me in the right direction to a Thai web site that shows this ...

(Department is relying on one of 3 sections of the Civil and Commercial Code)

Many Thanks ........ Mumbo

[Sumitr Man]

Can any one point me in the right direction to a Thai web site that shows this ...

(Department is relying on one of 3 sections of the Civil and Commercial Code)

Many Thanks ........ Mumbo

<{POST_SNAPBACK}>

^That looks like something I have written - which, if correct, means it is based on(1) discussion I have with a friend of mine; (2) my personal review of Thai law.

OTH, that may not be my writing, in which case the Department of Land website is http://www.dol.go.th and that may have something of interest for you.

SM

Edited July 20, 2005 by Sumitr Man