Can I Place Enforceable Building Restictions On Land I Sell ?

[mickba]

I have a house and 1.5 Rai of land in Company ownership.

There are 2 Chanotes. One for the 1 Rai the house is built on and one for .5 Rai adjoining.

I want to sell everything, but I have an acceptable offer for the .5 Rai plot.

This plot lies in front of the house and a tall building or something eg. for industrial use would affect the value of it.

There may soon be another major development nearby that would make this prime land for business use.

The proposed buyer says he wants to build 2 small single storey houses on the land, which would be OK, but I can see 2 single storey (according to City Hall plans) houses from here which were built on stilts making them the same height as a 2 storey building.

He says he will provide plans and will sign a Contract not to develop the land in any other way.

Can such a Contract be made in an enforceable way in Thailand?

In England one could place a restrictive Covenant on the land.

In Thailand I worry that even such a Contract could be avoided by simply transferring ownership to another.

What recourse would I have if he built higher and/or differently i.e. would I have to spend a fortune taking him to Court?

Is there anything I could do at City Hall?

Thanks for any suggestions or input.

[InterestedObserver]

Enforceable contracts in Thailand, you can't be serious! If you want to preserve the view or whatever, don't sell the land. You would spend a small fortune litigating your way through the Thai court system in case of a contract breach.

Edited March 18, 2010 by InterestedObserver

[mickba]

Enforceable contracts in Thailand, you can't be serious! If you want to preserve the view or whatever, don't sell the land. You would spend a small fortune litigating your way through the Thai court system in case of a contract breach.

That was my assumption, but the Q is serious and I thought it might be worth asking in case there's something can be done at the Land Office/City Hall. Again I think not, but someone else has perhaps been in the same position and I would be interested what they did about it.

In my own case it would suit me to sell the half rai to finance building a wall and general finishing, but I don't want to affect the value of the house obviously.

We can't always own the land between our houses and the view. Many views are affected by new developments unfortunately. It's just a Q of to what extent.

[katabeachbum]

You can enter a sales agreement with your buyer, and it can be enforced in court for 3 years. But essentially its gonna cost to enforce it, if possible.

When transfer is completed, you basicly loose control

[mickba]

You can enter a sales agreement with your buyer, and it can be enforced in court for 3 years. But essentially its gonna cost to enforce it, if possible.

When transfer is completed, you basicly loose control

I have to go and see a Lawyer soon, but logically (forgetting where I am for a moment) from what you are saying, one answer might be to not transfer title/chanote until the houses are complete.

I appreciate that would be asking a lot from the buyer, but, if he would agree (and that might be the only way he can buy the plot) then I would have thought it would be possible to draw up a suitable contract and maybe only take part of the purchase price at the outset.

Of course if something went wrong, the onus would be on him to enforce it ?

[katabeachbum]

You can enter a sales agreement with your buyer, and it can be enforced in court for 3 years. But essentially its gonna cost to enforce it, if possible.

When transfer is completed, you basicly loose control

I have to go and see a Lawyer soon, but logically (forgetting where I am for a moment) from what you are saying, one answer might be to not transfer title/chanote until the houses are complete.

I appreciate that would be asking a lot from the buyer, but, if he would agree (and that might be the only way he can buy the plot) then I would have thought it would be possible to draw up a suitable contract and maybe only take part of the purchase price at the outset.

Of course if something went wrong, the onus would be on him to enforce it ?

it could work, if the buyer trusts you. registered owner is in charge of buildingpermit/completion/tabien baan on completion. with an arcitecture not stimulating to later increase of height, you have a fair chance to avoid something taller later on.

[harrry]

In Fremantle australia aperson triedtoincludeahight restriction inhis sale contract. The new owner filledthe land withseveral metres of soil. needless to say the view was lost. The original owner was ordered by the court to transfer the title, refused and spent several months in jail. The protest is still continuing.Good luckif you think you are safe here.

[jackdawson]

Can such a Contract be made in an enforceable way in Thailand?

do u know any other jokes?

that was a good one

[mickba]

In Fremantle australia aperson triedtoincludeahight restriction inhis sale contract. The new owner filledthe land withseveral metres of soil. needless to say the view was lost. ............................................

The Q of landfill has been discussed and he would need to add some. As long as it wasn't more than a metre and the house plans were adhered to that would still be OK. It would be impractical and nonsensical (yes I know where I am) to add more and even then it would have to be retained. Landfill doesn't worry me too much but does need to be considered.

[mickba]

You can enter a sales agreement with your buyer, and it can be enforced in court for 3 years. But essentially its gonna cost to enforce it, if possible.

When transfer is completed, you basicly loose control

I have to go and see a Lawyer soon, but logically (forgetting where I am for a moment) from what you are saying, one answer might be to not transfer title/chanote until the houses are complete.

I appreciate that would be asking a lot from the buyer, but, if he would agree (and that might be the only way he can buy the plot) then I would have thought it would be possible to draw up a suitable contract and maybe only take part of the purchase price at the outset.

Of course if something went wrong, the onus would be on him to enforce it ?

it could work, if the buyer trusts you. registered owner is in charge of buildingpermit/completion/tabien baan on completion. with an arcitecture not stimulating to later increase of height, you have a fair chance to avoid something taller later on.

Thanks. I'm going to run it past the Lawyer on that basis and see what he thinks.

If I only ask for part payment at the outset that may appeal to the buyer anyway, as long as he feels that the Contract is strong enough to oblige me to complete the transfer if he complies.

He would make the planning application, so the houses would be in his name ultimately.

Are you suggesting that I should make the application in my Company's name and agree to transfer everything on completion? I can ask the Lawyer but I think it might be too much to expect the buyer to build 2 houses at his cost in my name.

If he follows the plans, then to some extent the footings would only be sufficent for a single storey house. To increase the height later would mean tearing down 2 houses and then doing new footings - not impossible but unlikely. He'd be adding about 3 million to the plot cost, so he'd need to have a really cunning plan as to what he could do there.

Ultimately one can only try, but the Chanote is all important here and is the only thing I can use to persuade him to comply.

Edited March 19, 2010 by mickba

[katabeachbum]

You can enter a sales agreement with your buyer, and it can be enforced in court for 3 years. But essentially its gonna cost to enforce it, if possible.

When transfer is completed, you basicly loose control

I have to go and see a Lawyer soon, but logically (forgetting where I am for a moment) from what you are saying, one answer might be to not transfer title/chanote until the houses are complete.

I appreciate that would be asking a lot from the buyer, but, if he would agree (and that might be the only way he can buy the plot) then I would have thought it would be possible to draw up a suitable contract and maybe only take part of the purchase price at the outset.

Of course if something went wrong, the onus would be on him to enforce it ?

it could work, if the buyer trusts you. registered owner is in charge of buildingpermit/completion/tabien baan on completion. with an arcitecture not stimulating to later increase of height, you have a fair chance to avoid something taller later on.

Thanks. I'm going to run it past the Lawyer on that basis and see what he thinks.

If I only ask for part payment at the outset that may appeal to the buyer anyway, as long as he feels that the Contract is strong enough to oblige me to complete the transfer if he complies.

He would make the planning application, so the houses would be in his name ultimately.

Are you suggesting that I should make the application in my Company's name and agree to transfer everything on completion? I can ask the Lawyer but I think it might be too much to expect the buyer to build 2 houses at his cost in my name.

If he follows the plans, then to some extent the footings would only be sufficent for a single storey house. To increase the height later would mean tearing down 2 houses and then doing new footings - not impossible but unlikely. He'd be adding about 3 million to the plot cost, so he'd need to have a really cunning plan as to what he could do there.

Ultimately one can only try, but the Chanote is all important here and is the only thing I can use to persuade him to comply.

for him to apply for buildingpermit in his name, a lease or usufruct is usually needed. then you are not in full control of the land any more

[PattayaParent]

it could work, if the buyer trusts you. registered owner is in charge of buildingpermit/completion/tabien baan on completion. with an arcitecture not stimulating to later increase of height, you have a fair chance to avoid something taller later on.

What's to stop him chucking up a cheap shell of a house and they when the land is transferred knocking it down and building what he wants?

[steelepulse]

Don't sell unless you absolutely need the money right now.

[mickba]

for him to apply for building permit in his name, a lease or usufruct is usually needed. then you are not in full control of the land any more

Ah! - forgot I wasn't in UK again.

OK, so my Company would have to make the Application I guess. As you suggested earlier, that would give me more control. I'm just not sure how comfortable he would be with that.

I suppose I could grant a short Lease to allow him to do it but that sounds too complicated.

There is also an English guy involved, who would live in one of the houses and he returns in 10 days. No doubt he will have a view, as I suspect it's his money we're talking about. Obviously I'm curious about how eventual ownership would be dealt with, but that shouldn't be an issue for me (?). It's just that I have to be aware that the Thai guy may be scamming his farang 'friend' in some way. I'd hazard a guess that Thai guy gets a cheap/free house out of this deal and keeps his name on the Chanote for the whole. Again no problem to me, as long as the English guy knows what he's doing and doesn't find out part way through and drop out. There's too much conjecture there, but that's how you get to think after a while here.

Thanks very much for your input.

What's to stop him chucking up a cheap shell of a house and they when the land is transferred knocking it down and building what he wants?

The object of the exercise would be to ensure that he builds what he says he would as per the plans and the Planning Approval, before the transfer of the Chanote.

Looking at the plans again I think the build cost including walls would be about 4 million. If, after all that, he wanted to tear everything down (more cost) then you're right, he could build whatever he wanted. Then I would wonder why he didn't buy the 2 Rai plot next door for less than half of that, instead of my Half Rai.

Maybe he's discovered an oil or gold under my land, but I very much doubt it.

Don't sell unless you absolutely need the money right now.

I don't absolutely need it, but it would suit my purposes.

I didn't need 1.5 Rai, but I wanted this site and I had to buy the whole. I had the land remeasured and a new Chanote issued for the 1 Rai the house is built on.

It was always my intention to sell the .5 Rai to recoup some money to finance the house build cost. I still have the wall to build and air con' to put in. With the GBP at 48 THB I have no intention of bringing more money in for the forseeable future. The buyer agrees to build the whole wall for the .5 Rai at his cost, which would reduce my wall costs by about 20%.

The proceeds from this sale would allow me to finish the house and make it more saleable (as long as it doesn't have something undesirable in front of it.

The house has about 20 metres clear to the front, the land is elevated and the house is on stilts, so single storey development would not be a problem.

[mickba]

By complete coincidence bedlam broke out yesterday about 2-300 metres from my house.

There was a fierce argument between 2 Thai men and many life threatening threats were made.

The first I have met several times and he appears to be pseudo police of some sort. I've had no problems with him and he chooses to introduce prospective buyers from time to time.

He sold a 2 Rai plot of land, next to his home, to the second man to build himself a home there.

Work started on landfill etc. a month or so ago.

They started to dig the footings in the last day or so and apparently it is suddenly obvious that a block of apartments is being built there.

The seller says he can't do that.

The buyer says up2me - I changed my mind.

Goes to show eh?

[katabeachbum]

By complete coincidence bedlam broke out yesterday about 2-300 metres from my house.

There was a fierce argument between 2 Thai men and many life threatening threats were made.

The first I have met several times and he appears to be pseudo police of some sort. I've had no problems with him and he chooses to introduce prospective buyers from time to time.

He sold a 2 Rai plot of land, next to his home, to the second man to build himself a home there.

Work started on landfill etc. a month or so ago.

They started to dig the footings in the last day or so and apparently it is suddenly obvious that a block of apartments is being built there.

The seller says he can't do that.

The buyer says up2me - I changed my mind.

Goes to show eh?

transfer of land deed completed, up to him sure

[mickba]

transfer of land deed completed, up to him sure

Exactly.

I've heard back from my Lawyer and he's saying a 'good' sales contract is enough.

I'm not happy with that and I'm told the Thai guy won't be happy with a delayed transfer so if that's how it is it looks like no sale.

I didn't want to copy the Lawyer's words here, so I've PM'd you.

Thanks.

[johnnyk]

Protect yourself. Selling anything less than the whole 1.5 rai leaves you open to nightmares. When its time to go, sell the whole package but nothing less.

[jackdawson]

bedlam broke out

note to self: continue to not buy property in (the sticks) of thailand (or anywhere else here for that matter)

[mickba]

.....................note to self: continue to not buy property in (the sticks) of thailand (or anywhere else here for that matter)

That's 4 cheap snide snipes at genuine posters on here in only the past couple of days.

You clearly are not remotely interested in aquiring property here so why do you spend so much time trawling and trolling these threads?

Maybe "note to self: grow up" might work.

[LennyW]

^ Well said mickba.

[oracle]

I’m not sure, but to have anything registered on the land title a servitude may work, instead of a contract. I found some info here. Would be interesting to know what you lawyer says about this.

[mickba]

I'm not sure, but to have anything registered on the land title a servitude may work, instead of a contract. I found some info here. Would be interesting to know what you lawyer says about this.

At first reading it sounds like the perfect solution.

I'll certainly ask my Lawyer to comment on its suitability for my situation asap.

Thanks very much for that. Whether or not it's the solution, it does illustrate that it isn't always sufficient to rely on the Lawyers to come up with the answers and, as is so often the case, there is some dam_n good information and advice on this board.

Thanks again, I'll let you know what he says.

[InterestedObserver]

Contract or servitude, makes no difference, it all comes down to enforcement. How do you plan on enforcing your restrictions, especially if the new owner has more political clout than you do.

[katabeachbum]

Contract or servitude, makes no difference, it all comes down to enforcement. How do you plan on enforcing your restrictions, especially if the new owner has more political clout than you do.

have to agree on that. transfer completed, a servitude takes years and money to enforce, possibly with a bullet to your head

[mickba]

Contract or servitude, makes no difference, it all comes down to enforcement. How do you plan on enforcing your restrictions, especially if the new owner has more political clout than you do.

have to agree on that. transfer completed, a servitude takes years and money to enforce, possibly with a bullet to your head

I was (bravely) assuming that registering a Servitude on the land would prevent the buyer from getting Planning Approval for anything more than the 2 single storey dwellings specified in it i.e. in the same way as placing covenants on the Deeds of land in the UK etc..

Registering a Servitude on the Chanote, which can only be removed by agreement between the covenanting previous owner and the new owner (whoever) would surely be significantly different to a Sales Agreement between Buyer and Seller, which I would imagine would be easily avoided and impracticable to enforce.

Anything registered on the Chanote is self enforcing to some extent isn't it? For example, it is difficult to mortgage or sell or develop land with a Lease properly registered on the Chanote. I know many of the pitfalls of registering Leases on land, so let's not go there please.

I appreciate that doesn't always prevent builders adding the odd storey or two (as in a condo' thread I've just been reading) but the builder does face the risk of City Hall ordering the non approved items to be corrected.

I'll wait for the Lawyer's reply, but are you saying I've misunderstood the way a Servitude would work?

Thanks for your cautionary comments. It all helps with the thought processes.

[mickba]

Don't sell unless you absolutely need the money right now.

I answered previously that I do not absolutely need the money right now.

However, from my other posts you can extrapulate that the home I now live in does not have a wall/security or air conditioning or landscaping.

While the exchange rate is less than 60 baht/GBP, which may be for quite a while, then effectively the house will not be completed (by me). That makes it more difficult to sell and less comfortable and secure to live in.

The revenue from the sale of the land would provide the funds to complete (plus some).

Therefore, according to some people's logic, that might mean that I do absolutely need the money right now and that's the only reason I'm even considering the offer.

[katabeachbum]

Contract or servitude, makes no difference, it all comes down to enforcement. How do you plan on enforcing your restrictions, especially if the new owner has more political clout than you do.

have to agree on that. transfer completed, a servitude takes years and money to enforce, possibly with a bullet to your head

I was (bravely) assuming that registering a Servitude on the land would prevent the buyer from getting Planning Approval for anything more than the 2 single storey dwellings specified in it i.e. in the same way as placing covenants on the Deeds of land in the UK etc..

Registering a Servitude on the Chanote, which can only be removed by agreement between the covenanting previous owner and the new owner (whoever) would surely be significantly different to a Sales Agreement between Buyer and Seller, which I would imagine would be easily avoided and impracticable to enforce.

Anything registered on the Chanote is self enforcing to some extent isn't it? For example, it is difficult to mortgage or sell or develop land with a Lease properly registered on the Chanote. I know many of the pitfalls of registering Leases on land, so let's not go there please.

I appreciate that doesn't always prevent builders adding the odd storey or two (as in a condo' thread I've just been reading) but the builder does face the risk of City Hall ordering the non approved items to be corrected.

I'll wait for the Lawyer's reply, but are you saying I've misunderstood the way a Servitude would work?

Thanks for your cautionary comments. It all helps with the thought processes.

Tessabaan issuing buildingpermits would not read the Servitude, since it doenst come with the land deed. Its written on the back of land deed a Servitude exists and for how long its valid, but no content. Tessabaan would issue a buildingpermit to new owner based on plans and what soning and practice allows. This building permit is not publicly available.

If construction is not within Servitudes limits, you could bring the case to court.

[mickba]

Tessabaan issuing buildingpermits would not read the Servitude, since it doenst come with the land deed. Its written on the back of land deed a Servitude exists and for how long its valid, but no content. Tessabaan would issue a buildingpermit to new owner based on plans and what soning and practice allows. This building permit is not publicly available.

If construction is not within Servitudes limits, you could bring the case to court.

It seems odd (to me anyway) that the Land Office would register a Servitude on the Chanote, but City Hall would not want to know what it says. It could, in fact say no building at all I suppose.

I thought that when something eg. a Lease, was registered on the Chanote then a copy of it was stamped by the Land Office and incorporated (stapled to) the Chanote.

How would a subsequent proposed buyer find out what it said?

If going to Court is to be my only recourse, then I doubt I'll sell.

Is the Servitude better/stronger than a Sales Contract for being mentioned on the Chanote or not then?

[katabeachbum]

Tessabaan issuing buildingpermits would not read the Servitude, since it doenst come with the land deed. Its written on the back of land deed a Servitude exists and for how long its valid, but no content. Tessabaan would issue a buildingpermit to new owner based on plans and what soning and practice allows. This building permit is not publicly available.

If construction is not within Servitudes limits, you could bring the case to court.

It seems odd (to me anyway) that the Land Office would register a Servitude on the Chanote, but City Hall would not want to know what it says. It could, in fact say no building at all I suppose.

I thought that when something eg. a Lease, was registered on the Chanote then a copy of it was stamped by the Land Office and incorporated (stapled to) the Chanote.

How would a subsequent proposed buyer find out what it said?

If going to Court is to be my only recourse, then I doubt I'll sell.

Is the Servitude better/stronger than a Sales Contract for being mentioned on the Chanote or not then?

sales contracts are usually called prepurchase-presale agreement. they are intentions on what to do before transfer. I dont think any court would deem a limitation in buildingheight valid when transfer is completed, since buildingheight is tessabaans responsibility

Servitude is agreed limitations on the transfered land, and if broken to be enforced in court

when a servitude, usufruct, lease, loan or other limitation is registered in land deed, possible buyers need to investigate their content at land office. most lawyers seem to charge 10k baht to do so. one of the reasons to not pay for property until transfer is accepted by land office