Leasing Land From Thai Wife

[stgrhe]

The legal rights of the lessor ( the owner) are very important as without his /her agreement no lease will be signed and lessor could well say " take it or leave it" and there is nothing you could do about it. The owner has the legal advantage at all times.

Whatt if you were to lease the land from a company? they may want you to pay rent on the lease or an upfront payment with a short term lease eg 5/10 years with an "option to renew" if both parties agree. If the owner does not agree there is not much you can do about it.

You can be sure that an owner will protect his /her own interests.

"The owner has the legal advantage at all times."

That goes directly against what my lawyer advised me regarding leases - the owner of the land is legally bound by the lease contract at all times was what he said, not that the owner has legal advantage at all times. This is for a lease registered at the land office and included at the back of the chanote of course. Everything is up to what is written in the lease contract

Your lawyer is absolutely right. Also for some reason many people think that Thais always are given the upper hand in a court case with a Westerner, and I suppose that such misconceptions about the Thai law are easily spread through a forum like this by people who are not used to read contract and law texts.

[JimGant]

No, a registered lease can not be canceled by the land owner unless the owner is married to the lease holder.

First I've ever seen that....any references?

(Highly interested, since I lease from my wife....)

[donx]

No, a registered lease can not be canceled by the land owner unless the owner is married to the lease holder.

First I've ever seen that....any references?

(Highly interested, since I lease from my wife....)

Others have previously pointed out that somewhere in the Thai legal code there is a statement that any contract made between spouses can be withdrawn for any reason. I'm sure someone will point out the exact wording for us. Did you make the lease contract before you were married? I don't know if that would make a difference but some believe it does. And since this applies to all legal contracts, it is believed by many here that usufructs are also subject to being canceled by a Thai spouse. This is why many believe these protections are in place to protect the foreign spouse in the event that the Thai spouse passes away before the foreign spouse. It is debatable whether it protects the foreign spouse in the case of a divorce.

[Dah fahrang]

Update from the O.P

Went to our local Land Office, Phtharam, Ratchaburi, this morning, with Thai wife. 8.15am arrival, 8.30am meeting.

Paperwork taken:

• chanote showing registration of ownership in wife's married (fahrang) name:
  
• wedding certificate: Hong Kong marriage in 1982, notarised by British Embassy in Bangkok, translated then notarised by Thai Department for Consular Affairs:
  
• daughter's Thai birth certificate:
  
• wife's will, drawn up at, and a copy of which is lodged at, the local amphur.
  

A very upbeat, positive meeting followed with the Director of the Local Land Office, a youngish guy, speaking good English, and with quite a sense of humour.

We put the scenario (in the original post) to him. He looked carefully through the paperwork we took.

He said that we could draw up a lease, but, his strong advice was that there was absolutely no need.

He confirmed that:

• Under Thai Law, we are legally married, had been so for 28 years, with a legally upholdable wedding certificate translated and notarised into Thai, which the Land Office would recognise and honour.
  
• The total area of my wife's land is marginally in excess of 1 Rai. The surname on the chanote is identical to that on our wedding certificate.
  
• Should my wife pre-decease me, my right live, without threat of disposition on this approx. 1 Rai of land, owned by my legal wife at the time of her death, would be upheld by our local Land Office.
  
• Simply put, should my wife die before me, I can live on the land for the rest of my life.
  No member of my family, my wife's family or our daughter's future family can displace me.
  Same goes for Government Officers acting under the guise of Land Office.
  

The conversation which followed related to my wife's will.

She leaves all property to me, unless I pre-decease her, and vice versa.

At the time of writing the will, she excluded all reference to land, simply because we believed it was impossible for me, fahrang, to inherit any land whatsoever. We assumed our daughter, (Thai National) would be the default inheritor of the land.

He clearly said we were wrong in this assumption, and that as the name on the wedding certificate matched that on the chanote, there would be no question of my right to continue to live on the land until my death. At that time, the land would pass to the ownership of our daughter, with or without a will. My will covers other assets that I hopefully will not have squandered during my senior years!

I then asked him what would be the situation if, as is likely in the Thai Civil Service, he were moved to a different post or office, and the new 'boss' ruled differently. He was quite emphatic:

"The law is the law. Nobody in any Land Office can arbitrarily re-write the law, and if they tried to do so, you would win any legal challenge".

He was particularly emphatic about the surnames on the marriage certificate and the chanote matching.

These two documents together, it seems, would be all that I would need to claim my right to live on the land which had been in my wife's ownership before she died.

With a brief exchange on English Premier League Football, and the antics of Wayne Rooney, we left after 45 minutes.

We are taking his advice, and will not pursue a lease.

I hope none of the circumstances in my original scenario materialise.

I will sleep more easily in my bed.

I am pleasantly re-assured by this new breed of helpful Thai Civil Servant.

[donx]

Thank you for that interesting update. The information you have provided flies in the face of much that has been discussed previously in this forum.

This link will be useful to compare to what you have reported back to us. There is also this link which discussed this matter earlier.

Even if what you were told is upheld in the future this doesn't help in my situation since my marriage has never been registered in Thailand, the name on the Chanote of all the land my wife owns is in her maiden name, and because all of the land she owns is more than 1 rai. We do have 3 Thai/US children that can inherit all of her land, so I'm not too concerned. Nevertheless, it would be really nice if I could actually own at least 1 rai of her land in case she dies before me.

Thank you very much again for this interesting information.

[stgrhe]

No, a registered lease can not be canceled by the land owner unless the owner is married to the lease holder.

First I've ever seen that....any references?

(Highly interested, since I lease from my wife....)

Others have previously pointed out that somewhere in the Thai legal code there is a statement that any contract made between spouses can be withdrawn for any reason. I'm sure someone will point out the exact wording for us. Did you make the lease contract before you were married? I don't know if that would make a difference but some believe it does. And since this applies to all legal contracts, it is believed by many here that usufructs are also subject to being canceled by a Thai spouse. This is why many believe these protections are in place to protect the foreign spouse in the event that the Thai spouse passes away before the foreign spouse. It is debatable whether it protects the foreign spouse in the case of a divorce.

Section 1469 of the Thailand Civil and Commercial Code

Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby.

[electau]

With reference to post number 34, it would appear if lands office is correct in their interpretation, a lease is not required if one is legally married to a Thai and the Thai party dies.

But what occurs when one divorces and you have no lease? Can you obtain a lease from your ex wife after you divorce? One would doubt it.

But what if you had a lease from your wife and you divorce at a later date. What happends to your lease then?

But one will stand by my previous statement, perhaps one should have qualified it further, a lessor or a lessee can terminate a contract at any time but in that case either party would require notification in writing with a predetermined period ( eg 1 year ) and compensation may/shall be payable to either party. It would be written into the contract. One here is refering to contracts in general not a specific one or type.

The words "may" and "shall" these are direct translations from the Thai? And do they mean the same in Thai as they do in English?

May. expressing a possibility

Shall. emphatic intention, strong assertion,command or duty.

Source. Oxford English Dictionary (OED).

It would be interesting to see the results of a test case in a Thai Court. Interpretations made by Officials may not be correct if challenged in a Court.

It would set a precedent in Thai Law. Is there already a precendent in Thai Law? Does the Thai Legal System have precedents?

Edited September 14, 2010 by electau

[JimGant]

But what occurs when one divorces and you have no lease?

Actually, as reported above, the Thai wife has one year after divorce to cancel the lease -- without the ex-husband's consent. (Or, to cancel before any divorce -- again without the husband's consent.)

And, there are a lot of threads where this information would be pertinent -- those many threads with soap opera situations -- and young wives.

But, the OP's been married for 30 years. I've been married for 35. And I bet donx is also in this category. So, the element of marital unbliss isn't really a player with this thread -- our relationships have passed the test of time.

And, I really could care less about ownership should the wife predecease me. We've no kids, but per the will, I can sell -- or give the land to my niece (the most likely scenario). She's due to inherit it in the long run anyway. And I feel completely secure the lease will allow me to stay for its duration (when I'm 90, but most likely dead) in the unlikely event the niece gets any ideas.

But, like donx, it's considerably more than one rai, so the inheritance/ownership option is out (I guess I could carve out one rai, where the house is, and give the rest to the niece. But I'm not sure that would be worth the bother....).

For the OP: I'd go ahead and lease anyway, just for some added peace-of-mind, as this inheritance wrinkle hasn't apparently been tested. And, it can be simple to do. We didn't use a lawyer; worked with a sharp agent in the Land Office; and it didn't cost much. (The wife asked the land agent what rent figure should be used [upon which the fee is based]; he gave some unrealistically low figure, which he assured was acceptable. The biggest cost was probably the tip we gave this guy.)

And, there's the usufruct route. May need a lawyer for that. Don't know. Just remember dismissing switching from a lease to a usufruct a few years ago. Can't remember why exactly -- maybe my age.

[electau]

[Extract] from post number 38.

We didn't use a lawyer; worked with a sharp agent in the Land Office; and it didn't cost much. (The wife asked the land agent what rent figure should be used [upon which the fee is based]; he gave some unrealistically low figure, which he assured was acceptable. The biggest cost was probably the tip we gave this guy.)

And, there's the usufruct route. May need a lawyer for that. Don't know.

The above shows why one should use a reputable lawyer that will work in your interests and why one should question any clause in a lease that concerns you. And ask how your lawyer interprets any clause. Get a copy of your lease in English (or your own language) and have it certified as a correct translation before you sign the lease agreement.

Edited September 16, 2010 by electau

[JimGant]

The above shows why one should use a reputable lawyer that will work in your interests and why one should question any clause in a lease that concerns you.

Oh, for a straightforward lease like mine -- where the only clause is essentially 'I lease the place for 30 years' -- you suggest I should have paid a lawyer? My name is on the back of the chanote; all the stamps have been affixed; all the required fees have been paid. Paying a lawyer would have gotten me what?

My neighbor went the lease route also. Got a lawyer -- in the five figure arena. Got the same phraseology on the back of his chanote; and paid much higher fees, 'cause the stupid lawyer had her own cookie-cutter figures on what constituted a reasonable rent figure.

[electau]

The above shows why one should use a reputable lawyer that will work in your interests and why one should question any clause in a lease that concerns you.

Oh, for a straightforward lease like mine -- where the only clause is essentially 'I lease the place for 30 years' -- you suggest I should have paid a lawyer? My name is on the back of the chanote; all the stamps have been affixed; all the required fees have been paid. Paying a lawyer would have gotten me what?

My neighbor went the lease route also. Got a lawyer -- in the five figure arena. Got the same phraseology on the back of his chanote; and paid much higher fees, 'cause the stupid lawyer had her own cookie-cutter figures on what constituted a reasonable rent figure.

10000 THB to 20000THB are five figure amounts not a large amount to have a lease drawn up correctly and witnessed

First get an estimate of the costs then get a official valuation of the land, resonable rent per year might well be 5% of the valuation.

.

Edited September 16, 2010 by electau

[MikeyIdea]

The above shows why one should use a reputable lawyer that will work in your interests and why one should question any clause in a lease that concerns you.

Oh, for a straightforward lease like mine -- where the only clause is essentially 'I lease the place for 30 years' -- you suggest I should have paid a lawyer? My name is on the back of the chanote; all the stamps have been affixed; all the required fees have been paid. Paying a lawyer would have gotten me what?

My neighbor went the lease route also. Got a lawyer -- in the five figure arena. Got the same phraseology on the back of his chanote; and paid much higher fees, 'cause the stupid lawyer had her own cookie-cutter figures on what constituted a reasonable rent figure.

Jim, if that's the only thing you wanted then I agree that a lawyer shouldn't be/isn't needed. Many foreigners do this without lawyer, most of them are perfectly OK, very few one day wish they had paid for a lawyer. I am very slow reading legal text in Thai and only the hassle of not having to do that is for me worth the cost. A normal price in Bangkok is 10,000 bath, not that much actually

Edit: changed a few to very few

Edited September 16, 2010 by MikeyIdea

[MikeyIdea]

The legal rights of the lessor ( the owner) are very important as without his /her agreement no lease will be signed and lessor could well say " take it or leave it" and there is nothing you could do about it. The owner has the legal advantage at all times.

Whatt if you were to lease the land from a company? they may want you to pay rent on the lease or an upfront payment with a short term lease eg 5/10 years with an "option to renew" if both parties agree. If the owner does not agree there is not much you can do about it.

You can be sure that an owner will protect his /her own interests.

"The owner has the legal advantage at all times."

That goes directly against what my lawyer advised me regarding leases - the owner of the land is legally bound by the lease contract at all times was what he said, not that the owner has legal advantage at all times. This is for a lease registered at the land office and included at the back of the chanote of course. Everything is up to what is written in the lease contract

Your lawyer is absolutely right. Also for some reason many people think that Thais always are given the upper hand in a court case with a Westerner, and I suppose that such misconceptions about the Thai law are easily spread through a forum like this by people who are not used to read contract and law texts.

Totally agree with this. And it won't matter how much and how often we write that this perception is unfounded and wrong. People with no experience and knowledge in the area will still claim that they know or have heard the opposite, omitting that it was in a discussion around a bar stool perhaps...

[electau]

This website has the latest information on leases and property in general.

One should not read it in a literal sense abut as a guide.

http://www.sunbeltlegaladvisors.com/Thailand-30-Year-Lease.php

[LivinLOS]

Update from the O.P

Went to our local Land Office, Phtharam, Ratchaburi, this morning, with Thai wife. 8.15am arrival, 8.30am meeting.

Paperwork taken:

• chanote showing registration of ownership in wife's married (fahrang) name:
  
• wedding certificate: Hong Kong marriage in 1982, notarised by British Embassy in Bangkok, translated then notarised by Thai Department for Consular Affairs:
  
• daughter's Thai birth certificate:
  
• wife's will, drawn up at, and a copy of which is lodged at, the local amphur.
  

A very upbeat, positive meeting followed with the Director of the Local Land Office, a youngish guy, speaking good English, and with quite a sense of humour.

We put the scenario (in the original post) to him. He looked carefully through the paperwork we took.

He said that we could draw up a lease, but, his strong advice was that there was absolutely no need.

He confirmed that:

• Under Thai Law, we are legally married, had been so for 28 years, with a legally upholdable wedding certificate translated and notarised into Thai, which the Land Office would recognise and honour.
  
• The total area of my wife's land is marginally in excess of 1 Rai. The surname on the chanote is identical to that on our wedding certificate.
  
• Should my wife pre-decease me, my right live, without threat of disposition on this approx. 1 Rai of land, owned by my legal wife at the time of her death, would be upheld by our local Land Office.
  
• Simply put, should my wife die before me, I can live on the land for the rest of my life.
  No member of my family, my wife's family or our daughter's future family can displace me.
  Same goes for Government Officers acting under the guise of Land Office.
  

The conversation which followed related to my wife's will.

She leaves all property to me, unless I pre-decease her, and vice versa.

At the time of writing the will, she excluded all reference to land, simply because we believed it was impossible for me, fahrang, to inherit any land whatsoever. We assumed our daughter, (Thai National) would be the default inheritor of the land.

He clearly said we were wrong in this assumption, and that as the name on the wedding certificate matched that on the chanote, there would be no question of my right to continue to live on the land until my death. At that time, the land would pass to the ownership of our daughter, with or without a will. My will covers other assets that I hopefully will not have squandered during my senior years!

I then asked him what would be the situation if, as is likely in the Thai Civil Service, he were moved to a different post or office, and the new 'boss' ruled differently. He was quite emphatic:

"The law is the law. Nobody in any Land Office can arbitrarily re-write the law, and if they tried to do so, you would win any legal challenge".

He was particularly emphatic about the surnames on the marriage certificate and the chanote matching.

These two documents together, it seems, would be all that I would need to claim my right to live on the land which had been in my wife's ownership before she died.

With a brief exchange on English Premier League Football, and the antics of Wayne Rooney, we left after 45 minutes.

We are taking his advice, and will not pursue a lease.

I hope none of the circumstances in my original scenario materialise.

I will sleep more easily in my bed.

I am pleasantly re-assured by this new breed of helpful Thai Civil Servant.

So you have taken a Thais advice, to simply do nothing, as he assured you (verbally not in writing) that all will be fine and that you as a non Thai will be allowed to own, indefinitely no less, land in Thailand ??

If thats what you came away with, I have this really nice bridge in sale

Really.. while I have heard of the inheritance option a few times, its a very murky area of law that I wouldnt trust at all, let alone cos some nice Thai guy at the office told me it would be OK.

[jfchandler]

I guess the question I'd pose is this:

Maybe the guy at the land office is correct, and your right would be interpreted that way... in which case... no problem....

But, if the event he's wrong and it's not interpreted that way at some point in the future if your situation arises, then what??

What's the harm or downside in proceeding with the lease anyway, just in case his advice doesn't turn out to be correct?