Usufruct , Have Anyone Done That?

[avantgarde35]

Hi,

I'm planning to buy a land in my wife's name and use "usufruct"

Have anyone done that?

Well , as I've searched in the forum I know that "BangsaenBob" did that.

But I also want to know about the process , and is that possible that the land department would deny to do that for us?

Thanks

[ProThaiExpat]

Usufruct is a term which I first encountered in Thaivisa and it was implied in a thread that it can be found in Thai law, although I can't confirm that.

Does anyone know what country, other than Thailand, uses this term to describe a property right?

The dictionary definition appears to be that usufruct is a broad right to possession of property and use without waste.

Since this meaning is the same as that for a lease, except in a lease the term is part of the definition.

Does usufruct contain a term certain in its definition?

Can anyone distinguish usufruct from a lease which implies a term certain and another form of "estate" that carries other connotations, such as a "life estate", which in Thailand is a lease for a term, the length of which is etermined by the life of the lessee.

Does a usufruct cover movable property such as a house or is it limited to land possession?

The best I can determine from what my lawyer told me, I have a "lease" for my life, a "life estate" in my view, (land and house) but from what I have learned since, it is lmiited to 30 years by Thai law, no matter how long I live?

He never mentioned usufruct, but then again, he was not a very good lawyer in my view.

[Butterfly]

Hi,

I'm planning to buy a land in my wife's name and use "usufruct"

Have anyone done that?

Well , as I've searched in the forum I know that "BangsaenBob" did that.

But I also want to know about the process , and is that possible that the land department would deny to do that for us?

Thanks

<{POST_SNAPBACK}>

It doesn't seem to work. I asked the Land Department when I visited them last month and they looked at me like I was some kind of martian. Maybe you need to come with a lawyer and have him explain to them what you want. But I wouldn't bet on it. Even if this is legal, land officials might feel unconfortable to put a farang name on a land title. They will probably find stubborn excuses for not doing it.

Edited September 8, 2005 by Butterfly

[Sumitr Man]

CIVIL AND COMMERCIAL CODE OF THAILAND

TITLE VII: USUFRUCT

Section 1417

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 quary.

Section 1418

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

If no time has been fixed, it is presumed that the usufruct is for the life of the usfructuary.

If it is created for a period of time, the provisions of Section 1403 paragraph 3** shall apply mutatis mutandis.

In any case the usufuct 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 usufruct revives to that extent.

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

The same rules apply mutatis 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 the usufruct comes to an end, the usufructuary must return the property to the owner.

The usufructuary is liable for the destruction or depreciation in value of the property, unless he proves that the damage was not the cause of his own fault.

He must replace anything which he has wrongfully consumed.

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

Section 1421

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

Section 1422

Unless otherwise provided in the act 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 directly.

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 usufructary 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 maintenace and petty repairs.

If important repairs or measures are necessary for the preservation of the property, the usufructuary must forthwith inform the owner thereof and permit them to be carried out.  In case of default by the owner, the usufructuary 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 may realize part of the property unless the usufructuary is willing to advance the necessary funds without charging interest.

Section 1426

The usufructary shall, for the duration of the usufruct, 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 usufructuary 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 his usufruct.

Section 1428

No action by the owner against the usufructuary or his transferee in connection with the usufruct or vice versa may be entered later than 1 year after the usufruct comes to an end; but in any action by the owner who could not have known of the end of the usufruct, the prescription of 1 year shall run from the time when he knew or ought to have know of it.

-----

END

*

Section 139

Immovable property denotes land and things fixed permanently to land or forming a body therewith.  It includes real rights connected with land or things fixed to or forming a body with the land.

**

If it is granted for a period of time, the period may not exceed 30 year; if a longer period is stipulated, it shall be reduced to 30 years.  The grant may be renewed for a period not exceeding 30 years from the time of renewal.

SM

Sorry if there are any typos

Edited September 8, 2005 by Sumitr Man

[Dragonman]

Usufruct is a term which I first encountered in Thaivisa and it was implied in a thread that it can be found in Thai law, although I can't confirm that.

Does anyone know what country, other than Thailand, uses this term to describe a property right?

The dictionary definition appears to be that usufruct is a broad right to possession of  property and use without waste.

Since this meaning is the same as that for a lease, except in a lease the term is part of the definition.

Does usufruct contain a term certain in its definition?

Can anyone distinguish usufruct from a lease which implies a term certain and another form of "estate" that carries other connotations, such as a "life estate", which in Thailand is a lease for a term, the length of which is etermined by the life of the lessee.

Does a usufruct cover movable property such as a house or is it limited to land possession?

The best I can determine from what my lawyer told me, I have a "lease" for my life, a "life estate" in my view, (land and house) but from what I have learned since, it is lmiited to 30 years by Thai law, no matter how long I live?

He never mentioned usufruct, but then again, he was  not a very good lawyer in my view.

<{POST_SNAPBACK}>

Following on from SM's post re.Civil Code, you will see I have addressed the issue quickly in my post on thread "Buying a townhouse in Bangkok".

Usufruct is used a lot in the States, but other legal means are used generally in Uk. The 30 year limit is determined by Thai Civil Code and varies from Country to Country. 90 years is not unheard of in the States.

The advantage over a lease is that it can be sold in Thailand. Another seeming annomaly in thai law.

Now the question regarding movable property is where the case for nullifying any usufruct comes in, as it was never meant for use in house purchases.Some western lawyers have said it is OK, I'll sit on the fence. Is the house "fixed" to the land. Everyone can decide for themselves.