Complicated Purchase-Children Own

[cheeryble]

Hi there

yes, I have an appointment with a lawyer but have to wait 3 days and in any case it's always worth asking here.....

To set the scene.

I'm trying to buy nearly a rai. Imagine if you will a pretty much equilateral triangle on a countrified village track. This is potentially a great shape as one can have a house in the back corner and get the benefit of a wide view across the road....and there is a very nice view......without buying a more land than necessary.

It turns out a large corner with a shack is not included. Problem is the "corner" is at the front side next to the road taking up over half the frontage.

Here's the problem.

The main titling is just fine.

The "front corner" piece of about 80 wah is in fact part of a larger chanoot of about 240 wah to the side.

I ask who owns it. They're all relatives of course. It was owned by someone who died. It has been left to three people. One older lady, living in the seller's house, and two children. I politely say I cannot buy the main piece unless I can buy all......and safely. I am told the children cannot sell until they are 20 (odd age?) and in fact on the back of the chanoot where the ownership and the liens go it says something like "cannot be transferred for ten years from xxxx 2551" (about 3 years ago, so 7 more years which maybe brings the youngest child up to 18 or 20 or 21. Or could it be a probate cannot be completed for ten years in any case, child or not....I don't think so?). This maybe says something about whether the execution has partially taken place, or attempted to be. Maybe something has happened.

After first saying they cannot sell the corner it's not possible, they have become perfectly helpful and would like to enable it.

For my side I need to be safe in my "ownership" of the corner through a nominee with usufruct or whatever, and I also emphatically want no hindrances if I ever come to sell.

So whilst the land dept note says they cannot sell, is there some system of legal guardianship where someone can sign a contract on their behalf which can be an encumbrance recorded on the chanoot. It seems to me that if a child needed funds desperately for education or living or medical expenses then it would be a strange thing is there wasn't a legal way to enable it somehow. They could "starve in their plenty" otherwise.

thanks

Edited June 1, 2011 by cheeryble

[Mario2008]

property of children is under giardianship of the parents. For selling some property, like the sale of land, the parents must seek permisison from the Thai courts.

This could be the problem, but it is also possible that the will of the deceased states that the land cannot be saled till the children reach majority or something like that. Than you might have a bigger problem.

[MikeyIdea]

20 is the age of majority in Thailand (not 18). I just checked my young daughters chanote, it says nothing more than that she is the owner. If the actual chanote has the wording you say, then there should be something more than just underage ownership

As Mario2008 says, property is under court supervision. It must be in the best interest of the child for court to allow to sell, not easy but possible, but I doubt a court would interfere with a will or wish of the previous owner easily. Guardians can sign max 3 year lease on the land, any more than that and it must go to juvenile court first

Edited June 1, 2011 by MikeyIdea

[ESB7]

property of children is under giardianship of the parents. For selling some property, like the sale of land, the parents must seek permisison from the Thai courts.

This could be the problem, but it is also possible that the will of the deceased states that the land cannot be saled till the children reach majority or something like that. Than you might have a bigger problem.

Looks like your view and frontage will be spoilt for the forseeable future......plenty land for sale without any problems., look elsewhere

[InterestedObserver]

As said, you have two problems:

1. The land cannot be transferred for 10 years from xxxx 2551, I suspect the title deed (Chanote) was recently upgraded from possessory rights land.

2. If the minor children own the land then they will be under court supervision for all things legal concerning the land. Whose name is listed on the Chanote as landowner, the children?

Ideally you would make a sales agreement (contract) with the landowner whose name is listed on the Chanote for transfer of a specified piece of the land on xxxx 2561 and register the encumbrance on the back of the Chanote.

Edited June 1, 2011 by InterestedObserver

[cheeryble]

Thanks for all the interest......I have to reply over two posts.

As said, you have two problems:

1. The land cannot be transferred for 10 years from xxxx 2551, I suspect the title deed (Chanote) was recently upgraded from possessory rights land.

2. If the minor children own the land then they will be under court supervision for all things legal concerning the land. Whose name is listed on the Chanote as landowner, the children?

Ideally you would make a sales agreement (contract) with the landowner whose name is listed on the Chanote for transfer of a specified piece of the land on xxxx 2561 and register the encumbrance on the back of the Chanote.

Very good info thanks!

it is also possible that the will of the deceased states that the land cannot be saled till the children reach majority or something like that.

Indeed I must find out.

20 is the age of majority in Thailand (not 18). I just checked my young daughters chanote, it says nothing more than that she is the owner. If the actual chanote has the wording you say, then there should be something more than just underage ownership

Indeed it suggests something eh?

Edited June 1, 2011 by cheeryble

[cheeryble]

Looks like your view and frontage will be spoilt for the forseeable future......plenty land for sale without any problems., look elsewhere

I have reasons why I think it is a little gem. It's worth a bit of effort to check.

1. The land cannot be transferred for 10 years from xxxx 2551, I suspect the title deed (Chanote) was recently upgraded from possessory rights land.

Not what i want to hear but yes it sounds possible.

To answer you next question...

Whose name is listed on the Chanote as landowner, the children?

No on the front of the chanoot is the deceased's name, but no name on the back, perhaps as there has never been a transfer yet, on the back is just the thing about not transferring.

If someone gets the first chanoot registration is it not sellable in ten years regardless of children or anything else? I'd be surprised.

Thanks again for the great replies do stay tuned.

[InterestedObserver]

How are you going to make a deal with the "deceased" landowner for any of this land? The estate has to go through probate, which involves minor children, and then there is the 10 year ban on land transfer issue.

Edited June 1, 2011 by InterestedObserver

[cheeryble]

How are you going to make a deal with the "deceased" landowner for any of this land? The estate has to go through probate, which involves minor children, and then there is the 10 year ban on land transfer issue.

That's what I'm wondering.......if there's an inventive and safe way to do it all. Not only to own (or at least have a liened right to buy) but to be able to sell with reasonable ease (although one could possibly wait for the full sale of the corner for seven years).

Something has occurred to me as a legitimate reason why minors may have to wait for ownership. It may be because with ownership comes liability. One could imagine scenarios where one could be sued simply because say a tree fell from one's land and demolished a house. it may not be right to impose this ownership and liability on a minor. Just making it up as I go along but it seems sensible.

If I can work out a method using minimal time and minimal expense I shall leave it to the owner(s) to set it up for an easy conclusion. They are very keen for a sale.

cheers Cheeryble

Edited June 1, 2011 by cheeryble

[cheeryble]

Just woke up and something popped into my head.

I wonder if this wait for ten year thing may be because the land is not just a simple transfer. It is one piece to be divided up between three. Maybe they put it on hold because a minor would be incapable of negotiating or inputting about the way the land is divided. Too young to speak in their own interest.

This would seem entirely reasonable.

It would seem to me also that this would need to be overturnable in a court or panel setting in case of a particular reason of need, but that one would need to convince the officials there that it was definitely for the benefit of the child. That might not be the case in this case.

Hmmm....

[InterestedObserver]

There is a 10 year hold on ownership transfer, except by succession, of the land because the Title Deed document was recently upgraded, usually from possessory rights farm land. This has been reported by other posters on ThaiVisa and confirmed by the Land Code Amendment Act (No. 12). Probate Court will decide who gets what from the estate and the Land Department will chop up the land and issue new Title Deeds to those concerned. The heirs could express their wishes to the court.

[cheeryble]

There is a 10 year hold on ownership transfer, except by succession, of the land because the Title Deed document was recently upgraded, usually from possessory rights farm land. This has been reported by other posters on ThaiVisa and confirmed by the Land Code Amendment Act (No. 12). Probate Court will decide who gets what from the estate and the Land Department will chop up the land and issue new Title Deeds to those concerned. The heirs could express their wishes to the court.

Ah thankyou IO. From what I understand you to say there may be some hope that one could contract with the heirs, perhaps with the approval of the probate court. I'm guessing it couldn't be a "real" right recorded on the deed, which would reduce it's strength. This may not be the end of the world however, as the corner in question will unlikely be built on and a personal contract might be enough.

In fact there is also a little corner on the edge of the corner triangle (but surrounded by it and public track) which is not yet "chanooted" but I think that is a minor problem.

The whole thing's a bit of a stretch but I think still worth the lawyer visit I have later today.

Just to be clear.......when land first becomes chanoot is it never saleable for ten years, that would surprise me?

Thanks again for the advice!

Edited June 2, 2011 by cheeryble

[InterestedObserver]

Just to be clear.......when land first becomes chanoot is it never saleable for ten years, that would surprise me?

Nobody said that. When land is fast-tracked for upgrade, usually from possessory rights, the 10 year transfer prohibition will be placed on the Chanote to prevent profiteering. The normal sale/transfer of land is not restricted.

[cheeryble]

Just to be clear.......when land first becomes chanoot is it never saleable for ten years, that would surprise me?

Nobody said that. When land is fast-tracked for upgrade, usually from possessory rights, the 10 year transfer prohibition will be placed on the Chanote to prevent profiteering. The normal sale/transfer of land is not restricted.

Thanks IO

How would one get round the "cannot sell" note on the back of the chanoot?

I've been for a discussion about this now it was somewhat information overload, but seems I can register a real right, like a usufruct or a mortgage loan, against the chanoot, but not buy outright. This I believe is for reasons about the will. In fact there is no will so the administration goes to a 25yo daughter. But there is a written family agreement about the children and one adult getting it (there are other bits of land in the agreement), but the seller of the main lot thinks she can get the OK from the deceased's daughter to administer. This means she can do everythign but sell until the children in the agreement are of age it seems.....and possibly be bound by conditions on the chanoot.

So I'm wondering whether to buy the main lot outright and the corner on a usufruct or superficies, possibly without paying (they mentioned that and my gf says they have no urgent need of cash), with a contract (not real unfortunately) to buy the corner outright on a certain future date at a certain price. Worst case scenario is I have it for life, and if I want to sell I can pass a lease (I think?) on to a buyer. Maybe I can make my contract with the administrator to buy in future that it can be me or any nominee, like a future buyer if I wanted to sell? I would in any case retain about half the frontage and the corner lot is only about 70 wah so no skyscraper going there in future. Not perfect but hey you can go a long time without finding a good lot, years.

All thoughts very welcome I have to do this fast if I do it, i mean decide by tomorrow lunchtime.

Edited June 2, 2011 by cheeryble

[InterestedObserver]

You cannot do anything until there is a Chanote with the landowner's name other than the deceased. No agreement (contract) would be legal unless it can be registered on the back of the Chanote and for that you need the landowner's signature.

[cheeryble]

You cannot do anything until there is a Chanote with the landowner's name other than the deceased. No agreement (contract) would be legal unless it can be registered on the back of the Chanote and for that you need the landowner's signature.

That sounds at odds with what the lawyer said yesterday, but maybe not.

She said real rights can be registered, debt, superficies, etc, but she said not a sale.

She did her very best to be clear with me.....in fact started with "OK, clear your mind" but honestly it was difficult to catch every nuance and most had been in Thai which I'm average at. The main thrust was that a 27yo daughter of the deceased was the something-like-administrator or maybe automatic beneficiary as there was no will. However there is this family agreement which looks like it has been written by a lawyer and several pages. What was clear is that some process needed to be done whereby power to administer the estate was passed to the lady, now the matriarch of the family perhaps approaching 50, selling to me. Maybe what i didn't hear was that whoever she decides name will go on the chanoot as owner(s). Then maybe it can't be sold for either the land office prohibition on the back or because they are underage. but she seemd to be clear that the other rights I mentioned can be registered and made real.

They phoned my gf this morning to say that the 27yo has now agreed to the transfer of power, and mentioned a deposit.

I clearly told my gf yesterday to not enter any negotiating but simply to say we will simply leave it to the lawyer to tell us what to do. Naturally we won't pay a deposit until we have the problem title cleared up and also the extra-un-chanooted piece (small but right in the middle of the frontage next to the problem area) and it is all ready in a bundle. Saying we will simply follow the lawyer will not make me the bad-guy if I have to do things they don't like much such as no deposit yet or having to demand this or that. It may also help with the issue of expenses. We have not spoken of legal fees or land office fees and I told gf again to say we simply will let the lawyer tell us what is fair. Which she can, she has far more experience than me. So the seller can hardly say no to that, and if she does we can walk if we choose.

So some real progress. She has apparently put someone who was waiting off paying a deposit this morning since my positive answer. I asked gf why she didn't just take their money she said "She wants you for her neighbour, and she wants to be your maebaan in future."

Let's hope she doesn't change her mind when she hears no deposit yet!

Are you a lawyer or ex-lawyer Interested Observer?

Cheeryble

Edited June 3, 2011 by cheeryble

[InterestedObserver]

That sounds at odds with what the lawyer said yesterday, but maybe not.

She said real rights can be registered, debt, superficies, etc, but she said not a sale.

Did the lawyer venture an opinion as to how you can make a legal agreement (contract) with the dead landowner. It is questionable whether or not the estate administrator has legal authority to place a land rights encumbrance on the land before the heirs are appointed.

Edited June 3, 2011 by InterestedObserver

[cheeryble]

That sounds at odds with what the lawyer said yesterday, but maybe not.

She said real rights can be registered, debt, superficies, etc, but she said not a sale.

It is questionable whether or not the estate administrator has legal authority to place a land rights encumbrance on the land before the heirs are appointed.

You mean questionable in that you have a particular objection on a point of law, or questionable in that you're not sure how it would be enabled?

BTW I am just informed that the 27yo lady has not yet agreed to the seller becoming adminstrator (puchatgaan moradok). So, always dependent on your above objection, the seller needs to persuade her first. She has now asked a lawyer herself who says it might take two to three months.

She says if she gets permission can I pay a deposit on the main, no problem, titles. I can understand she wants to be safe, but I can't abandon my own security either. So I have replied if we have firm evidence of commitment to the whole deal we can meet with the lawyer to discuss deposit. I have in mind an MOI with an escrow deposit based on it. I would in fact like her to deposit an equal amount as I will have a considerable time investment, but doubt if this would swim ha-ha.

Edited June 3, 2011 by cheeryble

[InterestedObserver]

That sounds at odds with what the lawyer said yesterday, but maybe not.

She said real rights can be registered, debt, superficies, etc, but she said not a sale.

It is questionable whether or not the estate administrator has legal authority to place a land rights encumbrance on the land before the heirs are appointed.

You mean questionable in that you have a particular objection on a point of law, or questionable in that you're not sure how it would be enabled?

Both! The local Land Office needs to be consulted for their opinion on all of this since any agreement (contract) for long-term immovable property rights will need to be registered with them to be entered on the Chanote.

Edited June 3, 2011 by InterestedObserver

[cheeryble]

Hmmm thanks for your opinion on that the lawyer didn't mention it perhaps I must mention it to her if the seller accepts an escrow deposit and the time comes.

[InterestedObserver]

Hmmm thanks for your opinion on that the lawyer didn't mention it perhaps I must mention it to her if the seller accepts an escrow deposit and the time comes.

Did your lawyer mention anything about the Probate Court process, after all she failed to mention the Land Office requirements?

[cheeryble]

Hmmm thanks for your opinion on that the lawyer didn't mention it perhaps I must mention it to her if the seller accepts an escrow deposit and the time comes.

Did your lawyer mention anything about the Probate Court process, after all she failed to mention the Land Office requirements?

We hear that for the seller of the non-problem lots to also become adminstrator for the problem lot will take up to three months.

May I ask you again is there a contradiction to a point of law in the adminstrator enabling encumbrances on the chanoot? Or is it the practical business of the Land Dept accepting it?

Thanks

[InterestedObserver]

May I ask you again is there a contradiction to a point of law in the adminstrator enabling encumbrances on the chanoot? Or is it the practical business of the Land Dept accepting it?

Both! The administrator only has legal authority for the payment of estate debts and distribution of the estate to the heirs. Unless the estate needs money to pay creditors, which your girlfriend says they do not, the administrator cannot sell or otherwise place an encumbrance on the land. The Land Department will only deal with the legal heirs unless otherwise ordered by the Probate Court. You should be asking your lawyer these questions.

[cheeryble]

The administrator only has legal authority for the payment of estate debts and distribution of the estate to the heirs. Unless the estate needs money to pay creditors, which your girlfriend says they do not, the administrator cannot sell or otherwise place an encumbrance on the land.

Well that sounds like a definite contradiction. Do you by any chance have the source for that?

You should be asking your lawyer these questions.

Since I heard today that the puchatgan moradok agreed to pass on that power to the seller I have indeed messaged the lawyer asking for a meeting. Unfortunately in Thailand I have found it difficult to put complete faith in one opinion, even with professionals including medical and legal, and our little conversation at least helps me clarify my thinking and helps me list my problem areas.

Cheeryble

Edited June 4, 2011 by cheeryble

[InterestedObserver]

The administrator only has legal authority for the payment of estate debts and distribution of the estate to the heirs. Unless the estate needs money to pay creditors, which your girlfriend says they do not, the administrator cannot sell or otherwise place an encumbrance on the land.

Well that sounds like a definite contradiction. Do you by any chance have the source for that?

Civil and Commercial Code, Administration and Distribution of an Estate, Sections 1711 through 1755. You have stated the landowner died intestate (without a will).

[cheeryble]

You have stated the landowner died intestate (without a will).

I have, which means the offspring, the 27yo daughter, inherits.

Then we have the family agreement which presumably she's signed.

Anyway most likely, as above, the 27yo inherits and then presumably would enact the signed family agreement. In which case, and possibly bypassing her name being entered on the chanoot, she could sign it over to the lady wanting to divide and sell part of that lot to me. She can't have her name entered yet but perhaps can encumber? In effect she could then for example divide it (it's 3x bigger than just the corner bit I'm getting), sort me out with my bit then later divide for the kids and pay them their shares of my payment. So just conceivably the delay is for this to all go through.

Wait a minute......if this was the case she could just sell, whereas I'm told I can only get an encumbrance. Ah! maybe that's something to do with the ten year wait imposition on the chanoot.

I know, I'm just daydreaming here, all will be revealed as I have another lawyer meeting Monday.

Edited June 4, 2011 by cheeryble

[cheeryble]

Today I was assured by the lawyer that it is indeed possible for the adminstrator to encumber a chanoot as long as it is agreed by the heir, even when that heir's name is not yet on the chanoot.

Something came into my lawyer's head today. She said it may be possible, as I may only need the problem lot as attractive empty space, to put a servitude on the property. I have just looked up about servitude.....

http://www.thailandlawonline.com/Laws/real-property-rights-right-of-servitude.html#1387

.....it says one can have perpetual right of access but

".....servitude in Thailand has a broader use and can also put usage restrictions on a neighboring parcel of land such as building restrictions"

So I'm interested if one could have a perpetual right to a fishpond or a gardening plot or just a right to stop trees being planted or a house erected to take the view away.

All help gratefully received!

[InterestedObserver]

Certainly the legal heir(s), except a minor child, can cause an encumbrance to be entered on the Chanote. Nobody ever said they could not. But the local Land Office has to agree and the heir(s) have not yet been appointed by the Probate Court. Remember, the landowner died intestate.

[cheeryble]

Went to meet the land officer this evening to whom we happily had an introduction, he even saw us way out of hours.He had been primed, He had the big map all ready to work from.He said the two main chanoot lots from the seller are no problem.He said a small triangular lot which is right in the middle of the frontage is noted in the family agreement as "belonging" to the seller and will simply need final measurement and a wait of a month.As for the "problem" lot he said without any prompting that he recommended a "ti gep ti gin" which I believe is a usufruct. This belief was fortified by him saying it lasted a lifetime and by the fact that he said it would be registered on the chanoot. He said the first step was to get the. Daughter of the deceased, who we have been told will be helpful, to become official administrstor, puchatgaan moradok. About a month he said. Then they need to have the problem title split togive us the part we want. As that is completed, about another month, we can have the usufruct registered.

This seems straightforward if tedious.I now have two concerns:1. how to keep the seller on board. She really wants a deposit. I need to come up with something, a loan secured on the property or whatever.

2. How to ensure any contract (unregistered) we make to complete the sale in future and replace the usufruct is honoured.

Edited June 7, 2011 by cheeryble