Servitude-Rights To Use Land

[cheeryble]

I am opening a new thread to learn about servitude.

I am interested in a piece of land with full title which however I would not buy unless I can have some rights over a small neighbouring piece. My lawyer suggested that as I only require the neighbouring lot to be an attractive empty space, maybe as a pond or garden, it may be possible to use a servitude on the property. She frankly admitted she needed to look up the details. I have myself just looked up about it.....

http://www.thailandl...itude.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!

Edited June 6, 2011 by cheeryble

[cheeryble]

I've already found this:

"The right of servitude in Thailand can for example concern the right of way (access) via neighboring plots to a land plot that is surrounded by other plots of land. A servitude could also refer to the right to the use of a well, or restrict building on a neighboring plot of land".

Interesting though I also wonder what can be allowed under

"There are several purposes a right of servitude could be used and created for"

.....a fishpond? a regular pond?

.....a market garden? a regular garden?

.....exclusive access? (bear in mind this isn't daylight robbery I'd be paying good money for it )

Edited June 6, 2011 by cheeryble

[TPI]

Question? How would you go about justifying it? With a right of way the reason is obvious, but for a fish pond or a garden? And if you paid then why not take a 30 year lease? Your rights would be stronger, protected by law and you could pass it on as an asset if you fall of your perch earlier than you expect!

Just asking?

[cheeryble]

Question? How would you go about justifying it? With a right of way the reason is obvious, but for a fish pond or a garden? And if you paid then why not take a 30 year lease? Your rights would be stronger, protected by law and you could pass it on as an asset if you fall of your perch earlier than you expect!

Just asking?

Thanks for the interest!

This thread relates to another thread I started, but I wanted fresh input on the specific servitude aspect here.

The fact is this lot, next to a larger lot which I would build on but an essential part of a bundle, can't be fully signed over until a time limit has expired in a few years and possibly even until some minors reach age maybe 9 years.

That leaves me with a choice: refuse the whole deal, or do the best I can to secure this piece and also buy the fully titled rest of the bundle.

So as far as securing this piece a usufruct or superficies or lease is available (I'm told), but they are all of limited lifespan whereas a servitude is not, it is perpetual. What I have in mind is to maybe pay half the normal price for the servitude and at the same time do a contract to buy when the full sale can go through in future. Now as I see it a contract can only be personal not registered against the chanoot.....and a personal contract is much more breakable than a "real" right.

But this half price thing would tend to enable a future full sale without them reneging, because even if the land price has gone up, if I have an eternal right to maintain a pond or garden covering the land, it is essentially worth nothing to them.....unless they comply with the contract and sell fully.

As for justifying it.....that's why I'm here, to learn.

I don't know enough about servitude but it seems to me that a right such as a perpetual fishing right, or even just the right to a garden might be a good reason to invent servitudes if rights of way weren't needed too. It already seems a right to not have buildings there is allowed, in principle anyway. But as with everything in Thailand it's not only a question of law it's also selling the application to the land dept.

cheers

[Khun Jean]

Is it even possible to have a lease/servitude registered on the chanot, as there is a time limit within it can not be sold.

If you have to go a step lower and have a contract that is not registered on the chanot but is in fact between two people i would walk away from it right away as those contracts are really not worth anything over time.

[cheeryble]

Is it even possible to have a lease/servitude registered on the chanot, as there is a time limit within it can not be sold.

I am told by my lawyer the answer is yes if done by the administrator with the agreement of the heir.

If you have to go a step lower and have a contract that is not registered on the chanot but is in fact between two people i would walk away from it right away as those contracts are really not worth anything over time.

I tend to agree. This is a reason I'm interested in at least exploring the servitude as its a real right and perpetual.

Bear in mind even without this problem part of the land the main unproblematical lot still would have about 75% of the area and 50% of the frontage, so it would not be the end of the world to lose it. One would still have one's house behind and seomthing of a view. It's just that the area in question is important to the integrity of the whole, making a nice shape with perhaps 120 degree mountain view from a potential dwelling instead of being a bit narrowed at the front and potentially having a house there, albeit to one side, one day.

cheers

ps I'm thinking of living there long term but who knows and always important is the saleability of the whole bundle.

Edited June 7, 2011 by cheeryble

[quiksilva]

Giving up the right of development for instance means they are giving up an opportunity to maximise its potential value or realise income from the site.

Moreover granting these rights will also restrict its sales potential (nobody likes buying land titles with negative servitudes on them).

So given that owner will essentially be able to do nothing on this parcels, the owner would be well within his rights to charge you much more than 50% (I know I would).

So the flip side of this is why not buy/lease/usufruct it as you did on the rest of the site?

These established mechanisms give you much better rights to use property than a servitude, and will be more marketable package in the long run.

Edited June 8, 2011 by quiksilva

[cheeryble]

Quicksilva thankyou for your expert interest

Giving up the right of development for instance means they are giving up an opportunity to maximise its potential value or realise income from the site.

Moreover granting these rights will also restrict its sales potential (nobody likes buying land titles with negative servitudes on them).

So given that owner will essentially be able to do nothing on this parcels, the owner would be well within his rights to charge you much more than 50% (I know I would).

I think you're right, but will explain below.

So the flip side of this is why not buy/lease/usufruct it as you did on the rest of the site?

The problem with this problem corner title is it has a ten year restriction on it, which ends in 2561. I think this is because of a title upgrade. This means I cannot buy outright......yet. So it seems the best I can do is a usufruct or lease or superficies for my lifetime.

But I would like to make it as sellable as possible if I want to leave, and also for my heirs if I stay and die (I probably will die sometime ). Now my first thought was I can have a usufruct and I can also have a contract to buy at a future date at a fixed price (maybe adding inflation to be fair). The problem is if I sell in future and the price is triple they may not like to fulfil the unregistered contract, and I would be in the position of suing my neighbour (the seller), whose relatives live on the other side. A bit like a cowboy surrounded by Indians!

So I need some leverage.

I thought if I could get a servitude on the problem lot it would be worth little or nothing to them unless I fulfil the contract......and there would be every advantage for me in fulfilling the buy contract, not the case with them.

So perhaps rather than me trusting them to fulfil they could trust me. Maybe the future buy could even be registered against me on one of the non-problem titles I buy so they are secure?

Of course they can refuse, but she really wants to sell the first two lots (plus a small triangle which is just starting to be registered according to the land office yesterday, and she has considerable sway over the heir and soon-to-be administrator of the problem lot. So perhaps she could pay part of her money towards the intestate estate, the rest to be paid when I get the full sale.

What i also have in mind if that doesn't work is to ask for BOTH a usufruct AND a servitude on the problem area.

I asked at the land office yesterday what was possible under a servitude.......eternal rights to a pond/non-building/garden etc.....but he (probably not having had this situation before) just said a usufruct is enough. He didn't seem to say NO you can 't have both usufruct and servitude but he didn't say yes either and I didn't want to press him.

Quicksilva do you have any experience of what is possible? I would be content with just nice looking area of vegetation or pond which I have the sole right to look after, but would prefer the right to build in future if I wish.

(I note in an example usufruct I saw on the net it restricts rights to build to non-residential for instance).

Any advice from yourself would be greatly appreciated!

Cheeryble

ps sub question:

Is it true if I get a usufruct I can lease onward for 30 years to a potential buyer? I presume I can't pass on a usufruct.

Edited June 8, 2011 by cheeryble

[quiksilva]

I would be content with just nice looking area of vegetation or pond which I have the sole right to look after, but would prefer the right to build in future if I wish.

You could do both, but I think it would be redundant to do so. Keep it simple, because most of what you really want can be accomplished by usufruct (or lease), both of which are more appropriate for what you plan to do with it.

Servitudes may not give you the flexibility that you will require over a period of time, as they tend to be quite specific in what they cover.

I suggest that you check out http://www.samuiforsale.com/Real-Rights/ who have put together an excellent guide to usufructs and servitudes etc.

Ps note that they have the following to say about leasing under the right of usufruct:

...a foreign usufructuary can only rent out the property under usufruct for periods not exceeding 3 years at the time.

A lease with an option to purchase (which of course is a contractual obligation not a lease right) exercisable say in ten years time could provide a better solution (10 years isn't that long to wait.. well.. unless the Lessor is considerably advanced in years or on the verge of bankruptcy)

Edited June 9, 2011 by quiksilva

[cheeryble]

Thankyou for the advice and the link Quicksilva.

I probably will do what you say about usufruct only.

For the sake of clarity I will describe the lots, which of course are all contiguous, briefly.

1 a fully titled lot

2 a fully titled lot

3 a small untitled triangle between 2 and 4 and the public track, about 20wah right in the middle of the frontage which the seller apparently has common usage rights to.

4 the corner lot of about 70 wah bordering 3 and fronting 2 which is as yet intestate and also cannot be transferred "for ten years" which is 2561. It is more than twice larger than what I require.

My lawyer today was in full accord on a plan, which is this:

Given the unsettled situation no normal deposit but to show commitment offer to pay for their legal preparation expenses at this stage (appointment of daughter of deceased as administrator of will....possible division of problem lot.....etc). This to be paid on signing an MOI. If absolutely necessary make a larger loan to keep them onside but only if registered against a full title.

It turns out that the daughter of the deceased is not to inherit the problem lot 4. Under a signed family agreement when it is available and the three heirs are all of age it will go to one older relative and two minors. Very importantly the two minors are the 11 and 15yo daughters of the lady seller of the main unproblematical area. As the part of the problem lot i require is only about 40% of the whole title this means the older lady could be getting her third outside of what I want. (in fact I think it is under the neighbouring house they all live in!)

Next.

When the whole package is ready:

Buy lots 1 and 2.

Get a written transfer of all rights to the triangle 3 (land office says OK) and pay.

Obtain usufruct for lot 4 and contract to buy at a fixed price as soon as it is legally available. Pay 10% imediately (remembering it is essentially owned by the young daughters of the owner of 1 and 2 and those larger main lots will not be sold unless the whole package happens.) and 90% on completion, which will push them to fulfil their agreement to sell when able.

This only leaves pricing.

My lawyer suggests that lot 3 as it's not registered should be about 50% of the wah price of 1 and 2.

She says it would crazy to pay anything like a full wah price for 4 for reasons of risk obvious above, and because one doesn't get ownership for 7 years. I was kind of surprised, but I thought hey she knows how these things work. I asked how much. She suggested starting by offering a quarter of wah price of 1 an 2!!

Any comments gratefully received.....I am particularly interested in any binding method of ensuring their commitment for the wait to finishing. Also my lawyer thought it might be possible to bypass the wait for normal appointment of puchatgaan moradok (3 months ish) by having all the interested parties appear together before the authorities speaking in total agreement. Heard of this one?

Cheeryble

Edited June 9, 2011 by cheeryble

[cheeryble]

Still hoping for constructive criticism (or applause ) of my plan above.

We may get signed in a few days so all advice welcome.

[Tanaka]

Thankyou for the advice and the link Quicksilva.

I probably will do what you say about usufruct only.

For the sake of clarity I will describe the lots, which of course are all contiguous, briefly.

1 a fully titled lot

2 a fully titled lot

3 a small untitled triangle between 2 and 4 and the public track, about 20wah right in the middle of the frontage which the seller apparently has common usage rights to.

4 the corner lot of about 70 wah bordering 3 and fronting 2 which is as yet intestate and also cannot be transferred "for ten years" which is 2561. It is more than twice larger than what I require.

My lawyer today was in full accord on a plan, which is this:

Given the unsettled situation no normal deposit but to show commitment offer to pay for their legal preparation expenses at this stage (appointment of daughter of deceased as administrator of will....possible division of problem lot.....etc). This to be paid on signing an MOI. If absolutely necessary make a larger loan to keep them onside but only if registered against a full title.

It turns out that the daughter of the deceased is not to inherit the problem lot 4. Under a signed family agreement when it is available and the three heirs are all of age it will go to one older relative and two minors. Very importantly the two minors are the 11 and 15yo daughters of the lady seller of the main unproblematical area. As the part of the problem lot i require is only about 40% of the whole title this means the older lady could be getting her third outside of what I want. (in fact I think it is under the neighbouring house they all live in!)

Next.

When the whole package is ready:

Buy lots 1 and 2.

Get a written transfer of all rights to the triangle 3 (land office says OK) and pay.

Obtain usufruct for lot 4 and contract to buy at a fixed price as soon as it is legally available. Pay 10% imediately (remembering it is essentially owned by the young daughters of the owner of 1 and 2 and those larger main lots will not be sold unless the whole package happens.) and 90% on completion, which will push them to fulfil their agreement to sell when able.

This only leaves pricing.

My lawyer suggests that lot 3 as it's not registered should be about 50% of the wah price of 1 and 2.

She says it would crazy to pay anything like a full wah price for 4 for reasons of risk obvious above, and because one doesn't get ownership for 7 years. I was kind of surprised, but I thought hey she knows how these things work. I asked how much. She suggested starting by offering a quarter of wah price of 1 an 2!!

Any comments gratefully received.....I am particularly interested in any binding method of ensuring their commitment for the wait to finishing. Also my lawyer thought it might be possible to bypass the wait for normal appointment of puchatgaan moradok (3 months ish) by having all the interested parties appear together before the authorities speaking in total agreement. Heard of this one?

Cheeryble

It might be easier if the location was known but I'll give some opinion. You said a usufruct is limited in time. Not necessarily. Normally it is written as valid as long as you live. It is possible to restrict it in time if you wish. The 3 months wait you mention only applies to properties without proper deeds, i.e. Chanot. With the way things are done here, I would not pay money for something I cannot have. Like you say you will pay for land you cannot use yet. You have no guarantee that they will honour the contract when times come. TIT. Also, as you well know, you cannot own any land yourself so is it your wife who is buyer and you want her to grant you a usufruct on her new property?

A good rule in Thailand is to never buy land without Chanot or, at least Nor Sor Sam Kor.

I hope I understood you correctly. Correct me if I did not.

Also, if you have a usufruct and lease the land out, it can be for more than 3 years but it must be reported to the land office.

Edited June 12, 2011 by Tanaka