Foreign Mother Buying Land In Name Of Thai Child

[g00dgirl]

This thread should be used to discuss the possibility of buying land in an underage Thai childs name, where the foreign mother has sole custody rights due to being unmarried.

So this is different from most cases where a foreign father would like to put land in his Thai childs name, while he might only have shared custody with the mother.

I have asked several lawyers so far and some say a Thai child can not buy land until 20 years of age, but some Thai lawyers on the other hand told me that a Thai child can buy land and that the parent would need to sign on the childs behalf. Normally a Thai person would need to sign, but in the case where the sole custody is with the foreigner, it might be possible for the foreigner to sign.

It also seemed to be important for some reason that the Thai child has a Thai birth certificate.

The downside in any case is the difficulty to sell the land until the child turns 20, only with court approval in the interest of the child. But it would be no problem to rent out the house.

The setup was proposed like this:

If buying only land, the Thai child can buy it and the foreign mother can sign. A lifetime usufruct can be registered on the land title with the beneficiary being the mother, as added security and any building permit and house can be in the foreign mothers name.

In addition a will can be set up to pass on the land (under 1 Rai) to the foreign mother in case something happens to the child. (Somewhere else I read that a child under 15 can not make a will, so I would like to double-check that again.)

Are there any other eventualities to consider?

Do you know any Thai laws that would prevent this from being legal?

Something I would like to double check, how will the usufruct be signed between the child and the foreign mother, if the mother signs on behalf of the child, then both signatures are from one person? Or is there nothing to be signed for a usufruct, just pay for the entry in the title deed?

Same goes for the building permit / house registration, if the mother signs on behalf of the child, both signatures are from the mother, is this possible?

[Mario2008]

A Thai child can hold propety, regardless of age. Under the age of 21 the property is under the care of the legal guardian (you), who is under supervision of the courts.

That the chils is a minor means that you act on the childs behalf and for certian actions, like the selling of the land, you will need prior permission from the Thai court. (As it isn't your property and a judge will want to be sure your actions are indeed in the interest of the child).

[ballbreaker]

The papers for a usufruct must be signed by the grantor and grantee. Since you are not Thai any matters concerning the land must be approved by the court (Commercial and Civil code of Thailand Section 1574). If court does approve they will probably grant usufruct only till child reaches sui juris.

Should the child die you would most likely be granted ownership but would have 1 year to sell or transfer ownership to Thai person because foreigners cannot own land.

Edited July 15, 2011 by ballbreaker

[g00dgirl]

Should the child die you would most likely be granted ownership but would have 1 year to sell or transfer ownership to Thai person because foreigners cannot own land.

I heard (and lawyer confirmed) that if I inherit land as a foreigner, it is possible to keep 1 Rai or less of land in my name, even beyond 1 year, if I am using it for residential purposes and after getting permission from somewhere (ministry of foreign affairs if I remember correctly).

[ballbreaker]

Should the child die you would most likely be granted ownership but would have 1 year to sell or transfer ownership to Thai person because foreigners cannot own land.

I heard (and lawyer confirmed) that if I inherit land as a foreigner, it is possible to keep 1 Rai or less of land in my name, even beyond 1 year, if I am using it for residential purposes and after getting permission from somewhere (ministry of foreign affairs if I remember correctly).

Two lawyers I talk with say it will not be approved.

Below (thailawonline.com) pretty much sums it up. It talks about inheritance from spouse but I assume same applies if from child. You can check web site for more info. I asked these question of two lawyers before wife made her will.

Inheritance of land by foreigners

Foreigners are not allowed to own land in Thailand and foreigners cannot inherit ownership in land in Thailand. Foreigners married to a Thai national could be confused by the wording in section 93 of the Land Code Act: 'A foreigner who acquires land by inheritance as statutory heir can have an ownership in such land upon a permission of the Minister of Interior. However, the total plots of land shall not be exceeding of those specified in Section 87'.

Section 93 (upon permission of the Minister of Interior) must be read only in relation to section 86 of the Land Code Act, foreign ownership under a treaty, and not in relation to foreigners inheriting land from their Thai spouse as a statutory heir. The over 50- year old section refers to statutory heirs of foreigners who acquired land by virtue of the provisions of a treaty (section 86). The last treaty was terminated in 1970 and there is currently no treaty with any country allowing the Minister of interior to grant permission to foreigners to acquire and own land in the Kingdom of Thailand.

A foreigner married to a Thai national can inherit land, but will not be given permission by the Minister of Interior to register ownership. Therefore, any foreigner who inherits land as a statutory must dispose of the land within a period not less than 6 months and up to 1 year. If the foreigner fails to dispose of the land the Director-General of the Land Department is authorized to dispose of the land and retain a fee of 5% of the sale price before any deductions or taxes.

Note that it is only since 1999 (ministerial regulation) that a Thai national married to a foreigner is allowed to own land after is made sure that the foreigner does not obtain ownership rights in the land (letter of confirmation). Also upon death of the Thai spouse the foreigner will not be give permission to register ownership over land.

I think your best option would be buy the land in name of child. Since child is underage and cannot manage his own affairs you would petition the court to approve usufruct in your name good till your end of life. Regardless of who may inherit the property you have total possession until your death.

Edited July 16, 2011 by ballbreaker

[Mario2008]

Should the child die you would most likely be granted ownership but would have 1 year to sell or transfer ownership to Thai person because foreigners cannot own land.

I heard (and lawyer confirmed) that if I inherit land as a foreigner, it is possible to keep 1 Rai or less of land in my name, even beyond 1 year, if I am using it for residential purposes and after getting permission from somewhere (ministry of foreign affairs if I remember correctly).

That is correct, but like you say yourself there is a catch. It must be approved by the minister.

Edit: above text quoted by ballbreaker might need some editing. The law says different, but the reallity is that probably no-one has recieved approval from the minister.

[Mario2008]

The only way to establish a usefruct is if you donate the land the land to your child, with the usefruct on it. If you do it later, you need court permisison and will be refused as there is no benefit to the child (unless you agree to pay your child for the usefruct).

The fact if you are Thai or not is irrelevant. The only relevance is that the law states that for this kind of actions a guardian (Thai or not) must obtain prior court permisison, to have the court check if the proposed contract is in the best interest of the child.

[g00dgirl]

It talks about inheritance from spouse but I assume same applies if from child.

There might be a difference between inheritance from spouse and from child, because it seems to be important that the beneficiary is a statutory heir by being the parent.

Under Thai inheritance laws' date=' which apply when there is no will, this generally means that the assets will be distributed amongst the statutory heirs. Under section 1629 of the Civil and Commercial Code of Thailand there are 6 classes of statutory heirs and they are entitled to inherit in the following order:

1. descendants
   
2. parents
   
3. brothers and sisters of full blood
   
4. brothers and sisters of half blood
   
5. grandparents
   
6. uncles and aunts
   
7. The surviving spouse is a statutory heir, subject to the special provisions of Section 1635 Civil and Commercial Code.
   

[g00dgirl]

The only way to establish a usefruct is if you donate the land the land to your child, with the usefruct on it. If you do it later, you need court permisison and will be refused as there is no benefit to the child (unless you agree to pay your child for the usefruct).

The fact if you are Thai or not is irrelevant. The only relevance is that the law states that for this kind of actions a guardian (Thai or not) must obtain prior court permisison, to have the court check if the proposed contract is in the best interest of the child.

The lawfirm might be able to add the usufruct before the land transfer is done if the seller agrees and understands the process?

So for getting a building permit and house registration later, again a court approval might be needed and is there any reason why that might be refused?

[Mario2008]

A Thai court looks after the interest of the child, and if you want to put a usefruct on the land of your child (the owner) it will ask what is the benefit for the child in this?

Only putting usefruct on it would harm the intrest of the child (the property is less worth with a usefruct on it), if there is enough financial compesention to the child they might allow it.

I'm not sure if the seller needs to co-operate and how you give your child land with a usefruct already on it. A lawyer should be able to tell you that and arrange for it.

[g00dgirl]

I should get more details from the lawyer after the holiday / weekend. I will ask about the issues we came up with in detail to see if I can get those resolved.