Transfer Land And House From Thai Wife To Me?

[Cabrinha]

Of course I need to get proper legal advice, but I'm guessing some people on here may have been in a similar situation and may be able to offer me some advice.

I put a reservation on a house in a project before I met my wife. I was buying the house with the land leased for 30 years. I paid for the house fully before we were married. Shortly after the house was completed I decided (stupidly) it was safer to have the land in my wifes name than in the name of a shady foreign land owners company. The land owner agreed to transfer the land to my wife, and so this was done. The lease was first cancelled. So now the land is in my wifes name and I have no lease and no usurfruct or anything else.

We have decided to divorce and my wife has told me that she is prepared to transfer the house (and land) back to me. I'm just wondering does anyone have advice on what is the best way to go about it. Without having yet gotten proper legal advice, my guess is that I have the following options:

1. Setup a company in which the land can be transferred to (and take all the usual risks that go with this practice)
2. Leave the land in my wifes name but get a lease from her.
3. Get a usurfruct where I can have use of the house for life.

I am not close to retirement and I expect there is every chance that I will want to try and sell the house at some point in the future.

If I leave the land in my wifes name, can I setup a contract with her which states that when I want to sell the house (and land), she must transfer the land and house to any person/company which I desire for a small nominal fee? Would such a contract be legal if she is to agree to it?

thanks in advance..

C

[stgrhe]

You have a rather tricky situation here.

Firstly, the land and the house belongs to you since you owned it before you got married. This property is thus Sin Suan Tua, i.e. yours only, this provided the deed transfer was completed while married and no prenuptial agreements were signed. However, since you not a Thai citizen you cannot own land. There are some circumstances under which a foreigner can own land, but they are extremely rare. Hence, we have two contradictory situations here determined by different laws, the Civil & Commercial Code and the Property Code respectably. If you had kept the lease this case would have been straight forward.

Personally I would rule out the company route simply because it is illegal. If you are on good terms with your wife you might let here keep her name on the deed since that will save you from the transfer costs. Else I recommend you find another Thai, if you have a trustworthy friend that is, and let that person hold the title.

Whether the go for a lease or a usufruct depends on your age and whether you have any heirs. While a lease's maximum in thirty year the usufruct can be signed for live. However a lease right can, if that condition is stated on the deed, be inherited while a usufruct cannot. There is a third alternative, the superficies, which also can be registered for life. However, a superficies has the advantage over a usufruct right since it clearly states that the holder has the right to build a dwelling on the land. Since you might consider splitting the ownership of the house, you can own the house yourself, a suferficies might be the preferred choice.

Splitting the ownership of the house from the land is doable also when the house exists although the process is a bit more complicated and takes a bit of time to complete.

I suggest you seek a professional advice on the subject matter and I would recommend Isaan Lawyers even if you do not live in Nakhon Ratchasima. Isaan Lawyers are a forum sponsor and Sebastien, a Canadian lawyer from Quebec, is very good. Isaan Lawyer do also have moderate charges.

Good luck to you!

[OlafStapleton]

I don't believe you can make enforceable contract with wife in Thailand until 1 year after divorce.

[cheeryble]

If I leave the land in my wifes name, can I setup a contract with her which states that when I want to sell the house (and land), she must transfer the land and house to any person/company which I desire for a small nominal fee?

I think that would be invalid as it is tantamount to ownership.As she has been agreeable enough to still be willing to transfer the land you might consider keeping her as nominee with a superficies or whatever as she sounds not overemotional about things.

If serious money is demanded rather than just takeover on your death or a reasonable payment if you sell you might be able to rebutt it with a threat that the house was bought illegally, maybe giving you 1 year to sell it after a slap on the wrist.

Edited August 3, 2011 by cheeryble