Urgent Cannot Register Encumbrance Against Business On Premises?

[cheeryble]

Hi

this follows from a couple of threads about "Bar opens next door".....but it's wider (and I need a quick answer) so I start a new topic.

I refused to fulfil a proposed land buy because the sellers suddenly built a "restaurant" on land next door (of which a cooperative relative is the administrator) within a metre of the one rai they are selling me.......and they used the words karaoke and bar when questioned.

When I said "no way" they panicked and said they would contract not to open it.

I took a few days to think and decided if there could be some strong protection then I would go ahead.

I suggested a lien to my lawyer.

(I think I used the wrong word.....believe lien's to do with money, I think I mean an encumbrance)

Anyway my lawyer just wrote back and seems to be saying it's not possible to register this (she actually said "there is no lien" and it would have to be a personal contract.

Now my last place in Britain I distinctly remember on the deeds my property was banned from being a confectioner, a baker, and a couple of other things I can't remember....in perpetuity. This had been registered when it was built in the 1800s.

So is it different here? No encumbrances?

I don't get it............it is surely such a useful tool of law.

IF she is right can anyone suggest what could strengthen a personal contract?

My friend intelligently suggests that to a village person a contract done by a lawyer is probably just as meaningful as a registered encumbrance.....but it would not be so attractive if I ever sold.

But it may be an option, and also I believe they put fixed fines on breaking agreements. An onerous fine of could do the trick....or could it?

Thanks and have meeting Wednesday afternoon so advice ASAP gratefully received!

Cheeryble

[Benjie]

Who's going to enforce it?

I'd say not a chance if they have proper ownership of the land next door they can do what they want with it.

[kwonitoy]

Stop thinking like your in England.

If you own the land you can control it, if you don't own the land what right do you have to say how it's used? Verbale agreements mean less than nothing here.

Buy it, or live with what happens next door

[cheeryble]

"I'd say not a chance if they have proper ownership of the land next door they can do what they want with it."

Those reading who have leases, usufructs, superficies, servitudes, and loans registered against a title will be concerned you think encumbrances have no power.

You have a point though about enforcement. No-one wants to take legal action, but these are not gangsters or even business people, they're two ladies.

I've explained to them they can have whatever they want next door. But I also have the option to not buy....and they really want to sell.

"If you own the land you can control it, if you don't own the land what right do you have to say how it's used? Verbale agreements mean less than nothing here."

My questions are about written agreements not verbal.

Specifically I'd like to double-check if an encumbrance for "no business" or "residential only" or something of the sort is possible.

I thought these sort of things were pretty much universal as they are so useful.

I'm here to learn and be pre-armed with knowledge.

When my lawyer says a registered encumbrance is not possible perhaps she's talking about an encumbrance against noise, not for say residential only.

Of course I shall ask her this afternoon, but as they say "be prepared".

Edited September 21, 2011 by cheeryble

[Benjie]

What you are talking about isn't a superficie, usufruct etc... though is it.

You are saying if I buy Plot X from you then you must not do this list of things with Plot Y, The only thing that would cover that would be a contract between the two parties.

[cheeryble]

Lawyer says it's a case of no matter what the law says the Land Office has to be used to it.

On her recommendation, if the seller still agrees, we shall make a personal contract with a penalty agreed.

I said what if they don't play ball after signing. She said you take action.

This ain't perfect but it'll probably do.....they mentioned that the building could be used to house the father.......and trying to get the money I put in already ain't perfect either if i withdraw.

cheers Cheeryble

[JohnC]

Just to give you an idea of how things operate here, a friend owned a piece of land, the guy next door set up a recycling business and built a 20 foot high warehouse with corrugated sheeting using the party wall as a support, my friend got legal advice plus copies of the relevant regulations showing this was a illegal structure and took the neighbour to court, the judge agreed my friend was correct within the law, however he could (would) not order the offender to remove the structure as he (the offender) would lose face. Result legal costs of 60,000 baht and the structure remains.

You pay your money and you take your chances in this country.

[krading]

Donate to the Pu Yai Baan's re-election campaign.

[thaiwanderer]

Lawyer says it's a case of no matter what the law says the Land Office has to be used to it.

On her recommendation, if the seller still agrees, we shall make a personal contract with a penalty agreed.

I said what if they don't play ball after signing. She said you take action.

This ain't perfect but it'll probably do.....they mentioned that the building could be used to house the father.......and trying to get the money I put in already ain't perfect either if i withdraw.

cheers Cheeryble

As you're probably aware the contract no matter how nicely worded and or drastic the penalty agreed is only a key for litigation, which may fail (and even if successful may be very expensive).

You can never be sure what neighbouring land may be used for but in your case you're already on notice of a potential problem.

Obviously its up to you whether you feel you can walk away from money already spent but everything's relative.

[cheeryble]

Thankyou TW and others

Yesterday I firmed up all the details with the lawyer to go ahead ASAP.

I suggested she briefly call the two other parties involved before drawing up contracts to ensure the were still willing to contract no business next door.

This morning I got a call that the seller had called and said they were worried about the mortgage I had given them and wanted to pay it off straight away! What about the contract? Ah, we can agree on that later and sign.

Wierd thought.I.

I got a Thai friend to call and ask specifically if they were still on side for a no-business-next-door contract.

He said that they said ah we're just thinking of a lunchtime restaurant and maybe sell a few beers in the evening.

It is obvious to me they have renounced their verbal agreement from some days ago.

The only reason they would want to pay off the mortgage to me is that they have another buyer or are not happy to not open the "restaurant" they kept unknown from me whilst asking for use of a corner of my land for a wider entrance (!!!) and I only saw on a chance visit just before buying time. The fact that my gf says they agreed to pay everything I had paid out (50k baht on top of the 300k mortgage loan) suggests thay are expecting money.

On the other hand.....four fingers and a thumb.

In either case I cannot object, I must be satisfied if i get repaid and remember the words of Marcus Aurelius

Loss is nothing but change......and change is nature's delight.

Edited September 22, 2011 by cheeryble

[cheeryble]

As a courtesy to those who have followed and advised me throu this sorry episode today was the day the sellers had asked to clear the mortgage we gave them. We were concerned they would get funny about paying all we had expended.

Also about if they would annul the initial contract to buy.

The fact is I walked out of the land office today with 350k, all my cash expenditure including mortgage, deposit, survey costs, and administrator appointment......the latter of which are of course essential to them long term.

The contract was cancelled by both sides.

What a result. Strangely it feels as if I have won something. And I think I have a better....and legally clearer....alternative lot close by.

Cheers

Cheeryble