Public Road Suddenly Appears Across Your Chanote Land

[notime]

Our Thai company invested in a land covered by clear NSS3 title. We have later received the Chanote title to the full land. Now, somebody has built a road across our land and claims that one of the previous owners of the land, when it was still NSS3, declared then in writing that he gave part of the land for public use. This was never registered on any title. We went to the local court at Samui about this issue and now are hearing from the judge that in Thai law, it's enough if the owner of the land "declares his intention of giving the land for public use" for it to became public even if this is not registered on any title. This contradicts the very merit of land titles, that give the right of possession to the title holder but is coming from the JUDGE so we take it very seriously.

Can anybody please provide some insight into this matter? This situation, or a loophole in the law has a great importance to all land owners in Thailand who should be made aware of it if true.

[MikeyIdea]

I have no experience in this specific issue but I would expect 2 things;

A civil court is a bit of God in itself but an appeals court is a different matter. Unless you get clear confirmation from more than one lawyer that the law actually is clear on this, then push it through the 1st level court and to the appeals court. They may very well reverse the lower courts decision. Contact lawyer OutSide KS for second opinion...

Koh Samui? Well, not surprised. I have heard of a few irregularities from KS, don't know what to call it really but disrespect for the law, supported by lawyers as well as (lower) courts perhaps. It's not going to go through an appeals court if law doesn't support it

Edited November 25, 2011 by MikeyIdea

[InterestedObserver]

1. Any request to donate land for public use would have to be made in writing and registered with the Land Department, AKA the competent authority, and become part of the public record.

2. Due diligence by your lawyers should have uncovered the transaction, if it was made, before the company purchased the land.

3. "declares his intention of giving the land for public use" sounds like there is no written record. Ask the land office for a copy of the written record.

4. At this point in time, the Judge has ruled.

5. Your only recourse is with the appeals process, but get all the facts clear before wasting your time and money..

[thaiwanderer]

This situation doesn't contradict the merit of titles since they can only ever at most cover encumberances registered against them.

While it wouldn't have stopped a disingenuous seller failing to declare it and would only be a key to litigation, the sale and purchase contract should have covered this eventuality

- a declaration (and penalty for false declaration) of nothing restricting the new owner's (actually 'rights holder' rather than 'owner' as then NS3G) use and enjoyment of the land etc..

Before then, due dilligence should perhaps have uncovered the declaration and even not, perhaps the need for another's access.

If the declaration has been properly made I suspect an appeal may not be successful since a third party would now be prejudiced by ruling against it.

More work will be necessary to find out the exact nature of the declaration etc..

[gamini]

If the road is intended to give access to land which can not be accessed by another route then you have no case.

[notime]

Thank you all for the replies.

The declaration was not made to, or registered at the Land Office. That's why there was nothing to discover by due diligence. The "declaration" is in a form of a signature on the copy of the land title showing the easement. That was included in an agreement with another purchaser (before our company) who didn't go ahead with the purchase. The agreement was requiring that purchaser to give that part of land to public use. The judge is saying that it is enough proof that the land owner actually gave it to public. Is that a "proper declaration"?

Our company only has a standard sale agreement from the Land Office, signed by both parties and showing that the land in its entirety was purchased by us. The judge mentioned that we could perhaps sue the previous owner for a refund on the portion of that land that was given by him to public. But this is not a solution since it's the road with 12m electric poles are what impacts most on the value of the sea-view land.

Later documents from the Land Office made during the upgrade to Chanote state that there is no public road in the contested area. Both titles also don't show any road there.

It's all very strange to me as I believed that all easements/interests must be registered on titles. That's what the titles are for. I feel shattered by the judges comments. It wasn't the end ruling yet but just a mediation talk. Maybe they are just working me out?

The "third party" has another way of accessing their land although it is more difficult due to the slope in the terrain.

[InterestedObserver]

The "declaration" is in a form of a signature on the copy of the land title showing the easement. That was included in an agreement with another purchaser (before our company) who didn't go ahead with the purchase. The agreement was requiring that purchaser to give that part of land to public use.

AND

The judge is saying that it is enough proof that the land owner actually gave it to public.

You could argue that the sale was never completed and/or registered unless the competent authority can produce the sales agreement and tax receipt to go along with the land title, therefore the document is not valid (void) .

Edited November 25, 2011 by InterestedObserver

[manarak]

The "declaration" is in a form of a signature on the copy of the land title showing the easement. That was included in an agreement with another purchaser (before our company) who didn't go ahead with the purchase. The agreement was requiring that purchaser to give that part of land to public use.

AND

The judge is saying that it is enough proof that the land owner actually gave it to public.

You could argue that the sale was never completed and/or registered unless the competent authority can produce the sales agreement and tax receipt to go along with the land title, therefore the document is not valid (void) .

All the speculations on this forum are no use.

I believe the donation to public use should have been recorded at the land office.

I advise you to get a heavyweight among lawyers to examine this case, preferably in coordination with a well known international legal consulting firm.

[thaiwanderer]

I'm struggling to understand the Judge's apparent legal reasoning (doesn't mean there isn't other $$$ reasoning at play).

IIUC the previous owner indicated an intention for the failed buyer to agree to give access to the third party land, BUT that sale never went through.

The easement appears not to have been registered and other than pre-contract notes on a failed sale there is apparently no other record of it.

The Judge appears not to be saying the third party land needs access over OP's land (along that route or at all) via CCC section 1349 although this eventuality will need to be covered given the steep slope in the alternative route.

Whatever, time to lawyer up.

Edited November 26, 2011 by thaiwanderer

[Soboringtochooseaname]

Not surprising, these "judges" keep thinking that if farangs were not in Thailand they wouldn't make or meet problems...

[thaiwanderer]

Our company only has a standard sale agreement from the Land Office, signed by both parties and showing that the land in its entirety was purchased by us. The judge mentioned that we could perhaps sue the previous owner for a refund on the portion of that land that was given by him to public. But this is not a solution since it's the road with 12m electric poles are what impacts most on the value of the sea-view land.

On re-reading this - was the road and electric poles in situ prior to purchase?

[InterestedObserver]

Our company only has a standard sale agreement from the Land Office, signed by both parties and showing that the land in its entirety was purchased by us. The judge mentioned that we could perhaps sue the previous owner for a refund on the portion of that land that was given by him to public. But this is not a solution since it's the road with 12m electric poles are what impacts most on the value of the sea-view land.

On re-reading this - was the road and electric poles in situ prior to purchase?

An interesting question given:

Our Thai company invested in a land covered by clear NSS3 title. We have later received the Chanote title to the full land. Now, somebody has built a road across our land and claims that one of the previous owners of the land, when it was still NSS3, declared then in writing that he gave part of the land for public use.

[binjalin]

TIT nothing is for sure and i would never take such a risk by buying a substantial piece of land - it would be luck if it turned out ok and bad luck if it didn't

[haveaniceday]

was the road and electric poles in situ prior to purchase?

How would one even know this in LOS ?

So in Thailand, looks like a void contract ( sale fell through) form a previous owner can make you loose your land. What a precedent for countless future scams.

[lannarebirth]

If the road is intended to give access to land which can not be accessed by another route then you have no case.

That is not true. There is plenty of landlocked land here in Thailand and there is no such thing as a "proscriptive easement" here.

[mrbojangles]

So in Thailand, looks like a void contract ( sale fell through) form a previous owner can make you loose your land. What a precedent for countless future scams.

And they scam each other, this isn't just on foreigners.

My Mrs was telling me about someone in her village last week. The daughter of a guy who is helping to build our house bought some land off her cousin. It was originally a large peice which was divided up among the kids when their dad died. At the time it had a wooden shack type of house and everything was fine. The land she bought off one of her cousins is land locked and the road is about 10m in front of hers, so she has to cross one of her other cousins land to get to hers. Permission was all given verbally.

The Daughter of our builder has now built a new house and after the cousin letting trucks and everything else get access to build her house, the cousin has all of a sudden said "ÿou cannot cross my land". That can't be right can it? Surely if the cousin had an objection this should have been made before the house was built and stopped trucks crossing right at the start. To allow access until the house is fully built and then rescind it is just wrong IMO !! Don't know if she has a leg to stand on.

[InterestedObserver]

That can't be right can it? Surely if the cousin had an objection this should have been made before the house was built and stopped trucks crossing right at the start. To allow access until the house is fully built and then rescind it is just wrong IMO !! Don't know if she has a leg to stand on.

She does not. Ask the village chief to mediate or a lawyer needs to explain the law to the cousin.

[haveaniceday]

I do not really know the law, so don't take advice from me, but unfortunately I have way to much first hand experience with this !!!

For what it is worth, out local headman, who has a habit of "sorting things out" has advised us not to let a particular asshol_e cross our land, once we do, the local headman says he will have a strong case for access via our land.

[mrbojangles]

That can't be right can it? Surely if the cousin had an objection this should have been made before the house was built and stopped trucks crossing right at the start. To allow access until the house is fully built and then rescind it is just wrong IMO !! Don't know if she has a leg to stand on.

She does not. Ask the village chief to mediate or a lawyer needs to explain the law to the cousin.

So, are you saying that because this cousin gave access in the first instance, she can't now take it away? If this is the case I'll get the wife to call Thailand and tell the womans father. the daughter is an old friend of the wifes and the father is a top fella. I feel sorry for him (he built his daughters house)although she paid for the materials and he now feels a bit responsible. If the Puu Yai Baan (sp) can't get a result, I'd even help pay towards the lawyer.

[thaiwanderer]

If the road is intended to give access to land which can not be accessed by another route then you have no case.

That is not true. There is plenty of landlocked land here in Thailand and there is no such thing as a "proscriptive easement" here.

Have you not considered CCC 1349?

[InterestedObserver]

That can't be right can it? Surely if the cousin had an objection this should have been made before the house was built and stopped trucks crossing right at the start. To allow access until the house is fully built and then rescind it is just wrong IMO !! Don't know if she has a leg to stand on.

She does not. Ask the village chief to mediate or a lawyer needs to explain the law to the cousin.

So, are you saying that because this cousin gave access in the first instance, she can't now take it away? If this is the case I'll get the wife to call Thailand and tell the womans father. the daughter is an old friend of the wifes and the father is a top fella. I feel sorry for him (he built his daughters house)although she paid for the materials and he now feels a bit responsible. If the Puu Yai Baan (sp) can't get a result, I'd even help pay towards the lawyer.

Civil and Commercial Code:

Section 1349. If a piece of land is so surrounded by other pieces of land that it has no access to the public ways, the owner may pass over the surrounding land to reach a public way.

The same applies, if passage can only be had over a pond, marsh, or sea, or if there is a steep slope with a considerable difference of level between the land and the public way.

The place and the manner of the passage must be chosen as to meet the needs of the person entitled to passage and at the same time to cause as little damage as possible to the surrounding land. The person entitled to passage may, if necessary, construct a road for passage.

The person entitled to passage must pay compensation for any damage suffered by the land owner on account of the passage being established. Such compensation, except for damages arising from the construction of a road, may be made by annual payments

Edited December 10, 2011 by InterestedObserver

[lannarebirth]

If the road is intended to give access to land which can not be accessed by another route then you have no case.

That is not true. There is plenty of landlocked land here in Thailand and there is no such thing as a "proscriptive easement" here.

Have you not considered CCC 1349?

I believe code you cited is not the same thing as a proscriptive easement and of course it doesn't specify WHICH piece of adjacent land the landlocked owner may travel over.

[thaiwanderer]

I believe code you cited is not the same thing as a proscriptive easement and of course it doesn't specify WHICH piece of adjacent land the landlocked owner may travel over.

I didn't say it was.

What difference does it make what its called given you were disagreeing with 'If the road is intended to give access to land which can not be accessed by another route you have no case'?

[haveaniceday]

Around where I am, there is allot of land locked land that when it sells, goes for much cheaper than land with access. So what you are saying, is it is no problem to buy the very cheap land, you will get access 100%, build a road way in, and sell it off for the going rate of land with access ?

[InterestedObserver]

Around where I am, there is allot of land locked land that when it sells, goes for much cheaper than land with access. So what you are saying, is it is no problem to buy the very cheap land, you will get access 100%, build a road way in, and sell it off for the going rate of land with access ?

Nobodies going to fall for that trick unless there is a servitude registered on the other fellows Chanote granting access.

[thaiwanderer]

For sure in many instances its a key to litigation (i.e. potential headache) rather than something to rely on. But the OP is coming at it from the other end with a road apparently built across his/her land.

[rufanuf]

Call me niave, but your stating that your title was NS3? NS3 is not clear title, boundaries and access can be disputed. Just becuase the upgrade title overlooked the signature to give access doesnt make your Chanote correct, becuase the new title did not take into account all factors of the old title, its a typo. We recently took land in Hua Hin area and for some years I took a shine to various NS3 plots, usually becuase of the lower price tag, and many expats with much more experience than me said "you'd be taking a big risk" I ended up buying NS4 (Full Chanote). Your story to me seems to be the proof in the pudding of what friends warned me of. Stay away from any land that is not NS4 when you purchase it, there are too many potential pitfalls.

Edited December 13, 2011 by rufanuf