Buying A Property Help Please!

[solentstu]

I know this has been done to death and foreigners cant own land in Thailand but can own a property on the land etc etc

But I'd be very grateful if someone could offer any advice on the following.

I am thinking about purchasing a house with my Thai partner. I thought that a reasonable way to do it would be to transfer the land into her name and the house into my name and I could then set up a lease agreement to rent to land from her for 30 years. This would give me some degree of protection should anything go wrong with our relationship, which of course could happen!!!

However when discussing this with my lawyer (who happens to be Thai) he has told me that the house cannot legally be transferred into my name as it would already be existing on the land when we brought the land and this is on 1 chanote title. He says that I could put the land and house into her name and then have a 30 year lease agreement on the house and land. However the rental agreement on the house and land would attract significant amounts of tax. So he says that the best way to do it is to put the house and land in her name and then have a contract between me and her about the ownership, my rights to sell etc etc. This concerns me as there would be nothing specifically registered at the land office with my name on it and I would just have the contract between myself and my partner as our agreement over ownership and rights over the property.

So two questions really

1) Is the lawyer correct that I cant transfer the house in my name if it already exists on the land when we buy it?

2) I can see that his way is beneficial in terms of saving tax on a lease agreement but does it sound safe ie if there was a disagreement in the future would a contract between myself and my partner stand up in court and would it be legal?

Any help/advise would be greatly appreciated

[LennyW]

Put it in your partners name (as long as you are not married) and get a lifetime Usufruct in your favour, registered at the land office for 150 Baht on the same day (although your lawyer will require more money no doubt!) and no annual tax burdens, then no need to separate the two.

Edited July 26, 2012 by LennyW

[Morakot]

Put it in your partners name (as long as you are not married) and get a lifetime Usufruct in your favour, registered at the land office for 150 Baht on the same day (although your lawyer will require more money no doubt!) and no annual tax burdens, then no need to separate the two.

Are you suggesting the Usufruct as an alternative to leasing?

[TommoPhysicist]

Leasing is safer if partner and not spouse.

Ursufruct is safer if spouse and not partner.

I'm of the opinion that both are utter madness, but what do I know.

[Morakot]

An usufruct allows you to stay, but you have no control who else is there. If you lease do have control over that.

[TommoPhysicist]

An usufruct allows you to stay, but you have no control who else is there. If you lease do have control over that.

Depends how either paper is worded. Either may contain the words 'exclusive use'.

[Morakot]

An usufruct allows you to stay, but you have no control who else is there. If you lease do have control over that.

Depends how either paper is worded. Either may contain the words 'exclusive use'.

I see, thanks for this!

I found something more here http://www.isaanlawyers.com/Usufruct%20agreements%20in%20Thailand.pdf

[ballbreaker]

The usufruct gives you complete management control of the property.

[Morakot]

[usufruct] may contain the words 'exclusive use'.

What would happen, if the spouse who owns the property passes away and the inheriting non-Thai is forced to sell but has an ("exclusive use") usufruct?

Edited July 26, 2012 by Morakot

[luwahn]

The usufruct gives you complete management control of the property.

Leasing is safer if partner and not spouse.

Ursufruct is safer if spouse and not partner.

I'm of the opinion that both are utter madness, but what do I know.

[usufruct] may contain the words 'exclusive use'.

What would happen, if the spouse who owns the property passes away and the inheriting non-Thai is forced to sell but has an ("exclusive use") usufruct?

Now that's a very good question. Though I would ask Isaan lawyers for conformation, but in this situation, while Thai law stipulates that the land title has to be transferred into the name of a Thai national within a year, it also states that any potential title owner must also abide by the terms of the existing usufruct which are spelled out on the title at the Land Registrars Office.

Thai Law 101: A usufruct is the way to go if you have it enacted before the marriage - it can't be dissolved w/o cause (per terms of usufruct). Whereas, if a usufruct is enacted while married, the Thai spouse has the legal right to unilaterally dissolve a usufruct at her/his discretion - usually at times of marital discord / divorce.

Edited July 26, 2012 by luwahn

[Morakot]

What would happen, if the spouse who owns the property passes away and the inheriting non-Thai is forced to sell but has an ("exclusive use") usufruct?

Now that's a clever question. Though I would ask Isaan lawyers for conformation, but in this situation, while Thai law stipulates that the land title has to be transferred into the name of a Thai national within a year, it also states that any potential title owner must also abide by the terms of the existing usufruct which are spelled out on the title at the Land Registrars Office.

Yes, I think that's the situation. The question would be, what happens in practice when it comes to a forced sell and there is no buyer. A forced sell by the Land Registrars Office does it involve adherence to a minimum price in an auction style?

Edited July 26, 2012 by Morakot

[luwahn]

Yes, I think that's the situation. The question would be, what happens in practice when it comes to a forced sell and there is no buyer. A forced sell by the Land Registrars Office does it involve adherence to a minimum price in an auction style?

Unless an actual situation is posted to the contrary, under everyday circumstances, the terms/conditions of a Chanote title; dimensions, ect., don't change regardless of the manner of the sale and neither do the terms of a usufruct because it is written right on the title and thus is as much of and unchangeable to the Chanote title as the title's property dimensions - period.

[Morakot]

Yes, I think that's the situation. The question would be, what happens in practice when it comes to a forced sell and there is no buyer. A forced sell by the Land Registrars Office does it involve adherence to a minimum price in an auction style?

Unless an actual situation is posted to the contrary, under everyday circumstances, the terms/conditions of a Chanote title; dimensions, ect., don't change regardless of the manner of the sale and neither do the terms of a usufruct because it is written right on the title and thus is as much of and unchangeable to the Chanote title as the title's property dimensions - period.

Sure.

Sorry, what I was hypothetically trying to explore is how likely will it be that there will be no buyer in a forced sale and therefore no sale.

[luwahn]

Put it in your partners name (as long as you are not married) and get a lifetime Usufruct in your favour, registered at the land office for 150 Baht on the same day (although your lawyer will require more money no doubt!) and no annual tax burdens, then no need to separate the two.

Exactly!

[necronx99]

Yes, I think that's the situation. The question would be, what happens in practice when it comes to a forced sell and there is no buyer. A forced sell by the Land Registrars Office does it involve adherence to a minimum price in an auction style?

Unless an actual situation is posted to the contrary, under everyday circumstances, the terms/conditions of a Chanote title; dimensions, ect., don't change regardless of the manner of the sale and neither do the terms of a usufruct because it is written right on the title and thus is as much of and unchangeable to the Chanote title as the title's property dimensions - period.

Sure.

Sorry, what I was hypothetically trying to explore is how likely will it be that there will be no buyer in a forced sale and therefore no sale.

A forced sale would have no reserve.

[luwahn]

Sorry, what I was hypothetically trying to explore is how likely will it be that there will be no buyer in a forced sale and therefore no sale.

No buyer in LOS of a forced sale of property built up by a farang......?

A real estate lawyer can show you your way through this situation.

[Morakot]

Thanks necronx, clarified now.

A no reserve auction would not create such a situation in case of a (finite) usufruct.

Edited July 26, 2012 by Morakot

[necronx99]

Thanks necronx, clarified now.

A no reserve auction would not create such a situation in case of a (finite) usufruct.

Usufucts have become popular but have not been tested in law as fit for the purpose.

They are intended literally to give rights over land for agricultural or resource harvesting use only, not residential.

If all you are worried about is,the untimely death of your partner then a will would suffice.

If you have offspring you can sell or gift to them or do the same with another relative in return for a usufuct or lease.

[luwahn]

Usufucts have become popular but have not been tested in law as fit for the purpose.

I beg to defer......I personally know of a farang who is living under his usufruct that has not only been tested but upheld twice when challenged in court.

People just don't go around advertising such things.

[Morakot]

Usufucts have become popular but have not been tested in law as fit for the purpose.

I beg to defer......I personally know of a farang who is living under his usufruct that has not only been tested but upheld twice when challenged in court.

The learned opinion of the lawyer, who is the author of this document seems to support this.

Usufruct agreements in Thailand.pdf

Edited July 27, 2012 by Morakot

[solentstu]

Put it in your partners name (as long as you are not married) and get a lifetime Usufruct in your favour, registered at the land office for 150 Baht on the same day (although your lawyer will require more money no doubt!) and no annual tax burdens, then no need to separate the two.

Thanks for the advice, if a Usufruct is put in place in my favour can I easily dissolve it if we decide to sell to sell the house? I cant see many people wanting to buy a house that I have the right to live in

[ballbreaker]

Thanks for the advice, if a Usufruct is put in place in my favour can I easily dissolve it if we decide to sell to sell the house? I cant see many people wanting to buy a house that I have the right to live in

A usufruct can be cancelled at the land office. It requires the signature of usufruct holder and current property owner.