Will My Usufruct Be Taken Away?

[Fanlight Fanny]

My Usufruct was granted to me by my Thai mother-in-law after my marriage four years ago.

My wife filed for divorce in April 2012 but withdrew this application. She did not, however, agree to the ‘legal forgiveness’ of my supposed misdeeds.

I now find out that later in April my mother-in-law successfully applied to the Court to have our land (which is owned by my wife) transferred to her. She‘denounced’ my wife in Court as being a ‘bad daughter’ since December 2011 (the month after our marital disagreements began). The statements amount to her daughter becoming ‘bad’ because of my misconduct. This is absolutely ridiculous; mother and daughter are of course ‘as thick as thieves’. They see this as a legal way to get the Usufruct revoked.

I am not willing to give up my Usufruct. You will know why. I paid for everything: the land, the construction of the house, all the furnishings, all the bills, for the vehicles etc.

My wife seems reluctant now to file again for divorce because of what I have discovered about her behaviour. She is expecting me to give her several million baht in order to conclude the divorce and then (my lawyer tells me) I can probably be made homeless as the Usufruct will be taken away as a result of my mother-in-law’s denunciation of her daughter.

Is my lawyer correct in this view? Can I lose my Usufruct? Have any Members come across this piece of Thai legal chicanery before?

[HullyGully]

I was under the impression that a Usufruct was either a fixed period of time i.e 30 years or until your death.

The Usufruct is entered in the land document and technically even though the land is sold the Usufruct is still in place

Logically..no one would buy a plave with a sitting Usufruct

That is my understanding you need to talk to a lawyer

[TheWalkingMan]

Sounds like a bad situation. All I can say is good luck in whatever happens.

[TommoPhysicist]

I think you are safe, as the original Usufruct wasn't with your wife.

Edited September 7, 2012 by TommoPhysicist

[uptheos]

If you have usufruct, then your name is on the land papers.

In order to have your name removed, you must sign that you agree.

Having usufruct is OK and seemingly gives you 'security', but it means nothing when a whole tribe decide to move in with the dogs and chickens!

[Delight]

I have to same that I am confused.

You entered into a usufruct deal with a Thai lady.

Her daughter is getting divorced.

How are the 2 events legally connected?

[ballbreaker]

If the mother in-law was legal owner of the land when you were granted a usufruct you should not have a problem.

I also must say the wording used by the OP describing his situation leaves me confused.

[KRS1]

if the contract was in your name and not a clause like: "As long as Mr.xxx is still married to my daughter ..." you should be able to enforce it.

[asiawatcher]

This from law... You are the "usufructuary".

"You have a Thai girlfriend. She buys the land and gives you a usufruct on this land for free. It means that you can enjoy this property, even ask her to leave the property, can sublease and get the money from the rents, and this, until the end of your life. It is NOT restricted to 30 years maximum. On top of that, if you decide to build on this land, it is possible for you be the full owner of the buildings and constructions. It is really a strong right.

THE END OF A USUFRUCT CONTRACT

In Thailand, a usufruct can be created for a limited time (5 years, 10 years, etc.) or the LIFE of the usufructuary. (sect. 1418 CCCT). If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary. In any case, the usufruct ends at the death of the usufructuary.

THE USUFRUCTUARY CAN LEASE THE LAND/HOUSE

A usufructuary has the right to enjoy, use and possess the land. He is acting like the real owner but can not sell or destroy the property as he is NOT the full owner. However, he can transfer his rights on the land/house to a third party. Even if the usufruct will end at the death of the usufructuary (or a fixed period of time) the usufructuary can lease out the land to a third party and this second agreement will NOT end when the usufructuary will die as per the Supreme Court ruling 2297/1998: "the lessor does not have to be the owner of the property".

By this way, the usufructuary can grant a thirty years lease to a third party. By this way, you could pass on your rights to your children or other relatives even after death if the lease was done before the demise. Do not forget that all leases over 3 years must be registered at the land department and taxes have to be paid.

REGISTRATION

By a decision of the Supreme Court of Thailand, all usufruct agreements must be registered to be valid (Supreme Court decisions 6872/2539). Once you register a usufruct at the land department where the title deed is located, your name will be registered (written in Thai) on the title deed. After this registration, the land/house can only be sold provided the buyer respects this usufruct. This is why it will be difficult for the owner to sell the land/house after a usufruct is register: nobody wants to buy a property where they can’t live. Be aware land departments in Thailand have different rules and requirements. Some will ask to see your visa, some will ask for the father and mother’s name of the usufructuary, etc."

Edited September 8, 2012 by asiawatcher

[KRS1]

How do you pronounce USUFRUCT?

[davejones]

How do you pronounce USUFRUCT?

I was about to ask this question, but have now found the answer. It's kind of like user-fruct. Click audio icon on this page to hear it http://www.merriam-webster.com/dictionary/usufruct.

[KRS1]

How do you pronounce USUFRUCT?

I was about to ask this question, but have now found the answer. It's kind of like user-fruct. Click audio icon on this page to hear it http://www.merriam-w...ionary/usufruct.

another question is, how do you relate that into thai?

[Khun Jean]

My Usufruct was granted to me by my Thai mother-in-law after my marriage four years ago.

My wife filed for divorce in April 2012 but withdrew this application. She did not, however, agree to the ‘legal forgiveness’ of my supposed misdeeds.

I now find out that later in April my mother-in-law successfully applied to the Court to have our land (which is owned by my wife) transferred to her. She‘denounced’ my wife in Court as being a ‘bad ....

This is very unclear and contradicts itself.

You say the usufruct was granted to you by your mother in law and 2 sentences later you say the land is owned by your wife?

It can not be both so which is it?

Please give a detailed timeline of what happened and at what time documents were made and who owned exactly what when those documents were signed.

[kimmy]

When you have a Thai girlfiend or mother in law and she gives you a usufruct for free, then as i read it, she can claim revocation of the usufruct (if given for free) if you seriously defamed or insulted her, read section 531 civil code? Reading your mother in laws actions in court she is probably smart enough to get the usufruct cancelled, and by claiming the land back from her daughter you can't claim the house is common property in a divoce.

[Delight]

When you have a Thai girlfiend or mother in law and she gives you a usufruct for free, then as i read it, she can claim revocation of the usufruct (if given for free) if you seriously defamed or insulted her, read section 531 civil code? Reading your mother in laws actions in court she is probably smart enough to get the usufruct cancelled, and by claiming the land back from her daughter you can't claim the house is common property in a divoce.

If the land was a gift ,then 531 Civil code may apply. The land was not a gift -in the OP's case. If the usufruct can simply be over ridden by the land owner then there is little point in having one.

[taninthai]

The way you have written it says land was owned by wife but usufruct issued by mother law that's impossible surely only land owner can give usufruct

[kimmy]

The way you have written it says land was owned by wife but usufruct issued by mother law that's impossible surely only land owner can give usufruct

I assume the mother in law had some land for sale, the OP followed the advice on TV and obtained a usufruct prior to the transfer of the land to his wife, maybe useless.

[Fanlight Fanny]

Many thanks for the help; very sorry if my original post did not explain clearly. The land was owned by my mother-in-law when the Usufruct was granted.

Khun Jean and Kimmy – my mother-in-law granted the usufruct but I had verbally agreed beforehand to pay off the loan she had on the land from an official land bank in order that the land could be transferred on the Chanote to her daughter (who was already my wife) with no money owing. This repayment of the loan took place a few days later and I hope that the bank will have a record of this although I might have to prove that it was my 180,000 baht not my supposedly ‘poor’ mother-in-law’s! (suggestions on this welcome!)

Khun Jean, thank you for the idea of a detailed timeline. I’ll draw one up (I’ll need my lawyer’s help) and post it here asap.

KRS1 – I think I made a mistake by not having a separate contract with my mother-in-law. The usufruct was simply added at the local Land Office for official registration.

Asia watcher - thank you so much for the information. The phrase ‘After this registration, the land/house can only be sold provided the buyer respects this usufruct’ is, I hope, only too true.

I'll consult my lawyer over Article 531 of the civil code. Any further help would be greatly appreciated.

[Phronesis]

This repayment of the loan took place a few days later and I hope that the bank will have a record of this although I might have to prove that it was my 180,000 baht not my supposedly ‘poor’ mother-in-law’s! (suggestions on this welcome!)

Stop right there.

Why on earth are you wasting your valuable life fighting over less than $6K USD?

If this amount of money is a showstopper for you what the hell are you doing living in a foreign country?

Walk away.

Isn't your mental and physical health, and your own time, worth more than $6K?

Take great care to hold yourself above the pettiness of spite. Your rewards will be manyfold.

Edited September 9, 2012 by Phronesis

[LivinLOS]

This repayment of the loan took place a few days later and I hope that the bank will have a record of this although I might have to prove that it was my 180,000 baht not my supposedly ‘poor’ mother-in-law’s! (suggestions on this welcome!)

Stop right there.

Why on earth are you wasting your valuable life fighting over less than $6K USD?

If this amount of money is a showstopper for you what the hell are you doing living in a foreign country?

Walk away.

Isn't your mental and physical health, and your own time, worth more than $6K?

You would assume that the 180k baht was the land price or maybe even part of the land price..

The subsequent house build on the land being the issue no ??

The land a million dollar villa sits on may not be worth arguing over, but the sum of its parts ??

[how241]

This from law... You are the "usufructuary".

"You have a Thai girlfriend. She buys the land and gives you a usufruct on this land for free. It means that you can enjoy this property, even ask her to leave the property, can sublease and get the money from the rents, and this, until the end of your life. It is NOT restricted to 30 years maximum. On top of that, if you decide to build on this land, it is possible for you be the full owner of the buildings and constructions. It is really a strong right.

THE END OF A USUFRUCT CONTRACT

In Thailand, a usufruct can be created for a limited time (5 years, 10 years, etc.) or the LIFE of the usufructuary. (sect. 1418 CCCT). If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary. In any case, the usufruct ends at the death of the usufructuary.

THE USUFRUCTUARY CAN LEASE THE LAND/HOUSE

A usufructuary has the right to enjoy, use and possess the land. He is acting like the real owner but can not sell or destroy the property as he is NOT the full owner. However, he can transfer his rights on the land/house to a third party. Even if the usufruct will end at the death of the usufructuary (or a fixed period of time) the usufructuary can lease out the land to a third party and this second agreement will NOT end when the usufructuary will die as per the Supreme Court ruling 2297/1998: "the lessor does not have to be the owner of the property".

By this way, the usufructuary can grant a thirty years lease to a third party. By this way, you could pass on your rights to your children or other relatives even after death if the lease was done before the demise. Do not forget that all leases over 3 years must be registered at the land department and taxes have to be paid.

REGISTRATION

By a decision of the Supreme Court of Thailand, all usufruct agreements must be registered to be valid (Supreme Court decisions 6872/2539). Once you register a usufruct at the land department where the title deed is located, your name will be registered (written in Thai) on the title deed. After this registration, the land/house can only be sold provided the buyer respects this usufruct. This is why it will be difficult for the owner to sell the land/house after a usufruct is register: nobody wants to buy a property where they can’t live. Be aware land departments in Thailand have different rules and requirements. Some will ask to see your visa, some will ask for the father and mother’s name of the usufructuary, etc."

Good post. Thanks

[impulse]

If the usufruct is valid as long as the OP is alive, is having it taken away legally the biggest worry? I'd worry more about losing it the other way...

If the usufruct was granted for no consideration (free), is it still a valid contract, or does value have to change hands both ways?

How does a guy with no posts find himself asking questions like this on TV? Perhaps he hasn't read enough TV to know that half the posts will say yes, another half will say no, and the third half will suggest he go back home.

[TommoPhysicist]

If the usufruct was granted for no consideration (free), is it still a valid contract, or does value have to change hands both ways?

The OP paid 180k for the use of the land, not free.

[Tanaka]

If the usufruct was granted for no consideration (free), is it still a valid contract, or does value have to change hands both ways?

The OP paid 180k for the use of the land, not free.

No, he paid off a loan his mil had on the property. Has nothing to do with the usufruct. If the usufruct is registered at the Land Office and on the back of the Chanote, it is still valid if the land is sold. Matters not if the land now is owned by the wife or mil or whoever, the usufruct stands.

[simple1]

OP: You have stated that your wife will not proceed with divorce proceeding unless you pay her 2m baht. Upon receipt of the 2m baht she intends to commence divorce proceedings. Your wife can revoke the Usufruct upon divorce; see quote below.

Khun Jean as you seem to be the resident subject matter expert on this forum, do you agree/disagree?

Civil and Commercial Code section 1469 - Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

Edited September 9, 2012 by simple1

[TommoPhysicist]

OP: You have stated that your wife will not proceed with divorce proceeding unless you pay her 2m baht. Upon receipt of the 2m baht she intends to commence divorce proceedings. As the Chanote was transferred to your wife when you were married surely the Usufruct agreement between you and MIL would be nullified upon transfer. However, if upon transfer the Usufruct was not removed from the Chanote, your wife can revoke the Usufruct upon divorce; see quote below.

Khun Jean as you seem to be the resident subject matter expert on this forum, do you agree/disagree?

Civil and Commercial Code section 1469 - Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

Original agreement with MIL no contract ever made with wife.

[LivinLOS]

OP: You have stated that your wife will not proceed with divorce proceeding unless you pay her 2m baht. Upon receipt of the 2m baht she intends to commence divorce proceedings. As the Chanote was transferred to your wife when you were married surely the Usufruct agreement between you and MIL would be nullified upon transfer. However, if upon transfer the Usufruct was not removed from the Chanote, your wife can revoke the Usufruct upon divorce; see quote below.

Khun Jean as you seem to be the resident subject matter expert on this forum, do you agree/disagree?

Civil and Commercial Code section 1469 - Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

This one is murkey tho.. As the usufruct was not between husband and wife, it was between husband and mother of the wife.. The fact that the land has now passed from the mother to the wife should (logically, and I know thats a dangerous assumption) be irrelevant to the usufruct. This wasnt an agreement between husband and wife, that would be then under the influence of section 1469.

[simple1]

OP: You have stated that your wife will not proceed with divorce proceeding unless you pay her 2m baht. Upon receipt of the 2m baht she intends to commence divorce proceedings. As the Chanote was transferred to your wife when you were married surely the Usufruct agreement between you and MIL would be nullified upon transfer. However, if upon transfer the Usufruct was not removed from the Chanote, your wife can revoke the Usufruct upon divorce; see quote below.

Khun Jean as you seem to be the resident subject matter expert on this forum, do you agree/disagree?

Civil and Commercial Code section 1469 - Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith are not affected thereby.

Original agreement with MIL no contract ever made with wife.

OK, to close out this particular debate - the Usufruct agreement is not documented on the Chanote? If it is, upon transfer of the Chanote to the OP's wife name is she not then the legal owner of the Usufruct agreement?

[LennyW]

From the Civil and Commercial Code of Thailand (CCCT) Sections 1417 -1428

"Registration....

By a decision of the Supreme Court Of Thailand, all Usufruct agreements must be registered to be valid (Supreme court descisions 6872/2539). Once you register a Usufruct at the Land Department where the title deed is located, your name will be registered (written in Thai) on the title deed. After this registration, the Land/House can only be sold provided the buyer respects this Usufruct."

So from this i would say ...... 1) The buyer must respect the Usufruct, and 2) Failure to respect the Usufruct would surely void the sale.

The OP says " he hopes this would be true" it is fact!

Surely a good lawyer would argue that the mother in law is just trying to circumvent the law in favour of her daughter, and if the law is to be upheld then the buyer must respect the usufruct. If the OP's lawyer cannot or will not do this, i suggest you change lawyers as soon as possible.

[nahkit]

This from law... You are the "usufructuary".

"You have a Thai girlfriend. She buys the land and gives you a usufruct on this land for free. It means that you can enjoy this property, even ask her to leave the property, can sublease and get the money from the rents, and this, until the end of your life. It is NOT restricted to 30 years maximum. On top of that, if you decide to build on this land, it is possible for you be the full owner of the buildings and constructions. It is really a strong right.

THE END OF A USUFRUCT CONTRACT

In Thailand, a usufruct can be created for a limited time (5 years, 10 years, etc.) or the LIFE of the usufructuary. (sect. 1418 CCCT). If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary. In any case, the usufruct ends at the death of the usufructuary.

THE USUFRUCTUARY CAN LEASE THE LAND/HOUSE

A usufructuary has the right to enjoy, use and possess the land. He is acting like the real owner but can not sell or destroy the property as he is NOT the full owner. However, he can transfer his rights on the land/house to a third party. Even if the usufruct will end at the death of the usufructuary (or a fixed period of time) the usufructuary can lease out the land to a third party and this second agreement will NOT end when the usufructuary will die as per the Supreme Court ruling 2297/1998: "the lessor does not have to be the owner of the property".

By this way, the usufructuary can grant a thirty years lease to a third party. By this way, you could pass on your rights to your children or other relatives even after death if the lease was done before the demise. Do not forget that all leases over 3 years must be registered at the land department and taxes have to be paid.

REGISTRATION

By a decision of the Supreme Court of Thailand, all usufruct agreements must be registered to be valid (Supreme Court decisions 6872/2539). Once you register a usufruct at the land department where the title deed is located, your name will be registered (written in Thai) on the title deed. After this registration, the land/house can only be sold provided the buyer respects this usufruct. This is why it will be difficult for the owner to sell the land/house after a usufruct is register: nobody wants to buy a property where they can’t live. Be aware land departments in Thailand have different rules and requirements. Some will ask to see your visa, some will ask for the father and mother’s name of the usufructuary, etc."

If the highlighted sentence above is correct then the mother-in-law could have granted the usufruct and then subsequently transferred/sold the land to the daughter and regardless of who owns the land, the usufruct granted in favour of the OP would still be in place.

(This was meant to be in reply to post #16)

Edited September 9, 2012 by nahkit