Will My Usufruct Be Taken Away?

[taninthai]

I'd like to know what area this is in and how much has op invested in this land your usufruct seems completely legal however if they want you of the land I'm sure the Thais have other ways of dealing with things like this ,I for one would not like to occuppying a piece of land knowing full well the landowner does not want me there

[LivinLOS]

I'd like to know what area this is in and how much has op invested in this land your usufruct seems completely legal however if they want you of the land I'm sure the Thais have other ways of dealing with things like this ,I for one would not like to occuppying a piece of land knowing full well the landowner does not want me there

While I understand the sentiment, isnt that precisely what the point of these legal protections is, to retain your use even if the landowner relationship sours.

If your only going to just turn tail and leave at the first time the landowner changes their minds you may as well not bother with them at all.

[Paul888]

I think this is really one of those look at the "bigger picture" issues where winning may end up less of a victory than you anticipated. I don't imagine the matter will end with a court ruling so you have to ask yourself if you need the headache that is coming and either get ready for it, or negotiate the best exit you can get.

Nobody can advise you on that, only you know the people concerned and the value of the land/house etc

Edited September 9, 2012 by Paul888

[EarthAlien]

I get sick and tired of all this talk about the validity of Userfruct agreements and 30 year leases.

Fact is that there is zero precedent in Thai law where they have been upheld and protected the farang's right to occupy or control property.

Not worth the paper that they're written on!

When it comes down to the wire the court will always bow to the sob strories (AKA lies) of the estranged ex and grant them full control of their property at the expense of the porr farang being booted out.

We can't own or control property here,.. plain and simple fact that you need to get used to!

My advice,... be prepared to gift the house to your wife (perhaps where kids are involved) or just stick to buying and selling condos!

Just my two cents,.... but could be worth a lot more to you if applied

[DefaultName]

Useful as this forum is, IMO the OP needs to sit down with a lawyer.

[taninthai]

I'd like to know what area this is in and how much has op invested in this land your usufruct seems completely legal however if they want you of the land I'm sure the Thais have other ways of dealing with things like this ,I for one would not like to occuppying a piece of land knowing full well the landowner does not want me there

While I understand the sentiment, isnt that precisely what the point of these legal protections is, to retain your use even if the landowner relationship sours.

If your only going to just turn tail and leave at the first time the landowner changes their minds you may as well not bother with them at all.

The usufruct and lease system does work for many people seems better if the actual usufruct is from a third party non biased person easier said than done ,if you have the family involved in your chosen way of obtaining and holding land/property your always gonna have problems when it turns sour with the missess

[LennyW]

I get sick and tired of all this talk about the validity of Userfruct agreements and 30 year leases.

Fact is that there is zero precedent in Thai law where they have been upheld and protected the farang's right to occupy or control property.

Not worth the paper that they're written on!

When it comes down to the wire the court will always bow to the sob strories (AKA lies) of the estranged ex and grant them full control of their property at the expense of the porr farang being booted out.

We can't own or control property here,.. plain and simple fact that you need to get used to!

My advice,... be prepared to gift the house to your wife (perhaps where kids are involved) or just stick to buying and selling condos!

Just my two cents,.... but could be worth a lot more to you if applied

Please don't spout <deleted> like this when it is clear you have nothing to add other than rumour or heresay, a quick search of this forum will yield results showing that courts have upheld in favour of foreigners holding Usufruct over property, and that is just forum members. I am sure there will be more in the general population of Thailand.

Please do not let your bar gained knowledge cloud the facts in such important issues.

So to clarify... we can own (condos in our own name) and effectively control property (Usufruct, Lease and even legitimate company structures) here - a fact that perhaps you should do some research on before typing nonsense!

[ALFREDO]

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?

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

-Phronesis-

There must be a miss understanding.

I think we are discussing here the right of the OP to live in a house he built-furnished-and paid in a land-garden he fenced and landscaped with his money.

That could be a couple of Millions of Baht. Not 180 Thousand.

[Khun Jean]

Leases and usufructs are 'real rights'. There is no 'interpretation' and as such precedence is nothing to be concerned about.

Sure in a very seldom occasion that a judge makes the wrong decision with lease and usufruct contracts, takes time to correct it but corrected it will be!

'Real rights' are among the clearest form of contracts and are very common. It is not some concoction by a lawyer that has to be studied and interpreted.

A usufruct using the contract form that you can get at the landoffice is the best.

Again, can not stress this point enough!, not use a contract drawn up by a lawyer for this!!

If there is a need to have some other clauses put them on a separate contract! This will also make it very clear to you that the seperate contract only holds things that can be expected from the current counterparty. If land gets sold those clauses will not be going to the next owner!

The reason is that the one you get at the landoffice is made by the government and is the strongest kind of contract you will be able to have.

A lawyer always feels the need to add things to a contract that are not real rights and will make the contract weaker!

There is absolutely no doubt with a usufruct, and ones that are granted to you by someone who is not your spouse is really textbook perfect.

If the timeline was, mil granted usufruct, you paid the 180.000, then land transferred to your wife i can not see any problem for you.

Sure they may try, you just show the back of the landtitle where your name is written down. End of that story!

Now the story of the house. I expect that to be a 'sin somros' (property acquired during marriage). You will have to be ready for a 50% share to be paid.

Have a look at this pdf for an explanation about that:

http://www.attorneythai.com/pdf/015.pdf

Edited September 9, 2012 by Khun Jean

[Fanlight Fanny]

Thank you , folks.

I have no objection to a 50/50 split of everything with my wife. All I want is to keep the Usufruct. I do not want, however, to give her half of the value of everything and also compensate her for the Usufruct (as one lawyer suggested to me).

My guess is that she does not want to go to court now because of what I have found out since April about her ‘misbehaviour’. She knows that I know about it! (or at least some of it); therefore, this ‘denunciation’ of her by her mother for being a ‘bad daughter’ from December onwards and blaming it on me is an effort to clear her daughter of all ‘moral faults’ if it has to go to Court (as well as trying to have the Usufruct cancelled).

My lawyer warned me about hassle even if I retain the Usufruct and continue to live on the land and in the house. He said that my mother-in-law might still try recourse to the Courts (and this is a woman my wife always tells me is ‘very poor’!). He advises me to talk to my wife privately about (possibly)’selling’ the Usufruct to her – but how legally watertight this might then be, I don’t know e.g. would it stop all future money claims? Also, I cannot think yet how to try to fix a money figure (Full value of house and land? Or 50% of that? Or the rental charge for a comparable house over 10 or 15years? (I’m 62 years old).

A can of worms.

[Fanlight Fanny]

(sorry, my Post above was 'small size'!) Thank you , folks.

I have no objection to a 50/50 split of everything with my wife. All I want is to keep the Usufruct. I do not want, however, to give her half of the value of everything and also compensate her for the Usufruct (as one lawyer suggested to me).

My guess is that she does not want to go to court now because of what I have found out since April about her ‘misbehaviour’. She knows that I know about it! (or at least some of it); therefore, this ‘denunciation’ of her by her mother for being a ‘bad daughter’ from December onwards and blaming it on me is an effort to clear her daughter of all ‘moral faults’ if it has to go to Court as well as trying to have the Usufruct cancelled.

My lawyer warned me about hassle even if I retain the Usufruct and continue to live on the land and in the house. He said that my mother-in-law might still try recourse to the Courts (and this is a woman my wife always tells me is ‘very poor’!). He advises me to talk to my wife privately about (possibly)’selling’ the Usufruct to her – but how legally watertight this might then be, I don’t know. Also, I cannot think yet how to try to fix a money figure (Full value of house and land? Or 50% of that? Or the rental charge for a comparable house over 10 or 15years? (I’m 62 years old).

[Khun Jean]

The 50% would be over the house only. The usufruct is a right you have, you can not transfer that, meaning you would be unable to sell it, as such it has only value for you.

If anyone else wants control over the land it is you who have to be paid!!

So never ever 'compensate' the usufruct. It is the other party who has to compensate you if you give up the usufruct!

Value of the house is just the building, if you still have the bills paid when building the house you would even be able to proof that you paid for it all, and that can be used as leverage again because probably you used money that you had saved before you got married, meaning it can be considered yours!

In practice the chances that she will end up with nothing is much higher than it will happen to you.

If she was the one doing 'bad' i would not even suggest an amount. I would start with 'what about you get nothing', and go from there.

The maximum would be 50% of the house, which in itself is not worth much because you control the land. Selling a house without land is close to impossible. The market value would be close to zero.

Using a calculation based on rent is also not in order, you live in it so it is not available for rent.

Again, if someone should be compensated it would be you!

The lawyer suggesting 'selling' the usufruct would mean you giving up your right. It would be the silliest thing you could do, because it is your only strength.

Thais always look for a 'middle way', for that reason you should start on your end from zero and she probably want all. If you go offer an amount halfway from the start the 'middle ' is suddenly somewhere around 25% for you and 75% for her.

Again, they can not legally get you off the land. Stick with that and offer small tokens and stay friendly but very firm.

If you have funds on Thai banks, start moving it out of reach.

[LivinLOS]

The 50% would be over the house only. The usufruct is a right you have, you can not transfer that, meaning you would be unable to sell it, as such it has only value for you.

If anyone else wants control over the land it is you who have to be paid!!

So never ever 'compensate' the usufruct. It is the other party who has to compensate you if you give up the usufruct!

Value of the house is just the building, if you still have the bills paid when building the house you would even be able to proof that you paid for it all, and that can be used as leverage again because probably you used money that you had saved before you got married, meaning it can be considered yours!

In practice the chances that she will end up with nothing is much higher than it will happen to you.

If she was the one doing 'bad' i would not even suggest an amount. I would start with 'what about you get nothing', and go from there.

The maximum would be 50% of the house, which in itself is not worth much because you control the land. Selling a house without land is close to impossible. The market value would be close to zero.

Using a calculation based on rent is also not in order, you live in it so it is not available for rent.

Again, if someone should be compensated it would be you!

The lawyer suggesting 'selling' the usufruct would mean you giving up your right. It would be the silliest thing you could do, because it is your only strength.

Thais always look for a 'middle way', for that reason you should start on your end from zero and she probably want all. If you go offer an amount halfway from the start the 'middle ' is suddenly somewhere around 25% for you and 75% for her.

Again, they can not legally get you off the land. Stick with that and offer small tokens and stay friendly but very firm.

If you have funds on Thai banks, start moving it out of reach.

That is precisely the mindset and outlook I would have.. Its yours, you can probably prove you paid for the building of the house and her legal recourse is fairly minimal if you get a good hard nosed lawyer, not one whose just being paid to come to a deal in giving away your assets.

What you have not clearly stated is 'where' is this land. If this land is in a rural village, surrounded by her family, I would have very little interest in trying to stay there, in that situation looking to a negotiated sale and division is probably the outcome. Its for this reason I would never buy land close to any of my wifes family unless it was simply as a gift to my wife and purely her asset. The family hassle and problems are just greater than any legal right will cover.

[TommoPhysicist]

You need to get a new lawyer, this one is hopeless and doesn't seem to know any Thai law.

If she's been 'playing away', you can take her and the other guy to court for damages (adultery is illegal in Thailand) and claim a small fortune in damages off both her and him.

Edited September 10, 2012 by TommoPhysicist

[oracle]

Leases and usufructs are 'real rights'. There is no 'interpretation' and as such precedence is nothing to be concerned about.

Sure in a very seldom occasion that a judge makes the wrong decision with lease and usufruct contracts, takes time to correct it but corrected it will be!

'Real rights' are among the clearest form of contracts and are very common. It is not some concoction by a lawyer that has to be studied and interpreted.

A usufruct using the contract form that you can get at the landoffice is the best.

Again, can not stress this point enough!, not use a contract drawn up by a lawyer for this!!

If there is a need to have some other clauses put them on a separate contract! This will also make it very clear to you that the seperate contract only holds things that can be expected from the current counterparty. If land gets sold those clauses will not be going to the next owner!

The reason is that the one you get at the landoffice is made by the government and is the strongest kind of contract you will be able to have.

A lawyer always feels the need to add things to a contract that are not real rights and will make the contract weaker!

There is absolutely no doubt with a usufruct, and ones that are granted to you by someone who is not your spouse is really textbook perfect.

If the timeline was, mil granted usufruct, you paid the 180.000, then land transferred to your wife i can not see any problem for you.

Sure they may try, you just show the back of the landtitle where your name is written down. End of that story!

Now the story of the house. I expect that to be a 'sin somros' (property acquired during marriage). You will have to be ready for a 50% share to be paid.

Have a look at this pdf for an explanation about that:

http://www.attorneyt...com/pdf/015.pdf

FYI a lease is not a real right because then you would find it in the civil and commercial code in book 4 property instead of book 3 specific contracts. Usufruct is a real right therefore found in book 4 property therefore usufruct is not a contract. The distinction between the 2 is important because section 1469 'the right to cancel any agreement' does not apply to usufructs because usufruct is again not a contract. Usufruct in a marriage is not bullit proof but this has other reasons.

You expect the house to be sin somros? Not a chance.

This is what I think is the OP's situation:

1 the OP has built a house without protection on land of the mother in law.

2 upon completion of the house the mother took out a loan on the land and house

3 foreigner then wanted protection but needed to pay of the loan first

4 after payment of the loan and registration of the usufruct over the land and house the mother transferred the land and house to her daughter as a personal property.

5 recently the daughter transfered (i understand following a court order?) the land and house back to her mother who now again owns the land and house

6 in this stage i think they are trying to get more money out of him

7 in the end they will try to terminate the usufruct. Just because the OP has his name on the title deed does not mean it cannot be removed. Same as the mother was able to get her daughter's name of the title as the owner she could just as well be able to do the same with the usufruct.

Maybe the OP can confirm the above?

[LivinLOS]

FYI a lease is not a real right because then you would find it in the civil and commercial code in book 4 property instead of book 3 specific contracts. Usufruct is a real right therefore found in book 4 property therefore usufruct is not a contract. The distinction between the 2 is important because section 1469 'the right to cancel any agreement' does not apply to usufructs because usufruct is again not a contract. Usufruct in a marriage is not bullit proof but this has other reasons.

Thats interesting and the first time I have read that.. I was told something along those lines (usufruct was firm) by a Thai lawyer but I discounted the statement due to a lack of trust.

So if the right to cancel the agreement is not the risk, what are the other reasons (division of assets ??)

You expect the house to be sin somros? Not a chance.

Is there a way to make it so ?? Lease or full ownership by a 3rd party springs to mind.

[oracle]

FYI a lease is not a real right because then you would find it in the civil and commercial code in book 4 property instead of book 3 specific contracts. Usufruct is a real right therefore found in book 4 property therefore usufruct is not a contract. The distinction between the 2 is important because section 1469 'the right to cancel any agreement' does not apply to usufructs because usufruct is again not a contract. Usufruct in a marriage is not bullit proof but this has other reasons.

Thats interesting and the first time I have read that.. I was told something along those lines (usufruct was firm) by a Thai lawyer but I discounted the statement due to a lack of trust.

So if the right to cancel the agreement is not the risk, what are the other reasons (division of assets ??)

You expect the house to be sin somros? Not a chance.

Is there a way to make it so ?? Lease or full ownership by a 3rd party springs to mind.

You can find all the answers in the chapter property of husband and wife 1461 to 1493 civil and commercial code. And read section 1469 in relation to section 1465 and 1468:

Section 1465. Where the husband and wife have not, previous to their marriage, concluded a special agreement concerning their properties, the relations between them as regards to their properties shall be governed by the provisions of this Chapter.

Section 1468. Clauses in the ante-nuptial agreement shall have no effect as regards the rights of third persons acting in good faith irrespective of whether they be altered or cancelled by the order of the Court.

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.

[oracle]

To add to my reply above when an agreement concerning property of husband and wife is made during the marriage and cancelled again you simply fall back on how property of husband and wife is arranged in the above mentioned chapter of the civil and commercial code. This does not always have to be bad.

[Khun Jean]

Welcome back Oracle, long time since you posted. Everything well?

FYI a lease is not a real right because then you would find it in the civil and commercial code in book 4 property instead of book 3 specific contracts. Usufruct is a real right therefore found in book 4 property therefore usufruct is not a contract. The distinction between the 2 is important because section 1469 'the right to cancel any agreement' does not apply to usufructs because usufruct is again not a contract. Usufruct in a marriage is not bullit proof but this has other reasons.

You are correct of course. I used lease and usufruct in the same sentence while it should be only the usufruct.

In my understanding a usufruct is the result of a contract.

It can be argued that a usufruct as being a result of a contract with your spouse is not valid from the start, but it is accepted by the landoffice. The usufruct should then be common property but this conflicts again that you can not give a usufruct to yourself. With a spouse it is only of value in case the spouse dies, a will is not a good choice when you are a foreigner.

It gets murky and open for intepretations very quick. Therefore a usufruct with someone who is not your spouse or one that includes a third party are the only ones that will have value.

Other forms like superficies which allow inheritance would be even better but getting that through a landoffice is something i never succeeded in, it is to much against the spirit of the law because effectively the land would then be in foreign hands for an undetermined time.

You expect the house to be sin somros? Not a chance.

Your scenario is one that can be true as most of the time it happens in that sequence.

Without a good timeline from the OP it is unknown.

btw. I get most of my info from official government websites and for an easier organised summary http://www.samuiforsale.com/real-rights/ and other pages on it.

[bangkokburning]

Bulldoze the house and set the crops ablaze. Move to Philippines.

Some men just want to see the world burn...

[cheeryble]

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?

Can't be bothered typing Thai, but believe it's

Sit-ti-gep-gin (right to store/keep and consume/eat)

[cheeryble]

Khun Jean

Very interesting advice about extending usufruct agreements with an "addendum" contract, and sticking to the land dept form for the main usufruct.

That could be very useful, thankyou.

(I once gave a potential seller 300k฿ to pay off a bank loan while we waited for exchange and stop them selling elsewhere.

My lawyer asked a large amount for the registration of the loan. I used a standard form bought in the copy shop opposite the LO for three.....or was it six?....baht. It worked and I was repaid even though the sale did not happen)

Out of interest, could an "extra" to the usufruct contract stipulate that you have the right to quarry the land and sell the earth fill? Not only can this earth be quite valuable, it would be a very strong disincentive to a usufructor from causing trouble. If they stay sweet at least sometime in the future they will get a flat piece of land back instead of a hole which may cost a million baht to fill and makes the land worth very little.

Also love your later advice

"If you have funds on Thai banks, start moving it out of reach."

Ha-ha!

Thanks again

Cheeryble

Edited September 13, 2012 by cheeryble