Marriage And Usefruct

[Nadia 2]

A registered lease - of course - is a secure option to protect your rights for 30 years. The foreigner should in my opinion register the house in his own name and via a last will determine what should happen with the house after he or she dies.

I read some previous options with mortgages, however I do not trust the mortgage option as a solution to protect a foreign's interest in the land and or the house and I do not think it will be an enforceable option to secure renewal options (after 25 or 30 years) in a case of a lease.

It is a very poor option when married to a Thai national. It has several drawbacks and insecurities, but in the first place it does not give the foreigner any direct interest in the land.

In my opinion, when married to a Thai national, a usufruct could be the preferred option. An immovable property may be subjected to a usufruct by virtue of which the usufructuary is entitled to the possession, use and enjoyment of the property. The Land offices will register the usufruct in case of marriage to a Thai national who will own the land.

I know many Thai lawyers and foreign legal consultants are not aware of this option, so you may have to explain it to them... In the way of legal fees it is probably also not that interesting for the lawyers....

Dragonman suggests based on historic rights that the maximum term like lease rights could be for 30 years only. I do not agree, maybe in certain circumstances this may be the case, but not in general and even then the usufruct is in my opinion a better option and a stronger right than lease.

In European countries with a legal system based on the French Civil Code usufructs are often used in a last will to protect a surviving (second) spouse who does not inherit but receives by last will a usufruct over the property. In this way the surviving partner/ spouse is fully protected (for life). The children out of a first marriage will inherit but are only entitled to the property after the second spouse or partner dies.

With a usufruct there are less tax implication as with a 30-year lease and in my opinion it is for life and not only for 30 years. If the foreigner owns the house outright it is a perfect option.

The drawback is that it will end in the event of death of the usefructuary and the usefructuary cannot sell the property - but can lease out the property.

Supreme court judgment 2297/1998; 'the lessor does not have to be the owner of the property. Therefore the usefructuary can rent out the land. Although in the event of death of the usefructuary within the lease term, only the usufruct will be terminated but not also the lease'.