Usufructs being denied now?

[Mencken]

So, best to get a usufruct before land transferred to wife and that moves with title.

Usufruct may be null on divorce depending on...

Province

Whim of judge

Both

Usufruct can be used for...

Land-House

Land only

Condo used

Condo new

All of above

Edited August 3, 2014 by Mencken

[noendtoit]

How do you get a usufruct? At a moment in time would not the wife own the property fully and clear - or would you have the usufruct signed first, then the title paid and turned over?

Upon divorce, would not the wife still be entitled to half or all really? Is this a common asset, does husband have any claim on this? Maybe not land but forced sale and cash settlement?

Would this not force you to sell or sorry, it is already her property 100%, but you have full rtlights and control till death? Same for condos yes?

How is it that you could boot your wife out and still live in the property? Does this allow for full control of the property.

Of course, you'd rent it out because if you lived there she'd send some thugs round to hasten her full ownership.

Please take a look at wikipedia and you can get all the answers: http://en.wikipedia.org/wiki/Usufruct

A usufruct is similar to a life estate in the US or UK. You can Google that. If you are granted a valid lifetime usufruct and it is recorded in the proper office, you can live on the land as if you owned it with exclusive rights to control it, earn rents from it and everything else, so long as you don't destroy it. And yes, you could boot out your wife. She has no rights against a valid usufruct. And you have this right for so long as you shall live. Upon your death, full control instantly returns to the title holder.

If the usufruct is valid and recorded, nobody, not your wife or anyone else can take it away from you. As said above, a usufruct granted by your wife may not be valid in divorce; to be ironclad it needs to be granted by a stranger to the marriage.

And now, I am outta here. this subject has been beaten to death. For anyone who thinks there is not enough information here, they should sit down with and pay a real estate lawyer who can speak English fluently. Otherwise, you're just pissing into the wind.

[oracle]

Here's the real deal. That lawyer on the other thread is correct -- sort of. If you sat down with him or her, you would get the true answer. The trouble with short answers are all the exceptions. In some places a usufruct between a husband and wife is inviolable. In other places it is not. Why? Because appeals courts have ruled on the question in divorce cases. The decisions are split, some courts say the usufruct between spouses is inviolable. Others say it is a contract made during marriage that is voided upon divorce. The high court has never ruled in the question so the issue will remain unclear until it does.

I think it is much more simple and 100% sure that a court can void a usufruct created during the marriage. A court could do so in a contested divorce based on the circumstances and wishes of the parties or the court could keep the usufruct in place a part of the final divorce settlement.

[Sophon]

The wife can only cancel the usufruct in case of a divorce, at other times she will not be able to start a court case for it.

When she wants a divorce and tries to get as much as possible out of it, she will be in the court already, so adding the cancellation of the usufruct is just a formality at that point.

I don't believe that is true at all, the civil code clearly says that any contract entered into between spouses can be cancelled at any time during the marriage by either spouse.

Sophon

Read the link I posted in post # 32

When the usufruct is registered with the land office it is in essence not a contract that can be terminated by your wife.

Usufruct is a real right and as a real property right governed by the civil and commercial code book IV PROPERTY and not book III CONTRACTS. This means that once the right of usufruct is registered it is more or less guaranteed by law and to terminate the usufruct your wife would need 1 your consent or 2 a court order to have it removed from the title deed.

BUT

Section 1469 (laws governing property between husband and wife) does apply and when you would divorce the usufruct could be simply terminated by a court as part of the division of assets.

I did read the link, and nowhere in that answer does it say that a usufruct between spouses cannot be cancelled during the marriage, just that it would require a court order (which is what I said and why I believe it could possible serve as a psychological deterrent).

Yes, in case the marriage breaks down getting the usufruct cancelled during the divorce wouldn't be complicated. But I was more thinking about a situation such as your spouse being under pressure from family to put up the chanote as security for some relatives bank loan. Without the usufruct she could possibly do this without you even knowing, but with the usufruct it would require her to go to court to have it cancelled, which she probably wouldn't be willing to do.

Sophon

[Mencken]

Thanks to everyone contributing, esp noendtoit.

[UKJASE]

Ask The Lawyer answers our concerns re his / her first answer

http://www.thaivisa.com/forum/topic/748327-question-re-usufruct

[cheeryble]

Thanks for asking him my question seems to have disappeared.

He says what we've been saying.

Fact is the usufruct is strong but it's origin is challengeable IF contracts cannot be made between spouses which we are still not quite sure of.

He finishes with:

"The only way for her to be able to cancel is by obtaining a court order, in which case you will have a chance to object such attempt"

True of course, but an unhappy outcome if the court says contracts between spouses are not permitted so the usufruct is null and void.

(Though again, funds from a forced sale should end up with the fund-provider. And you've got rid of the turncoat....maybe not so bad!

Too much hassle for me.)

Sent from my iPad using ThaiVisa app

Edited August 7, 2014 by cheeryble

[TallGuyJohninBKK]

I'm not sure why there's so much debate here on this issue.

At least it Thailand, the answer doesn't depend on local judges or court rulings to interpret the issue one way or the other. And rulings from other countries are irrelevant, at least insofar as a potential Thailand divorce is concerned.

There is statutory language from the Thai Civil and Commercial Code on the subject that is VERY clear, at least as regards to legal agreements executed during a marriage between a husband and a wife.

And the statutory language clearly says, any such husband-wife agreements can be voided by either party, unilaterally, at any time during the marriage or within one year of its dissolution -- provided that such voiding doesn't impair the legal rights of third parties.

The pertinent language is quoted above in post 51:

http://www.thaivisa.com/forum/topic/746694-usufructs-being-denied-now/?p=8185435

There really doesn't seem to be much room for interpretation there.

Also, the statute doesn't say husbands and wives can't have contracts together. It just says, either part can bail out during the marriage or within one year thereafter. For example, if a party waited more than one year after a divorce to challenge or cancel the usufruct, presumably, they'd be denied.

It's not exactly a new or unusual thing for a Thai attorney to give bad or erroneous advice -- as many members here can attest from personal experience.

Edited August 7, 2014 by TallGuyJohninBKK

[donx]

I'm not sure why there's so much debate here on this issue.

At least it Thailand, the answer doesn't depend on local judges or court rulings to interpret the issue one way or the other. And rulings from other countries are irrelevant, at least insofar as a potential Thailand divorce is concerned.

There is statutory language from the Thai Civil and Commercial Code on the subject that is VERY clear, at least as regards to legal agreements executed during a marriage between a husband and a wife.

And the statutory language clearly says, any such husband-wife agreements can be voided by either party, unilaterally, at any time during the marriage or within one year of its dissolution -- provided that such voiding doesn't impair the legal rights of third parties.

The pertinent language is quoted above in post 51:

http://www.thaivisa.com/forum/topic/746694-usufructs-being-denied-now/?p=8185435

There really doesn't seem to be much room for interpretation there.

Also, the statute doesn't say husbands and wives can't have contracts together. It just says, either part can bail out during the marriage or within one year thereafter. For example, if a party waited more than one year after a divorce to challenge or cancel the usufruct, presumably, they'd be denied.

It's not exactly a new or unusual thing for a Thai attorney to give bad or erroneous advice -- as many members here can attest from personal experience.

So the simple solution for those concerned about a spouse canceling the usufruct agreement would be to include a third party. Anyone have ideas on ways of doing this?

Sent from my iPhone using ThaiVisa app

[noendtoit]

I'm not sure why there's so much debate here on this issue.

At least it Thailand, the answer doesn't depend on local judges or court rulings to interpret the issue one way or the other. And rulings from other countries are irrelevant, at least insofar as a potential Thailand divorce is concerned.

There is statutory language from the Thai Civil and Commercial Code on the subject that is VERY clear, at least as regards to legal agreements executed during a marriage between a husband and a wife.

And the statutory language clearly says, any such husband-wife agreements can be voided by either party, unilaterally, at any time during the marriage or within one year of its dissolution -- provided that such voiding doesn't impair the legal rights of third parties.

The pertinent language is quoted above in post 51:

http://www.thaivisa.com/forum/topic/746694-usufructs-being-denied-now/?p=8185435

There really doesn't seem to be much room for interpretation there.

Also, the statute doesn't say husbands and wives can't have contracts together. It just says, either part can bail out during the marriage or within one year thereafter. For example, if a party waited more than one year after a divorce to challenge or cancel the usufruct, presumably, they'd be denied.

It's not exactly a new or unusual thing for a Thai attorney to give bad or erroneous advice -- as many members here can attest from personal experience.

So the simple solution for those concerned about a spouse canceling the usufruct agreement would be to include a third party. Anyone have ideas on ways of doing this?

Sent from my iPhone using ThaiVisa app

Sure. Snce the usufruct owner basically has all the rights of an owner, he/she can lease the land to somebody else. That lease CANNOT be voided. If the usufruct is voided, the lease remains intact. You could sublet from the person you leased to.

But as I said above, if you simply get the usufruct from a stranger to the marriage (a third party) it can't be voided and all the talk about agreements between husbands and wives (and this whole discussion) becomes irrelevant. Don't get it from you wife; get it from a third party. If you wife already owns the land, use a straw man. If you and your wife are buying the land, get it from the seller before title passes to the wife. Simple; end of story.

Edited August 9, 2014 by noendtoit

[nickcar]

I'm not sure why there's so much debate here on this issue.

At least it Thailand, the answer doesn't depend on local judges or court rulings to interpret the issue one way or the other. And rulings from other countries are irrelevant, at least insofar as a potential Thailand divorce is concerned.

There is statutory language from the Thai Civil and Commercial Code on the subject that is VERY clear, at least as regards to legal agreements executed during a marriage between a husband and a wife.

And the statutory language clearly says, any such husband-wife agreements can be voided by either party, unilaterally, at any time during the marriage or within one year of its dissolution -- provided that such voiding doesn't impair the legal rights of third parties.

The pertinent language is quoted above in post 51:

http://www.thaivisa.com/forum/topic/746694-usufructs-being-denied-now/?p=8185435

There really doesn't seem to be much room for interpretation there.

Also, the statute doesn't say husbands and wives can't have contracts together. It just says, either part can bail out during the marriage or within one year thereafter. For example, if a party waited more than one year after a divorce to challenge or cancel the usufruct, presumably, they'd be denied.

It's not exactly a new or unusual thing for a Thai attorney to give bad or erroneous advice -- as many members here can attest from personal experience.

So the simple solution for those concerned about a spouse canceling the usufruct agreement would be to include a third party. Anyone have ideas on ways of doing this?

Sent from my iPhone using ThaiVisa app

Sure. Snce the usufruct owner basically has all the rights of an owner, he/she can lease the land to somebody else. That lease CANNOT be voided. If the usufruct is voided, the lease remains intact. You could sublet from the person you leased to.

But as I said above, if you simply get the usufruct from a stranger to the marriage (a third party) it can't be voided and all the talk about agreements between husbands and wives (and this whole discussion) becomes irrelevant. Don't get it from you wife; get it from a third party. If you wife already owns the land, use a straw man. If you and your wife are buying the land, get it from the seller before title passes to the wife. Simple; end of story.

When i saw a reply to someone else on the lawyer forum saying a land with usufruct cant be sold, i asked the lawyer if he meant it is dificult or is forbidden to be sold. His respnse was that it is forbidden to be sold. I found that hard to beleive and planned to check with the land department but somebody knowledgable here may know the answer???

[cheeryble]

When i saw a reply to someone else on the lawyer forum saying a land with usufruct cant be sold, i asked the lawyer if he meant it is dificult or is forbidden to be sold. His respnse was that it is forbidden to be sold. I found that hard to beleive and planned to check with the land department but somebody knowledgable here may know the answer???

I'd stake a finger that he's wrong.

This non lawyer says the land can be sold but the deeds must still carry "real" liens like a usufruct to completion.

Edited August 9, 2014 by cheeryble

[cheeryble]

I posted my suggestion to Ask a Lawyer a week or two ago and just got the reply which seems to confirm

(Honoured indeed that the question was "liked" by Somsak Lawyer :-) and thanks to him for getting the information back to us.....this is a big deal for some people)

Cheeryble:

I have heard that in law husband and wife are one entity.

This would mean contracts between registered man and wife are not possible and not legally valid.

Is this so and does it apply to usufruct and leases?

In other words can a man or a wife make a usufruct contract and get a 100% solid lien registered against it to protect the usufructee?

Looking forward to the reply as this is the subject of much interest in a Thaivisa thread.

Thanks.

Somsak Lawyer:

Normally we advise clients that a usufruct and lease should be made before marriage if possible. Lease on the other hand cannot be made after marriage, while usufruct can, however with usufruct issues regarding divorce was raise on this past forum http://www.thaivisa.com/forum/topic/748327-question-re-usufruct/]http://www.thaivisa....on-re-usufruct/

Technically a usufruct can be cancelled (much process and time) after divorce of no longer than 1 year, but if that was done the land would become marital property and has to be shared 50/50 between the husband and wife. You cannot make a contract with your wife to secure the usufruct as after marriage the wife and husband are considered as one entity.

Edited August 19, 2014 by cheeryble