Buying a house, leasing the land

[cheeryble]

I think there may be inaccurate info above.

A registered lease is a real right which transfers with sale of the property.

(Personally I'd prefer a usufruct for the cheapness and ....hopefully....longer life)

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[bangkoklawyer24]

A registered lease is a real right which transfers with sale of the property.

(Personally I'd prefer a usufruct for the cheapness and ....hopefully....longer life)

The lease is just a lease. The registration does not change anything.

https://www.linkedin.com/pulse/article/20140925020252-11220814-black-magic-in-thailand

The lease is not a real right. The transfer is limited as mentioned in the law:

"A contract of hire of immovable property is not extinguished by the transfer of ownership of the property hired. The transferee is entitled to the rights and is subjected to the duties of the transferor towards the hirer."

[cheeryble]

A registered lease is a real right which transfers with sale of the property.

(Personally I'd prefer a usufruct for the cheapness and ....hopefully....longer life)

The lease is just a lease. The registration does not change anything.

https://www.linkedin.com/pulse/article/20140925020252-11220814-black-magic-in-thailand

The lease is not a real right. The transfer is limited as mentioned in the law:

"A contract of hire of immovable property is not extinguished by the transfer of ownership of the property hired. The transferee is entitled to the rights and is subjected to the duties of the transferor towards the hirer."

Doesn't your last quote exactly contradict your statement that the lease is not a real right?

Isn't your quote the definition of what a real right is.....one that is cemented to the property rather than the person?

Is it not the case that a lease is not a real right.....it can be broken after transfer (though with possible repercussions)....UNTIL it is registered, at which point it becomes a real right and the obligations under the lease transfer?

Are you suggesting an owner can sell a right like a lease for mucho dinari then just transfer ownership to his twin brother who then can do as he wishes with the property including sell or better still re-lease to a mile-long chain of potential lessors one by one?

(Am I in the wrong business?)

At the transfer does the Land Office just cancel the encumbrance as if it never existed? If so why did they ever put it there in the first place?

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Edited October 1, 2014 by cheeryble

[bangkoklawyer24]

Doesn't your last quote exactly contradict your statement that the lease is not a real right?

Isn't your quote the definition of what a real right is.....one that is cemented to the property rather than the person?

Is it not the case that a lease is not a real right.....it can be broken after transfer (though with possible repercussions)....UNTIL it is registered, at which point it becomes a real right and the obligations under the lease transfer?

Sorry, but you are wrong. The laws of Thailand just say that a lease is not broken by a ownership transfer. That is the law in most countries and has nothing to do with a right-in-rem.

There are also laws that an employment contract is not broken by a transfer of the business, but no one would think an employment is a real right.

The survival of the lease is true as well in first three years without any registration. The registration does not make this better or different.

[cheeryble]

The lease is just a lease. The registration does not change anything.

Doesn't the registration ensure that anyone buying a property will necessarily know that it is encumbered with leasehold which he will be bound by and which as it is held by the LO is an immutable point of reference?

That seems a substantial matter.

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Edited October 1, 2014 by cheeryble

[oracle]

The lease is just a lease. The registration does not change anything.

Doesn't the registration ensure that anyone buying a property will necessarily know that it is encumbered with leasehold which he will be bound by and which as it is held by the LO is an immutable point of reference?

That seems a substantial matter.

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You can call it a real right or contract but technically real rights under civil law in thailand are servitude, superficies, habitation, usufurct, a lease is a special type of contract. It's just in the system of civil law, one is in essence connected to a person (a contract) the other is in essence connected to a property (real right), but real rights can also be connected to specific person and a contract can be connected to a property, is not such a strict difference.

What is important with a lease contract is what are the real lease rights because these are protected under section 569 (transfer of ownership does not break the rent) and what parts of the contract are in essence personal to the parties (just personal between the parties and lost upon tranfer of ownership and death). To understand section 569 you must be able to have access to the numurous court and supreme court judgements on this subject. This is not in the favour of foreigners buying property under a lease. Using common sence when you buy a property under a lease you should understand that you cannot rely on all promises made by the seller in the lease. Some things are really rubbish to sell something and suggest something that is not lease, or are not real protected real lease rights, even when the land office accepts registration of the contract.

[bangkoklawyer24]

The lease is just a lease. The registration does not change anything.

Doesn't the registration ensure that anyone buying a property will necessarily know that it is encumbered with leasehold which he will be bound by and which as it is held by the LO is an immutable point of reference?

That seems a substantial matter.

Yes, exactly. You are correct. It is only for the benefit of the new property buyer, but not for any benefit to the lessee. And that is what the legal article I mentioned says.

Edited October 2, 2014 by bangkoklawyer24

[cheeryble]

Thanks for the comments...

Maybe I have discovered the source of any disagreement.

Are you saying that the lease as a whole and including all its contents (such as right to renewal) is not protected as a real right?

I'd certainly agree with that.

But even at the same time you seem to be agreeing that the main element......the hire of the property.....if undisputed as following the statutes ie say a 30 year lease with rent properly paid.....is at least a de facto real right as it is following the property?

This is the only thing of which I speak not any frills which may be open to dispute in the law.

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Edited October 3, 2014 by cheeryble