Leased Land from Life's Usufructuary

[SOMeTOM]

If an alien currently has a life's usufruct from a thai land's owner, manage to lease his land or just part of it to a third party, at the end of lets say a 3 or 30 years lease, can the land go back to the original usufructuary or the land has to go back to the land's owner?

Edited October 17, 2014 by SOMeTOM

[Langsuan Man]

Your question is not very clear but the jist is that it would have to be stated in the wording of the usefruct whether or not it is transferable to a third party. But most land owners would not include that clause since they want it and whatever is now on it, when you die

A long term lease is different since it specifies a certain number of years, not to exceed thirty years under the Thai Civil Code and could be written allowing a third part to "sub lease" it

[SOMeTOM]

Your question is not very clear

Okay, i will elaborate it a bit.

One day Mr Freetchai saw Mr Guava on the road, and ask to him " would you like to use the fruits of my land? ", Mr Guava replies "why not? After all, i feel comfortable with fruits" , so they stipulate a usufruct's contract for the life of Mr Guava, which clearly states that he can do any possible use of this piece of land, as long as it allowed by the low, so, no Beer-Bar for Mr Guava, but Bar-B-Q will be okay.

Mr Guava then decides that he would like to take a break or two from that place, but needs to find out if he can get it back after, so he thinks about stipulating a lease with a passer-bye, but he doesn't know if the low will allow him to get back the usufructed land at the end of this lease, or if the low states that the land has to go back to Mr Feetchai(the land owner) instead, even if Mr Guava is still alive and then the original life's usufruct contract should be still in place in his view.

Any takers?

[RKASA]

Like the other post says;

If your current lease allows sub lease you get it back for the remainder of your lease.

The sub lease is subject to conditions that you are subject to - you cannot allow them to do that which you are not allowed to do.

The key is the - if - your lease will allow it in writing, Otherwise you may find yourself in breach and lose your lease too.

I would say if it is not clear in your current agreement then don't do it without a written amendment added to your current agreement, but I can't see an amendment getting past the land owner that would prefer to lease it himself to the new party and turn a current lease into a middle man.

[SOMeTOM]

Sorry to reiterate, but, i don't have a "lease", mine is a "life's usufruct contract" (my life), i don't want to transfer the usufruct as i understand that this will not be possible, but made a lease agreement with someone else, which obviously will be restricted to the former usufruct's contract limitations and also any possible other limits we might both agree with.

Also, in case of a breach of contract by this new leasee (NOT agreed by the usufructuary), will the land get back to the usufructuary or to the land's owner??

[RKASA]

Ah - I see said the blind - usufruct must have guide lines set somewhere with regard to use - as leasing part are all would be a use of the property. I do know of a person that has usufruct and a home they built on it that he has rented i.e. leased out on a long term several years and they don't live there at all anymore i.e. overseas - I assume they get it back and won't lose it or maybe no one really knows that cares, it could be a fly by the seat of pants sort of thing they are doing for a few years till they come back. Would be interesting to know for sure where that one lays.

[marcusd]

I would say yu ned to have a solicitor investigate the terms of your USUFRUCT lease to see if there is any clause or IMPLIED clause to prohibit you from sub leasing the land during your life time.

Implications = implied law can be what may stop you

[SOMeTOM]

Marcusd, a legal's firm has already been involved for the creation of this document, where basically the Land's Owner gave his full consent for any possible legal use of the land.

My doubt is if when stipulating a lease, at the end of it (or break of the rules not agreed by the usufructuary), the land has to go back to the LO or the usufructuary.

[donx]

I'm no lawyer nor have I entered into an usufruct myself but based upon everything I have read about them my understanding is that the usufruct will remain intact until you die (or violate the usufruct agreement which I don't believe that you are doing). So if you decide to rent the place to someone for 2 years, then after the 2 years you will still be able to either use it yourself or rent it out again.

As others have indicated, I have heard that conditions on an usufruct can be imposed that would prevent you from renting it out. And there may be an unwritten assumption that land with an usufruct can't be leased out to a third party without explicitly stipulating this, So long as you are sure that you can lease out the property without violating the usufruct, then you as the usufructuary will retain control over the property after the lease expires. What happens to the lease if you expire first is something I don't know the answer to. I assume that you will not be able to lease the property for more than 3 years since anything longer than that would require being registered on the land title in a similar way that the usufruct is registered. But I don't know that the land owner needs to honor a lease agreement that you made with someone if you die before the lease expires.

I'll let the experts respond if I'm incorrect.

[Langsuan Man]

I am going to wait for the OP's question to be answered in the Ask the Lawyer forum here:

http://www.thaivisa.com/forum/topic/769902-whom-get-the-usufructeds-land-back-at-endor-break-of-a-lease/

[SOMeTOM]

What happens to the lease if you expire first is something I don't know the answer to.

I have the answer to that, but not yet to my original query, so that's why i opened a new thread on "ask the lawyer"'s section, hopefully he will clarify this for us.

Although a Thai usufruct extinguishes upon a persons death in Thailand. There is an odd quirk to this rule: a lease of a usufruct can be obtained in Thailand and this Thai lease will remain valid even if the owner of the Thai usufruct who granted the Thai lease should die.

Source:

http://www.interactivethailand.com/thailand-usufruct/

[donx]

What happens to the lease if you expire first is something I don't know the answer to.

I have the answer to that, but not yet to my original query, so that's why i opened a new thread on "ask the lawyer"'s section, hopefully he will clarify this for us.

Although a Thai usufruct extinguishes upon a persons death in Thailand. There is an odd quirk to this rule: a lease of a usufruct can be obtained in Thailand and this Thai lease will remain valid even if the owner of the Thai usufruct who granted the Thai lease should die.

Source:

http://www.interactivethailand.com/thailand-usufruct/

Reading from the source that you provided, it sounds like they are referring to a lease that is registered at the same time as the usufruct - "duly registered with the Thai land office". I think that only a lease that is registered at the land office would be enforceable upon the land owner and such a lease would require the land owner's approval. I don't think you can add a 30 year lease by yourself without the land owner allowing it.

[SOMeTOM]

Sorry Donx, but you are reading it wrong, "duly" doesn't mean "at the same time",as long as your land owner granted that "right" to you in writing at the land's office, you are fine, enforcing the law, in any aspects of the law, here in Los, is a totally different matter though.

Any contract on properties, a business or home, from what i can remember, it's not enforceable after a year if it's not registered on LO, even if you both agree and signed on something, so, be careful if you are paying a rent

[donx]

Thanks for the correction.

When you say that the land owner grants you the right to lease the land to someone else for a period longer than 3 years, are you saying that you can go to the land office and register that lease on the back of the Chanote without the land owner having to provide his/her copy of the Chanote and provide his/her written approval at the time the lease is registered on the Chanote?

[ricklev]

No matter what any law office or says or writes no land office should allow a usufruct holder to register a lease without the consent of the land owner and even then the land office is unlikely to allow it.

The law office "advice" is based on a misinterpreted Supreme Court decision.

Believe me or not, I have discussed this with a Thai Supreme Court judge. This question was used as a final exam question for a Thai property law exam.

Edited October 22, 2014 by ricklev

[SOMeTOM]

no land office should allow a usufruct holder to register a lease without the consent of the land owner

I guess we are all agreeing on that, me, you, the land owner, even my dog seems to be nodding for it, in fact, there is a clause where the land's owner gives his consent in writing about it on the usufruct, signed and counter signed by all the necessary parts, all been already vouched by the land's office from many years....

[SOMeTOM]

Not easy to find a public's office granting you with your legal rights, even more difficult to find someone giving you a favourable deal, however, luckily it is not always the case......

[ricklev]

no land office should allow a usufruct holder to register a lease without the consent of the land owner

I guess we are all agreeing on that, me, you, the land owner, even my dog seems to be nodding for it, in fact, there is a clause where the land's owner gives his consent in writing about it on the usufruct, signed and counter signed by all the necessary parts, all been already vouched by the land's office from many years....

The land owner's general consent on the usufruct is very very unlikely to be acceptable. The land owner's signature on an actual lease? Maybe, but very unlikely. Multiple encumbrances on a land title are problematic. Of course land officers are a fickle bunch. Anything can happen.

Edited October 23, 2014 by ricklev

[SOMeTOM]

It's not so "general", there are very specific parts, and as we are discussing about some legally binding contracts, i would like you to produce some proof that this is not valid as you seems to suggests, as a law or something different from a simple conjecture.

[ricklev]

I got no pony in the race and wish you the best! Cheers.

[ricklev]

After the land officer refuses to allow you to register a lease (although it can't hurt to try) he should allow you and the land owner to dissolve the usufruct and the land owner can then register a lease directly with the third party. Of course the land office has no power to compel the land owner to do this no matter what is written in your usufruct agreement.

[SOMeTOM]

So you just bought that pony then Rick?

[SOMeTOM]

I am going to wait for the OP's question to be answered in the Ask the Lawyer forum here:

http://www.thaivisa.com/forum/topic/769902-whom-get-the-usufructeds-land-back-at-endor-break-of-a-lease/

Doesn't look as we are going to get an answer anytime soon uh ?

[donx]

If you as the usufructuary has the right to lease the land as part of the usufruct agreement why would you think that after the lease expires the usufruct would be nullified? Wouldn't that be the only way for control of the land to go back to the land owner?

[SOMeTOM]

Hi Donx, my answer to your first question (as i can't understand your second question, if you reformulate it, i might), is that laws sometimes don't work out as we would expect or in a fair and obvious way, it seems that even law's firms are puzzled by this, in fact, nobody dares to give a straight answer...

[ricklev]

I write this only to atone for my small role in perpetuating the myth of the 30+30+30 land lease when I worked for a law firm many years ago and to help anyone confused about usufructs. Whenever this topic comes up I post, but pretty much without any expectation of it doing any good.

There is no confusion, puzzlement, ambiguity etc. by any real Thai property lawyer, judge, or property law professor that there is no right in Thai law for the holder of a usufruct to register a lease at the land office. No confusion at all. A usufruct holder should not be allowed to register a lease at the land office.

I understand that a few farang oriented law firms say there is a right in Thai law for the usufruct holder to register a lease. They are wrong. Just like they were wrong when they told you you could have a 30+30+30 year lease. I know how these things work. They are just copying each others mistake with no basis in law.

I hate the idea that some people are going to get a usufruct expecting to be able to register a thirty year lease for a substantial amount of money at some point in the future.

However, if the land office does allow such a lease by the holder of a usufruct then there is a Supreme Court decision which allowed a lease to stand. It's unclear from the decision whether the lease was registered due to an error or corruption on the part of the land officer.

Edited October 27, 2014 by ricklev

[donx]

Hi Donx, my answer to your first question (as i can't understand your second question, if you reformulate it, i might), is that laws sometimes don't work out as we would expect or in a fair and obvious way, it seems that even law's firms are puzzled by this, in fact, nobody dares to give a straight answer...

My second question was rhetorical. I'm merely saying that the only way the landowner can have control back of the land is if the usufruct is no longer in affect. In my unprofessional opinion that can't happen just because you lease the land to someone else.

Again this is all based upon your assertion that you have the right to lease the land to someone else. You obviously can't provide a lifetime usufruct to a third party. Only the landowner can do this. In a similar manner I agree with ricklev that the land office shouldn't allow a lease to be established by someone that has a usufruct without the explicit written permission of the landowner. If you have (as you claim) this permission, then you should have no problem leasing the land and retaining full control of the land after the lease expires.

[ricklev]

The usufruct holder has no right to register a lease under any circumstances, permission of the land owner or not. It's that simple! It doesn't matter what kind of contract or consent the usfufruct holder has. It means nothing! The usufruct holder has no right to register a lease. The usufruct holder has no right under any circumstances anytime anywhere ever to register a lease.

Anyone considering a usufruct with the intention of someday leasing the land should read the paragraph above over and over until it sinks in! Don't believe anything else that anyone tells you!

Does this mean that a land officer will never allow it? No. It's just extremely unlikely.

Edited October 27, 2014 by ricklev

[bangkoklawyer24]

...

However, if the land office does allow such a lease by the holder of a usufruct then there is a Supreme Court decision which allowed a lease to stand. It's unclear from the decision whether the lease was registered due to an error or corruption on the part of the land officer.

Which Supreme Court decision do you mean?

[SOMeTOM]

Ricklev, are you telling that is illegal to register a lease for a usufruct holder? If so, where is this law? And even you are writing about a supreme court decision of let to carry on a lease coming out of a usufruct, so, does this mean that the court made an illegal decision???

Than you bring up the 30+30+30 lease, nobody is talking about that apart from you.

Honestly, i saw them all, people telling me a usufruct cannot be made for foreigners for a series of reasons, even for the yellow's book i had to struggle a bit, not much with the people involved in the process but with other people beliefs...that's crazy, uh

We know that some land's office will try to disrupt anything granting something good for a foreigner, but that's not always the case.

Anyway, thanks for your input, the facts you stated confirm that a lease coming out from a usufruct will stand in a court of law and win, however, i am still looking for more facts regarding my original question.