Superficies vs Usufruct What one is better?

[ChaangNoi]

My Thai wife owns land and a house. We went to our lawyer to get a 30 year Usufruct for me and my kids but the lawyer is trying to get us to do a Superficies because it lasts forever.

Can someone please explain the difference between the two and what one is better?

I just want to make sure the lawyer really has my best interests at heart.

Thanks.

[uptheos]

http://www.siam-legal.com/realestate/Superficies.php

http://www.siam-legal.com/realestate/Usufructs.php

[ChaangNoi]

Thank you uptheos. That did give me the basic understanding of what they are.

I have seen it advised on this forum over and over to get a Usufruct to protect ones property in case of divorce or death of the spouse. I understand that if my wife dies her parents get half of what she owns. We are also setting up a will but I would like extra protection.

It seems to me that what I really want is a Usufruct as the land office will not let the sale of the land happen.

With a Superficies it is more of a court thing and if I want to protect my land I will have to go to civil court.

Is my understanding correct? Am I missing anything I should consider?

My wife is 100% on board with this and will do whatever I think is best. I'm not so sure about the lawyer.

Thank you all for your help.

[hhgz]

"Am I missing anything I should consider?"

Indeed. You should speak with an appropriate attorney, without your wife present, and allow him to explain both, and give his recommendation. It'll be the best 5K THB you've ever spent.

[Lone Ranger]

I was in the same position as you when buying a second home I went a Welsh lawyer in Chiang Mai recommended by their Forum who advised me the usufruct is the way to go so that if sadly divorce rears it's head you cannot be evicted for 30yrs .That is a fact -no need to go to a lawyer except to help set it up when you but the property.

[wowfactor10]

I was told usefruct would give you the right to use the land and house till you would die.

Anyway i remain firm under current unfair Thai laws never buy land and house with your own money..

[ChaangNoi]

I was in the same position as you when buying a second home I went a Welsh lawyer in Chiang Mai recommended by their Forum who advised me the usufruct is the way to go so that if sadly divorce rears it's head you cannot be evicted for 30yrs .That is a fact -no need to go to a lawyer except to help set it up when you but the property.

That was pretty much my understanding as well. Thanks for your post.

[ChaangNoi]

I was told usefruct would give you the right to use the land and house till you would die.

Anyway i remain firm under current unfair Thai laws never buy land and house with your own money..

I understand about not wanting to but a house in Thailand and I understand it is risky. This is a risk I willing to take as part of a very diversified portfolio.

The usefruct I was told only could last for 30 years. But I have been seeing some people talk about it until death. Do you have more information on this?

Thanks

[dru2]

I was told usefruct would give you the right to use the land and house till you would die.

Anyway i remain firm under current unfair Thai laws never buy land and house with your own money..

I understand about not wanting to but a house in Thailand and I understand it is risky. This is a risk I willing to take as part of a very diversified portfolio.

The usefruct I was told only could last for 30 years. But I have been seeing some people talk about it until death. Do you have more information on this?

Thanks

I got usufruct until death at the Hangdong land office, Chiang Mai, last year. The details are inserted (in Thai) on the chanouat ti din. It was surprisingly easy.

[wowfactor10]

I was told usefruct would give you the right to use the land and house till you would die.

Anyway i remain firm under current unfair Thai laws never buy land and house with your own money..

I understand about not wanting to but a house in Thailand and I understand it is risky. This is a risk I willing to take as part of a very diversified portfolio.

The usefruct I was told only could last for 30 years. But I have been seeing some people talk about it until death. Do you have more information on this?

Thanks

Ask your lawyer but i sure usefructs will can be till death.Otherwise there would be no difference with an ordinary 30 years lease...

However in the end your investment it always up in Thai hands.

You will never be able to resell it,you not the owner.

Farangs Better of buying a condo in your own name less headache surely..

[uptheos]

If by any chance you have a divorce with bad feelings, no usufruct will protect you from vindictiveness or harassment.

I know a guy who had a nice house in Isaan with usufruct. After a few years went through a very nasty time and divorce, with the family of the woman making his life hell. Stuck out in nowhere land with no social contacts, he came to a very nominal financial agreement to have his usufruct removed.

I guess it's useful if the wife dies, then at least you can sell it (within a year) and keep whatever you get for it.

[DonaldBattles]

The usufruct also allows you to sublet. The contract for sublet can survive your death. For example, you sublet for 30 years and you die in 20 years the contract is still in force for an additional 10 years.

[Old Croc]

I went with a Usufruct over alternatives mainly because of this clause:

The Transfer of Usufructs
Transfer to a Third Party
The beneficiary in a usufruct scenario may also transfer his rights to the usufruct to a third party according to the Civil and Commercial Code of section 1422.

The grantor of the usufruct however will still claim for damages caused by the third party directly against the usufructuary.

An interesting feature of usufruct is that the usufructuary can enter into a 30-year lease with a third party. So if the usufructuary signed a 30-year lease contract before his death, the lessee (tenant) will maintain the rights of the lease until its expiration.

If circumstances change (wife no longer around) and you don't wish to continue living in the house, you can sublet and get income from the property until your death.

Interestingly, looking at that final clause, you could lease out the property to a third person for thirty years shortly before dying to really stuff up the owner, if that's how things are.

[ChaangNoi]

Mostly what I am worried about is the house being sold without my consent. I want the house to be used a place for my wife, kids and myself to live no matter what for at least the next 30 years.

The main thing I am worried about is if my wife dies then her parents get part of the house. I do not want her parents selling the house or kicking us out of it.

Also if both my wife and I die I want my kids to still have a place to live.

If we do end up getting a divorce I would like to have some control over how things get negotiated.

As for the people who are concerned about the investment I have made, I'm 100% okay and aware that I might lose the house and get nothing back. I do that with everything I buy in Thailand. However I am trying to protect my assets and family as best I can while working with the Thai law.

It seems that a will plus usufruct is the best combo I can currently think of.

Any ideas or helpful hints very welcomed.

Thanks.

[louse1953]

Thank you uptheos. That did give me the basic understanding of what they are.

I have seen it advised on this forum over and over to get a Usufruct to protect ones property in case of divorce or death of the spouse. I understand that if my wife dies her parents get half of what she owns. We are also setting up a will but I would like extra protection.

It seems to me that what I really want is a Usufruct as the land office will not let the sale of the land happen.

With a Superficies it is more of a court thing and if I want to protect my land I will have to go to civil court.

Is my understanding correct? Am I missing anything I should consider?

My wife is 100% on board with this and will do whatever I think is best. I'm not so sure about the lawyer.

Thank you all for your help.

I don't think you can do a usafruct with your spouse.Conflict of interests.

[ChaangNoi]

I don't think you can do a usafruct with your spouse.Conflict of interests.

Oh? Well that would sure make things interesting as she very much owns the house/land. Do you or does anyone have more information about this?

[wileycoyote]

Very good & informative posting

[stgrhe]

Both are good alternativs but which one that is best for OP depends on the circumstances. One major advantage with a superficies over the usufruct is that the possessory right can be inherit by a heir.

Neither of them "lasts forever" but both can be signed for lifetime of the beneficiary, alternatively 30 years.

[ChaangNoi]

Well, the key thing to know right now is if I can even do a usafruct with my wife. If I can't then this whole thread is moot.

[uptoyoumyfriend]

I don't think you can do a usafruct with your spouse.Conflict of interests.

Oh? Well that would sure make things interesting as she very much owns the house/land. Do you or does anyone have more information about this?

you can -i did.

there is a special low fee for married parties here in cm i paid bt 180.

[ChaangNoi]

I don't think you can do a usafruct with your spouse.Conflict of interests.

Oh? Well that would sure make things interesting as she very much owns the house/land. Do you or does anyone have more information about this?

you can -i did.

there is a special low fee for married parties here in cm i paid bt 180.

Very nice. Is this something I should have a lawyer do or something we can sort our ourselves?

Thank so much.

[Old Croc]

I don't think you can do a usafruct with your spouse.Conflict of interests.

Oh? Well that would sure make things interesting as she very much owns the house/land. Do you or does anyone have more information about this?

you can -i did.

there is a special low fee for married parties here in cm i paid bt 180.

Very nice. Is this something I should have a lawyer do or something we can sort our ourselves?

Thank so much.

I used a lawyer to ease the whole thing through the authorities, but I also had several land titles to transfer first.

I'm not actually married, but as someone else stated it can be done with a wife if your local office agrees;

Just like a lease the usufruct details are on the back of the chanote so it cant really be sold out from under you.

[Maestro]

Both are good alternativs but which one that is best for OP depends on the circumstances. One major advantage with a superficies over the usufruct is that the possessory right can be inherit by a heir. Neither of them "lasts forever" but both can be signed for lifetime of the beneficiary, alternatively 30 years.

It is not necessary to specify the duration of a usufruct either for life or for 30 years. The duration can be for any period being stated in the contract.

The way I understand it, a usufruct can also be for the life of more than one person. In the case presented by the OP, it can be for the duration of his life and the lives of all his children.

[Maestro]

The heir or buyer of a property of which you are the beneficiary of a usufruct is bound by the terms of the usufruct. In other words, a change of ownership does not abrogate or alter the rights of the beneficiary of the usufruct.

[vaultdweller0013]

I don't think you can do a usafruct with your spouse.Conflict of interests.

Oh? Well that would sure make things interesting as she very much owns the house/land. Do you or does anyone have more information about this?

I believe the issue with this is that legal contracts between spouses in Thailand can be cancelled by either party at any time. So, the lifetime usufruct is good to protect against death of the spouse and someone else inheriting the land and kicking you out, but not divorce since the spouse could cancel the agreement any time before the divorce completed.

Presumably, this could also affect the 30 year usufruct/lease/etc, but I don't recall exactly -- you would need to talk to a lawyer for particulars.

[uptoyoumyfriend]

I was told usefruct would give you the right to use the land and house till you would die.

Anyway i remain firm under current unfair Thai laws never buy land and house with your own money..

I understand about not wanting to but a house in Thailand and I understand it is risky. This is a risk I willing to take as part of a very diversified portfolio.

The usefruct I was told only could last for 30 years. But I have been seeing some people talk about it until death. Do you have more information on this?

Thanks

the uf is usually for life. well,mine is. this way i am covered the rest i don't care.

i took a laywer because my thai is lousy and i didn't want to miss anything.

the devil is always in the details. my wife has the best intentions but she's no einstein.

but if you trust your wife to do this then you need nobody.

[Anthony5]

I don't think you can do a usafruct with your spouse.Conflict of interests.

Oh? Well that would sure make things interesting as she very much owns the house/land. Do you or does anyone have more information about this?

Do a Google for 'Samuiforsale' , that site has a lot of legal matters concerned realty in Thailand explained.

A Usufruct is normally for life, while a lease is maximum for 30 years, but both are contracts and any contract made between spouses during their marriage can be challenged in a court of law in case of a divorce.

The contract isn't automatically nullified or void with a divorce, but the your spouse can ask for it with the divorce judge, and it is under his discretion.

You can read about all this on the site I mentioned.

[wowfactor10]

Other options u can consider are :

Split the land and the house so make 2 contracts one a purchase agreement in your name for the house ,two get a lease agreement for the land ..(.The house can be freehold in your own name...then take a lease for the land...)

Or put the land and house in your childs name....its then everlasting and after your die your child gets it without sharing it...

Or have it company hold and give your self the preferent shares.

Anyway as u know land and house purchases u cant make it water tight 100%

[cheeryble]

To me the important advantage of usufruct is your ability to stuff up the grantor by subletting etc for 30 years.

This means a deal......like "selling" the property....should be persuadable to regain your funds minus the sort of "commission" someone would want to get cash now rather than in 30 years ( if they are still alive).....my guess is a moderate percentage.