Usefrukt

[96tehtarp]

I got my usufruct many years ago together with a separate agreement giving me the ownership of the house. If my wife predeceases me I can legally enjoy use of the land until I die. I am also permitted to lease the land to anyone I see fit for a period of up to 30 years and the lease's term is legally binding even if I die before the term is up. I plan to lease it to my sons.

We did the usufruct at the land registry office for about 100 baht. My name is on the deed and before it was entered into the computer at the land registry the boss told my wife that there was no way he could remove my name once it was done, unless I agreed to it.

Several years ago we needed money and decided to uses a wealthy Chinese-Thai money lender at a good rate. It was impossible without my explicit written/witnessed approval. A few years later a bank loan could not be arranged either without my approval.

It has been my experience they are quite useful, although it would be good to keep in mind that it would not be too difficult to chase a lone unwanted farang off his land or make him too afraid to "use" it. There is an thread running right now in the news section of some land owner in Phuket who hired 4-5 hit-men to whack another guy for encroaching on his land for about 10 cm!

I was also initially told at the land office "No, Thailand no have, cannot in Thailand because Law not allow..." I returned with a printed copy of the relevant Law in Thai with the specific sections highlighted stating that it most certainly could be done... because it's the Law of Thailand.

Before even asking the land registry about it I'd suggest to get the original deed in your hand and identify who is named as the owner. I would not settle for a copy. Often foreign men buy land for wives who never get listed as owner on the deed, or there are several owners named, or the original chanote cannot be produced, or the land is already usufrcted to some other person fx. ex-husband.

Once the named owner is verified on the original chanote and also double checked as matching the name in the computer at the land registry the next step is to check that the plot of land on the chanote matches with the plot of land in question. Are they the same, or is the paper deed for some completely different piece of land? Every land registry office in Thailand has a detailed map with detailed surveys.

With all the trouble that can be gotten into with land deals in Thailand I would think very carefully if the land registry office does not want to do a usufruct for you. They usually know more than they will let on, and might even be doing someone a favour by refusing to do it.

eg. Once at the land registry office while investigating the purchase of an nearby plot of land we were upstairs looking for it on the survey map. We found it and noted down the plot's number then went looking for the docket and file. There wasn't any. It was disappeared. The head of the survey section looked at me shaking his head and said, "Don't even think about it, forget it". Eventually a Thai family bought it and five years later they still haven't got a chanote. It has been a major headache for them as it was a very shady deal.

[swissie]

Referring to my post # 14. Posts # 18, 20,24,25, 30 seem to confirm my findings.

Since Jan.1 (Actually Dec 29 th,) plenty of new legislation was put into effect. Affecting Thais as well as Farangs.

International legal consensus is this: The claim " I didn't know this particular law has changed" will not exclude anyone from the repercussions of a new law. It is a citizens duty (or resident of any given country, where the foreigner may live), to inform himself about changing legal matters.

So, Farangs, having installed "Usufruct's", or Company-Ownership deals (with the purpose of "owning the land") some 20 years ago, I would urgently recommend to check their 20 year old paper work and compare it to the "actual legal state of affairs."

I rest my case. Cheers.

[iancnx]

That 75 Baht solution will break your neck.

Utter rubbish.

Correct. And you do not need to be a lawyer to understand that such utter rubbish for 75 Baht will not solve any real estate problem. If you get a usufruct for free, that means that the Thai land owner held already the land on your behalf. Whenever the crackdown police comes in your town they will collect all these free-usufructed Chanotes to put them on public auction. You have been warned.

So you are suggesting my wife as the land owner can have her chanot taken by the police and put on public auction? Pray tell!

[donx]

One more time: USUFRUCT means having the right to use land. house or existing business. This means, some gainful commercial activity must be part of it. Just to sit at the house, twiddling your thumbs will not satisfy the conditions of a USUFRUCT.

Remedy: Have "your" land worked by someone, with the clear intent of commercial use. If you do it by yourself, you will need a work permit. OR: For example, rent out one room of the house to seamstresses or whatever, to fulfill the requirement of "making use".

By not doing any of the above, your "USUFRUCT" is worthless and will not hold water in any court of law in Thailand. The fact, that the lawyers you consulted, were "unaware" of the term USUFRUCT is strictly self-protection with the goal not getting involved in any future legal matters, that the current government would classify as "Misrepresentation".

With or without USUFRUCT. If wife should die before Farang, it will be the moment of truth. If Thai-family has accepted the "long-nose" for whatever reasons, fine! If not, the Family will find very effective ways and means to get rid of the Farang.

THERE IS NO GOLDEN PARACHUTE FOR A FARANG IN THAILAND. With or without lawyer.

Cheers.

I don't agree with your definition of USUFRUCT that it means some gainful commercial activity must be part of it since the definition is based upon the two latin words that together meant use & enjoyment.

[cheeryble]

If you need a standard usufruct form try at the photocopy shop next door to the Land Office.

As to the CAPITAL LETTER writer who speaks of work permits a usufruct is a right to enjoy the fruits of the land. That doesn't mean apples and pears, it means anything you might like to enjoy including renting it out if you like.

I like the usufruct in that you can lease out the property for 30 years the day before you snuff it. The mere threat of this should make an uncooperative owner a lot less uncooperative.

[topt]

Referring to my post # 14. Posts # 18, 20,24,25, 30 seem to confirm my findings.

Since Jan.1 (Actually Dec 29 th,) plenty of new legislation was put into effect. Affecting Thais as well as Farangs.

International legal consensus is this: The claim " I didn't know this particular law has changed" will not exclude anyone from the repercussions of a new law. It is a citizens duty (or resident of any given country, where the foreigner may live), to inform himself about changing legal matters.

So, Farangs, having installed "Usufruct's", or Company-Ownership deals (with the purpose of "owning the land") some 20 years ago, I would urgently recommend to check their 20 year old paper work and compare it to the "actual legal state of affairs."

I rest my case. Cheers.

swissie I often agree with some of your posts but quoting those particular posts to reinforce your original statement is IMHO somewhat (I am being polite ) misleading. You or anybody could just have easily quoted an equal number disagreeing with your original statement.

I actually have an usufruct taken out at Pattaya land office. However I used Isaan Lawyers and unfortunately had to "bung" the bossman at the land office to get it done - he initially said they could not do it on the same day and wanted us to come back the following week or something.

Also you mention "new legislation" above - care to give some detail and references relating to usufructs specifically.........

[swissie]

Referring to my post # 14. Posts # 18, 20,24,25, 30 seem to confirm my findings.

Since Jan.1 (Actually Dec 29 th,) plenty of new legislation was put into effect. Affecting Thais as well as Farangs.

International legal consensus is this: The claim " I didn't know this particular law has changed" will not exclude anyone from the repercussions of a new law. It is a citizens duty (or resident of any given country, where the foreigner may live), to inform himself about changing legal matters.

So, Farangs, having installed "Usufruct's", or Company-Ownership deals (with the purpose of "owning the land") some 20 years ago, I would urgently recommend to check their 20 year old paper work and compare it to the "actual legal state of affairs."

I rest my case. Cheers.

swissie I often agree with some of your posts but quoting those particular posts to reinforce your original statement is IMHO somewhat (I am being polite ) misleading. You or anybody could just have easily quoted an equal number disagreeing with your original statement.

I actually have an usufruct taken out at Pattaya land office. However I used Isaan Lawyers and unfortunately had to "bung" the bossman at the land office to get it done - he initially said they could not do it on the same day and wanted us to come back the following week or something.

Also you mention "new legislation" above - care to give some detail and references relating to usufructs specifically.........

I am fortunate enough, to make the acquaintance of Mrs. Saijai P. - A practicing lawyer of 23 years along time ago. An excellent lawyer and one of the very few friends I would call by that name.

I try to give a short version of what she had to say about the issue:

- It is not really about new laws, it's about the interpretation of old laws in todays new environment (new government ). To Thai-Lawyers it was always clear that Usuruct's, Company Formations etc etc were never truly within the letter, the spirit and the intent of the law. Thai-Lawyers, specializing on a Farang clientele, referred to those laws as "Pacifier Laws". = To pacify a Farang and leaving him with the impression of having outmaneuvered the law of the land. The setting up of such contracts is lucrative for legal-eagles and always good for an "after hour office party".

These days, in case of legal disputes, the courts tend to favor the side of "The Kingdom of Thailand" instead of the questionable claims of an individual Farang. AND: What may turn out as a favorable finding for a Farang in a court of law, may find a favorable finding for "The Kingdom of Thailand" in another court of law. Possibly only 50 Km's apart.

((This may sound familiar to Farangs, that had to deal with different immigration offices within Thailand. Immigration (Police Orders), issued in Bangkok are mostly taken as pure "recommendations" by the local Immigration-Chieftains)). In a very similar way do court-proceedings take place in Thailand. KEEP THAT IN MIND, ABOVE ALL !

All the above was reason enough for my lawyer-friend to no longer offer any "Pacifier-Contracts" anymore in her legal-firm.

This is what she had to say about the issue.

---------------------------------------------------------------------------------------

The moral of the story: Instead of getting involved in costly Legal-Acrobatics, that these days are on extremely shaky grounds: RENT for 2 years. If you and the queen of your heart are still together, you may consider a real estate adventure. Always keeping in mind that you will remain a passenger but not the guy in the "drivers-seat".

What is the situation for folks that are in the possession of contracts that were drawn-up years ago? There is nobody that can deliver a binding and indisputable answer, that would cover the whole of Thailand at this time.

Cheers.

[cheeryble]

That 75 Baht solution will break your neck.

Utter rubbish.

Correct. And you do not need to be a lawyer to understand that such utter rubbish for 75 Baht will not solve any real estate problem. If you get a usufruct for free, that means that the Thai land owner held already the land on your behalf. Whenever the crackdown police comes in your town they will collect all these free-usufructed Chanotes to put them on public auction. You have been warned.

This sort of thing would send a message down the line that even property is not safe, that would be a catastrophic declaration and i don't think any government would risk it and the potentially huge consequences which would follow not to mention devaluation of property throughout Thailand.

The proper procedure would actually be if someone is seen to be owning the land as a nominee for the ownership to be annulled, the property sold, and the funds from the sale to go to the person who provided them minus possible auction commission or expenses. Both parties might at worst be seen as party to bending rules though may be difficult to press home in court, though a fine would be possible, but there is as far as I can imagine nothing in the statutes or guidelines suggesting a fine might be anything in the same league as the value of the property.

In any case there is a sort of exchange happening on issuance of a usufruct isn't there?

i.e. One party is given future possession of the property in return for helping the usufructee be able to enjoy it for X years.

Isn't that an exchange just as much as a pecuniary exchange?

ps Don't own a usufruct or anything like it.

I have actually heard of this happening.

Edited March 1, 2015 by cheeryble

[louse1953]

One more time: USUFRUCT means having the right to use land. house or existing business. This means, some gainful commercial activity must be part of it. Just to sit at the house, twiddling your thumbs will not satisfy the conditions of a USUFRUCT.

Remedy: Have "your" land worked by someone, with the clear intent of commercial use. If you do it by yourself, you will need a work permit. OR: For example, rent out one room of the house to seamstresses or whatever, to fulfill the requirement of "making use".

By not doing any of the above, your "USUFRUCT" is worthless and will not hold water in any court of law in Thailand. The fact, that the lawyers you consulted, were "unaware" of the term USUFRUCT is strictly self-protection with the goal not getting involved in any future legal matters, that the current government would classify as "Misrepresentation".

With or without USUFRUCT. If wife should die before Farang, it will be the moment of truth. If Thai-family has accepted the "long-nose" for whatever reasons, fine! If not, the Family will find very effective ways and means to get rid of the Farang.

THERE IS NO GOLDEN PARACHUTE FOR A FARANG IN THAILAND. With or without lawyer.

Cheers.

You are a scaremonger.It doesn't say use for commercial use at all.It says"for use and enjoyment".Lawyers picnic on that one.

[louse1953]

That 75 Baht solution will break your neck.

Utter rubbish.

Correct. And you do not need to be a lawyer to understand that such utter rubbish for 75 Baht will not solve any real estate problem. If you get a usufruct for free, that means that the Thai land owner held already the land on your behalf. Whenever the crackdown police comes in your town they will collect all these free-usufructed Chanotes to put them on public auction. You have been warned.

i'm shaking in my thongs,5555.

[ThaiLawOnline]

I rarely have seen so much bullshit on a legal subject... again! Maybe it is because I have a deep knowledge of usufructs. I actually teach it to Thai lawyers, because I learned it at university. Not on a forum or website.

Let's make it clear.

1) It is usufruct in English. Not usefrukt (sorry for the title). This word is rarely used in English because many countries speaking English are Common Law countries. In French, it is "usufruit" and widely known. They also use it in Civil Law countries like Belgium, Netherlands and I believe in Germany.

2) There is an expert saying that in Thai it is : sit thi gap gin ta lord shee vit.

Usufruct in Thai is : See Tee Kep Kin. POINT. That person doesn't seem to understand, read and speak Thai because "Ta lord shee vit" or "talung shivit" means for lifetime.

3) Usufruct are NOT possessory rights like a person says. It is MORE than that. That is only the first part of the usufruct (the "usus") but you have other rights (the fructus, what is the right of fruits that can be defined in civil law by legal fruits and natural fruits). That includes for example "sub-leasing" (easy way for people to understand).

4) then, another expert says that usufruct are for commercial use. Wow? Where did he get that? From the civil code? Which article? From history? It was under Roman law for men to pass their properties to their son, and keeping their wife (that was not allowed to inherit properties) into the house. That has no commercial background. The emphyteusis lease in Civil Law (yes, google it!) were normally commercial but these are not usufruct. These are long term lease that were used for mining or others. These long term leases also exist in Common Law countries.

All countries of Common Law (USA, Australia, Canada (with the exception of Quebec), UK, etc) have no usufruct history and people do not study this concept. I come from Quebec where we have a mixed law system (same as Thailand and very rare in the world) and we do have Civil Law (same as Thailand).

5) Some people stated that 'some' Thai lawyers do not know about that: TRUE. Why? Because most of Thai lawyers do not work with foreigners and Thai people do not need usufructs. They can own land, jointly or fully. Same as for the concept of superficies that is not usually used in Thailand. They use rental agreements same as we use them in all countries of the world.

I give you another example: Ask someone of your Thai family about extensions of visas for foreigners in Thailand? Or even a Thai attorney that doesn't specialise in that field. They will not know. We know it because we have to do it every year if you live in Thailand. Most Thai people don't even know where is Ghana or Peru? But they know that Monday is yellow. They also think the king was born in Switzerland. (It is not. He studied there...search and you might be surprised if you don't know the answer).

6) A usufruct cost 75 baht per chanotte at the land department.

7) Usufruct can be done ANYWHERE. Even in Pattaya. But some land department are difficult. Since the military government, there is a crackdown on corruption but there are more checks everywhere. Some land department will try to make you think you use your girlfriend or wife as nominee (which is illegal) so you must understand how to answer their questions.

8) For all the people that did a usufruct at 75 baht without a lawyer, look at your THAI contract that was done at the land department. It is 5 lines more or less. It says that you are granted usufruct, from X period of time, for an amount X, and that is more or less about it.

We make an agreement of several pages, that we developed over the years. These contracts acts like an addendum and gives other rights to the parties that would not be given by the land department. That is BINDING both parties as it is signed and no clause are illegal. In Civil law, we say : The contract is the law between parties. it is made in 2 languages for both parties to fully understand their rights and obligations. I personally know NONE usufruct broken in Court. I know some leases that were broken by Thai Court. A famous one is talked right now in Phuket.

One of these clauses in OUR usufruct agreement can say that the land owner can not sell, transfer, mortgage, etc... the land during the usufruct. That will not bind third parties but could lead to damages if the land owner violates the contract.

We also add a clause similar to superficies. It says that all improvements will become the property of the usufructuary. That, the land department will never do it. Especially efficient is the land has no building and the couple is not legally married.

We put clauses that could say the title deed is kept by which party. Have you heard about people adding a sale with right of redemption after a usufruct? No? Read the title deed attached. I deleted names for confidentiality. With a proper agreement, and if you add a MOU (memorandum of understanding) or something similar, that is the real protection.

There are tons of benefits to make a simple agreement to add the value of the usufruct done at the land department. Tons. But if you want to save 5,000 baht and take the risk for a property that worths 1, 2, 3, 5, or 10 million, up to you.

We have clients that came to us and said they had usufruct...and we check, and they have lease, superficies or other rights. Married couple are forbidden by the land department (not by law) to make a lease for the last 3 or 4 years. However, one land department might agree. So this is why they do usufruct between married couple now. But I have done leases between married couples. And people forget that you can also do a mortgage. You focus on 2 contracts: lease vs usufruct and forget all the environment and what can be done beside that.

We have registered hundreds of them, some with companies, some between gay clients, some with several usufructuaries, some with value and not for free, some for 30 years, some for lifetime (mostly lifetime and for free) it all depends on clients. I wrote about usufruct in English in 2008. I think nobody did it before me. I wrote about it because there was nothing and it is VERY helpful for foreigners. Even the people at 75 baht will agree. I hope you are thankful that some people provided you the knowledge. That's what we try to do with Thailawonline DOT com.

Look at the attachment. Someone registered a usufruct and his wife was able to make KAIFA over the usufruct. (and others if you can read Thai. Kaifa is "sale with rights of redemption".) I deleted the names for confidentiality. A proper contract (not the one at 75 baht at the land department) could have protected this man. He still can live in the property, but he can not inherit it, and his wife will lose it unless she pays back the kaifa and others. She did that on purpose because he is old and they had problems.

I said there was a lot of bullshit... was I right? I personally won't answer replies. I don't spend my time on forums anymore. I wanted to check a topic about the lease of 30 X 30 X 30 in Phuket and found that topic. Just wanted to put things in order for the benefit of all.

Sebastian from Isaan Lawyers.

[inzman]

Thank you for a very informative description

[bangkoklawyer24]

The Usufruct trap - how to lose your property investment for 75 Baht only

on.fb.me/1MoFQXH

[cheeryble]

Presumably all that's needed to tighten up Pugnatorius's central worry is a receipt or evidence of transfer of an appropriate sum for issuance of the usufruct?

[khunPer]

Thank you, Sebastian, for very detailed information about usufruct – especially at Isaan Lawyers homepage.

It was me mentioning, "sit thi gap gin ta lord shee vit”, which is quoted from Philip Bryce’s 2006-book “How to Buy Land and Build a House in Thailand”, where he explain quite detailed about usufruct over 4 pages. Goggle-search shows that this misunderstanding in Thai language seems very common, both based on the number of more than 1 million Google-hits and the pages shown in the search results. As well Philip Bryce, and others, mentions the lack of knowledge by lawyers, and that it probably can be caused due to a simple procedure at the Land Office.

So good some real expert can demystify usufruct, thanks...

[ThaiLawOnline]

The Usufruct trap - how to lose your property investment for 75 Baht only

on.fb.me/1MoFQXH

Someone wrote that a registered usufruct can be challenged under 1469 between a married couple? is that right?

No name. No references. Nothing. But I read about that a long long time ago here, and nobody was able to give any references.

Could this anonymous person kindly show everyone here ONE DECISION, just one, from ANY court in Thailand about it?

I actually never seen 1469 applied to any immovable property that is registered. Never.

We do much more family law than real estate law. I am much more aware of family law than real estate law in Thailand. Seriously.

I am curious and would like to learn about that.

But I would be extremely surprised that 1469 applied on usufruct registered.

My personal opinion is based on a Civil Law principle that is called "PUBLICITY". Public Acts, or things that are registered, like a lease (over 3 years) or a usufruct at the land department, DOES AFFECT third parties. Therefore, 1469 doesn't apply. (1469 in fine). Most Thai attorneys will also say that 1469 doesn't apply to registered usufruct. in 2008, I personally wrote that there was a "conflict" or people disagreed on that. That was what I thought then. Not anymore. Discussions with many Thai lawyers and cases Court made me change my mind. I doubted, no anymore. Unless you show me a case and I never seen one.

Protection against publicity is derived from old dispositions of the French law based on third parties (for example) acting in good faith. The publicity (called 'publicité' in French) or these third parties must be protected. It is announced and official.

Again, it is from Civil Law history and knowledge, the differences between what was called "Authentic, semi-authentic and non-authentic acts". That was before the basis of the law of proof (Loi de la preuve) in pure Civil Law.

You just want to be sure that you are protected by a way or another.

========

Thanks Khun Per. I believe the website of Isaan Lawyers is not very good.

Thailawonline DOT com that we did is MUCH better but we didn't update it for a long time. I hope we can do it soon.

[bangkoklawyer24]

The Usufruct trap - how to lose your property investment for 75 Baht only

on.fb.me/1MoFQXH

But I would be extremely surprised that 1469 applied on usufruct registered.

My personal opinion is based on a Civil Law principle that is called "PUBLICITY". Public Acts, or things that are registered, like a lease (over 3 years) or a usufruct at the land department, DOES AFFECT third parties. Therefore, 1469 doesn't apply. (1469 in fine). Most Thai attorneys will also say that 1469 doesn't apply to registered usufruct. in 2008, I personally wrote that there was a "conflict" or people disagreed on that. That was what I thought then. Not anymore. Discussions with many Thai lawyers and cases Court made me change my mind. I doubted, no anymore. Unless you show me a case and I never seen one.

As I see you are a sponsor of this website and, therefore, I have to answer very friendly. As I understand your comment, your only legal argument not to apply Section 1469 CCC to a Usufruct is that its applicability would affect third parties. I am not sure why you see that as a valid reason. Legal matters between the parties nearly always affect third parties, so what?

There is a comprehensive but German language explanation on Section 1469 CCC at http://on.fb.me/1C3HZoA The English version of Section 1469 CCC is mentioned there as "Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the rights of third persons acting in good faith are not affected thereby.” If that translation is correct, the law says that the legal effect of 1469 is restricted to protect good faith of third parties, but not at all its applicability between the married couple.

I guess the clear wording of the law does not give any legroom for the interpretation that real rights are excluded from the applicability.

[cheeryble]

"Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the rights of third persons acting in good faith are not affected thereby.”

Do you not think they wrote "avoided" but meant "voided" as in "made void"?

Edited March 11, 2015 by cheeryble

[kimmy]

"Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the rights of third persons acting in good faith are not affected thereby.”

Do you not think they wrote "avoided" but meant "voided" as in "made void"?

I don't know, maybe it is not common, but when you look at the definition of avoided you find results as meaning : to make void; annul, invalidate, or quash (a plea, etc. in law)

[ThaiLawOnline]

Hi Bangkoklawyer24.

Our company has been a sponsor of Thaivisa since 2007 I think. We are a small sponsor and only have one banner on the "Isaan Forum". I have no power for moderation, or others here and I do not come often at the moment.

To be friendly should be normal between "Colleagues" or between "Foreigners" in Thailand.

I know it isn't the case and that's why I am avoiding forums for few years.

Any business, even lawyers have to pay a rent, their employees. But you also have a duty to follow the law, your ethical code, help people when you can. I did and do a lot of pro-bono. That's maybe why the mortgage is far from being fully paid!

I deleted my notifications on Thaivisa messages so I might not reply if someone send me a private message or reply to this topic.

But I am interested in the subject so I checked again today. And I am not surprised that you are replying. I just think we can have a healthy discussion. And I can be wrong, like any of us. But good debates can help to clarify things. I don't think I am wrong on that one. However law evolves and in 5, 10 or 15 years, my position or the Courts positions might differ. Who knows, especially in Thailand? One the most unstable political country in the world... but what a fantastic one!

You wrote:

"your ONLY legal argument not to apply Section 1469 CCC to a Usufruct is that its applicability would affect third parties. I am not sure why you see that as a valid reason. Legal matters between the parties nearly always affect third parties, so what?

I capitalized "ONLY".

First argument based on publicity of rights:

It is the basic principle of publicity of rights. When you register a right, you "publicise it". There are decisions of the Supreme Court of Thailand on that. Example, decision of the Supreme Court in case 6872/2539 saying that a usufruct must be registered to apply to third parties. Yes, clearly mentioned... opposable or enforceable against third parties. That's the publicity principle.

There are dispositions of the Commercial and Civil Code mentioning something similar things: like leases of 3 years and more must be registered (538 CCCT) to be "enforceable".

Take the example of a mortgage in Thailand that is registered: A new buyer would have this mortgage as an encumbrances on the property.

Publicity affects third parties and you publicise exactly to protect your rights. 1469 clearly mentions UNLESS IT AFFECTS THIRD PARTIES or something like that. That is one argument and a very strong one.

Do you know why when you make a usufruct on a NOR SOR SAM you must make an announcement? (I think 1 month - We did that only once or twice in 8 years but we did registered probably over 100 usufructs all over Thailand). Because it affect third parties and Nor Sor Sam are not clearly delimitated so the land department requires it. That is not require on a Nor Sor Sam Kor or Chanotte. Because these rights are clearer about the size of their land.

What I dislike about previous arguments related to that "1469" and "usufruct" (I saw it few years ago) is they all were tending to sell "leases". But a lease is ALSO an agreement. A weaker one (in theory) because a lease is a personal right and therefore less stronger than a real right. You can draft a nice lease and make it great. But the closest thing to full property is ... a usufruct. That's why we call the other party "the naked owner". Or in French, "le nu-propriétaire" because he has nothing else than small rights. (sell for example...but not to live there, use it, sublease it, make fruits of it, etc.). Full property = usus + fructus + abusus and this applies to all things: a pen, a computer, a dog, some land, etc. Usufructs in Thailand are restricted to immovable property (1417).

Again, I asked you to show us ONE decision. Show us a usufruct broken on the base of 1469. Just one.

Second argument based on the spirit of the law:

1469 is in a section called "PROPERTY OF HUSBAND AND WIFE". (starting at section 1565).

As you might know, 1471 to 1474 are "public order". "Public order means by contract, you can't go against it".

You must always look at the intention or the spirit of the law. Why was 1469 put there after PRENUPTIAL agreement?

It is a protection against some abuses that could be committed by a party that would not apply the personal and common property of 1471 to 1474. It applies only for 1 year after a divorce (meaning a divorce must be made, and there are appeals possibles as you know, it can take time. And during the time of procedure if someone tries to break a usufruct, unless there is a caviant (which is rarely given by Thai Courts) a usufructuary could transfer his rights....which would affect third parties!)

Third argument based on dismembership of property, given as a gift and therefore, by public order, personal property

What is a usufruct? A real right. A real right is attached to a thing as you know. How is it defined in Civil Law? As a 'dismembership' of property. In other words, a usufruct IS property. A part of it, but a complete part of the usus and fructus.

The first and second part of what is full property.

Just the third part, the "abusus" is not included. (Abusus= right to sell or destroy for example).

I will go further in THEORY. How is a "gift" treated under marriage in Thailand? It is a personal property. (1471 (3)).

So if a wife, GIVES A USUFRUCT FOR FREE, during marriage, IT IS A GIFT and PERSONAL PROPERTY of the husband because a usufruct is PROPERTY RIGHTS.

That is what I would plead should someone tries to void a usufruct.

So a usufruct done for free would have a stronger value during a marriage. It is a gift.

Could you imagine is all gift done during marriage would be VOID by a Court if people decide to divorce in 1 year of it?

Courts never break gifts. They protect them in divorce cases. That is an additional argument. And that gift is not just a gift. It is a REGISTERED gift.

Courts will not start to void agreements at the land department because a couple fights. They are registered as a protection.

For me, it is clear.

1) the publicity affects third party by the simple fact of registration.

2) The spirit of the law is to protect the marital regime and registered agreements

3) On top of that, if the usufruct is given for free, it is a gift and personal property.

Courts will not break registered rights or gifts unless conditions are not respected IF there are conditions.

Courts have to protect the stability of transactions between people and all the above shows it.

They also have to protect public order.

This is why you can't find one decision breaking a usufruct based on 1469. Someone put a doubt in your mind, but imagine is ALL contracts done by spouses like gifts were cancelled because of 1469. And gifts are not registered.

Courts protects them: It is public order.

The argument is stronger than for gifts. Usufructs are register (if properly done, and could get extras by having a separate agreement made by knowledgable attorneys).

Do you know Robert from Samui For Sale? He also likes these debates and probably read that topic...

[kimmy]

Too much bla bla by the so called foreign legal experts. After your marriage, as is in most jurisdictions, including Thailand, personal property and creation community or marital property is governed by marriage laws. You can enter into any contract with your wife, give away personal asstes to your spouse and transfer it at the land office, or enter into a usufruct or whatever during marigae, but the law specifies it can be avoided, voided, cancelled or whatever you like to call it if it is in conflict with the system of matrimonial property, as can be found in the civil code. Any judge in a contested divorce will look at this system as laid down in the civil code. It does not mean you always lose a usufruct but it can be cancelled, especially in a contested divorce by a court, no doubt.

[bangkoklawyer24]

Hi Bangkoklawyer24.

...

To be friendly should be normal between "Colleagues" or between "Foreigners" in Thailand.

I know it isn't the case and that's why I am avoiding forums for few years.

Thanks for your advocacy for friendliness. I remember your last friendly comment at a LinkedIn post about lease registration issues:

[johnnybgood]

Too much bla bla by the so called foreign legal experts. After your marriage, as is in most jurisdictions, including Thailand, personal property and creation community or marital property is governed by marriage laws. You can enter into any contract with your wife, give away personal asstes to your spouse and transfer it at the land office, or enter into a usufruct or whatever during marigae, but the law specifies it can be avoided, voided, cancelled or whatever you like to call it if it is in conflict with the system of matrimonial property, as can be found in the civil code. Any judge in a contested divorce will look at this system as laid down in the civil code. It does not mean you always lose a usufruct but it can be cancelled, especially in a contested divorce by a court, no doubt.

You're not wrong,

I follow all this stuff about land / property / marriage here in LOS.

I'm always trying to find some kind of definitive answer.

There are foundations of sand every which way.

After 15 years married here, all is still good personally............. but a contested divorce? Shark infested waters!

IMHO spend what you can comfortably walk away from.

Better for peace of mind, no matter what happens romantically, politically or financially.

Good luck to all the people who haven't been reading these type of forums for the last dozen years.

[ThaiLawOnline]

Bangkoklawyer24:

You must be Ulrich Eder!

If I wrote it, it was because I was believing it.I do remember an article on Linkedin that was rubbish about leases in Thailand. I didn't keep a copy.

I also wrote that there was a lot of bullshit as my first remark on this topic. And I explained why. I am sorry that the word "bullshit" was used twice in 5 months and seem to have hit your sensitive spot.

I rarely have seen so much bullshit on a legal subject... again! Maybe it is because I have a deep knowledge of usufructs. I actually teach it to Thai lawyers, because I learned it at university. Not on a forum or website. (...)

Some law firms have interest to sell companies and complex lease structures instead of simple solution.

You seem to link often your posts to Facebook for selling services.

That is good marketing, fine.

I am talking about Law here and you don't answer my arguments. From a Dr, it is a compliment.

You also don't provide any Court case showing that usufructs can be cancelled by a Court under 1469.

Let's forget that you are angry about me and just answer my arguments.

Could you provide a copy of your text about the lease? I will explain why I believe it was a "bullshit article".

Could you show us a decision where 1469 was used in a Court case in Thailand against a usufruct registered?

Thanks.

[ThaiLawOnline]

After 15 years married here, all is still good personally............. but a contested divorce? Shark infested waters!

(...)

Good luck to all the people who haven't been reading these type of forums for the last dozen years.

I fully agree.

[ThaiLawOnline]

I found your article (actually someone sent it to me....):

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

Just on the first paragraph.

=========

ABSTRACT: In Thailand the registration of a real estate lease at the local land office is often marketed as a special lessee protection scheme to nicely compensate the foreign investor for the legal restriction to acquire land ownership. The inconvenient truth is that the land office registration does not at all benefit the lessee. It does not provide him with any additional protection against insolvency, default, fraud, loss or other risks. This is the second part of the Property Lease Trilogy. The legal guide to Thai land ownership can be found <here>.

========

1. to nicely compensate the foreign investor?

A person who wants to register a lease is not necessarily a FOREIGNER or AN INVESTOR. It is just a requirement for any lease of more than 3 years to be enforceable under Thai law. And does it NICELY COMPENSATE? Compensation is actually a legal term. You should know. It is not a compensation. You compensate for damages, a loss, injury, etc.

2. a special lessee protection scheme?

It is not a plan, a design, or a plot, an intrigue. It is not special at all. It is a legal requirement to be enforceable for more than 3 years...

========

I do have problems when legal articles are written in these ways: David Copperfield, black magic, broken wand, magic trick, etc. In a trilogy, just like Lords of the Ring to explain a part of real estate law. Your reply was funny and I didn't see it until today. It is attached.

Now please, could we please go back to the question I was asking you?

Could you show me an example of a usufruct broken under 1469 of the Thai commercial and Civil Code?

I sincerely didn't remember that article posted on Linkedin. I am surprised that you remember my reply and use it to justify your legal arguments.

[bangkoklawyer24]

Too much bla bla by the so called foreign legal experts. After your marriage, as is in most jurisdictions, including Thailand, personal property and creation community or marital property is governed by marriage laws. You can enter into any contract with your wife, give away personal asstes to your spouse and transfer it at the land office, or enter into a usufruct or whatever during marigae, but the law specifies it can be avoided, voided, cancelled or whatever you like to call it if it is in conflict with the system of matrimonial property, as can be found in the civil code. Any judge in a contested divorce will look at this system as laid down in the civil code. It does not mean you always lose a usufruct but it can be cancelled, especially in a contested divorce by a court, no doubt.

You are right, "too much bla bla". As Albert Einstein said, if you can't explain it simply, you don't understand it well enough. Simply said,

1. The wording of the law does not exclude a Usufruct or any other real right from the applicability of Section 1469 CCC.

2. You described already correctly the purpose of the law which requires the applicability of Section 1469 CCC to Usufructs.

3. There seems to be no court decision that limits the applicability of that section in Usufruct cases. If the courts are silent on this matter - neither yes nor no - this is from my viewpoint a strong indication that they understand the law as it is written in the law book.

4. There are some lengthy explanations which should give some doubts to that result, but are too far-fetched to convince me - everyone should decide by himself.

As a consequence I see it as high-risky that a Usufruct will survive a hostile divorce. And I do not need any supporting court decision to strictly refrain from advising a foreigner in Thailand, that a Usufruct with his Thai wife is a reasonable investment structure. Usufructs between married couples and other "simple solutions" turn more foreign investments into a financial nightmare than all the bars of Pattaya.

[kimmy]

IMHO spend what you can comfortably walk away from.

That is the best advice you can give. You do not want to be in a situation where you need to rely on the law or a usufruct in Thailand. And who wants to be worth more dead than alive. Not me. And you do not want to end up like this guy, murdered by his thai wife, broke and trapped in Thailand.

[ThaiLawOnline]

1. The wording of the law does not exclude a Usufruct or any other real right from the applicability of Section 1469 CCC.

2. You described already correctly the purpose of the law which requires the applicability of Section 1469 CCC to Usufructs.

3. There seems to be no court decision that limits the applicability of that section in Usufruct cases. If the courts are silent on this matter - neither yes nor no - this is from my viewpoint a strong indication that they understand the law as it is written in the law book.

4. There are some lengthy explanations which should give some doubts to that result, but are too far-fetched to convince me - everyone should decide by himself.

As a consequence I see it as high-risky that a Usufruct will survive a hostile divorce. And I do not need any supporting court decision to strictly refrain from advising a foreigner in Thailand, that a Usufruct with his Thai wife is a reasonable investment structure. Usufructs between married couples and other "simple solutions" turn more foreign investments into a financial nightmare than all the bars of Pattaya.

Thanks for answering. I appreciate.

1. The wording doesn't exclude any AGREEMENT (not only real rights) but does exclude when it affects third parties. To my humble opinion: registration has this power. But Thai Courts could decide otherwise. See below, I will help you about your argument.

2. Thanks.

3. Agreed. But there are many decisions cancelling leases.

4. Opinions can diverge. Still I never seen one usufruct cancelled by a Court. Leases, yes.

We do a lot of divorces and real estate law. I might have been a little too far but I wanted to test you.

I wanted to see if you could come up with decisions that are not on Internet but that Thai lawyers can easily find.

Because there is a lot of "selling legal services texts" on internet, misinformation, and the law is not always clear.

Especially in Thailand. I feel like sometimes it is a LAWLESS country and they all decide whatever they want.

There are decisions of the supreme Court cancelling gifts under 1469.

Please verify with decisions 4744/2539 and 674/2543 of the Supreme Court of Thailand.

You will see that your argument with 1469 is not bad.

They basically say that gifts can be cancelled by 1469 because when people are "in love" they can act crazy and maybe they don't really "consent". You can apply this to usufruct. So forget some parts of what I wrote above. I knew it already.

I wanted to prove that debates on forum are often by people that don't really have a deep knowledge of how the system works.

They often talk about THEIR CASE, where one situation occurred. But in others, it is different. And when you do that for years, you know that anything can happen in Thailand.

We added a clause in our usufruct agreement to avoid the application of these decisions. We can just try to do our best.

I am giving you reason in parts. But our Thai attorneys would say the opposite in Court!

I prefer to do any real estate agreement when spouses are not married and we put info in their prenuptial, for example.

Usufructs, leases, superficies, MOU, mortgages, nothing is perfect as it is not full ownership. But I agree with the person who stated above that most Court will be fair when you are married anywhere in the world (in most cases) and will treat people equally.

I hope your are doing well and I will stop answering this topic.

I need to spend time with my Thai wife to avoid a costly divorce...

[bangkoklawyer24]

1. The wording of the law does not exclude a Usufruct or any other real right from the applicability of Section 1469 CCC.

2. You described already correctly the purpose of the law which requires the applicability of Section 1469 CCC to Usufructs.

3. There seems to be no court decision that limits the applicability of that section in Usufruct cases. If the courts are silent on this matter - neither yes nor no - this is from my viewpoint a strong indication that they understand the law as it is written in the law book.

4. There are some lengthy explanations which should give some doubts to that result, but are too far-fetched to convince me - everyone should decide by himself.

As a consequence I see it as high-risky that a Usufruct will survive a hostile divorce. And I do not need any supporting court decision to strictly refrain from advising a foreigner in Thailand, that a Usufruct with his Thai wife is a reasonable investment structure. Usufructs between married couples and other "simple solutions" turn more foreign investments into a financial nightmare than all the bars of Pattaya.

Thanks for answering. I appreciate.

...

Especially in Thailand. I feel like sometimes it is a LAWLESS country and they all decide whatever they want.

...

Sorry, if I do not invest the time to correct the misunderstandings. No need to thanks for answering, because I did not answer to you, but to someone else. The comment "Thailand is a lawless country" is in my eyes just a lame excuse not to do things right.