Usefrukt

[swissie]

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.

Thanks Sebastian, as opposed to your intent, you have now delivered all the reasons for a Farang not to get involved in any Real-Estate Deal unless it's the purchase of a Condo.

Cheers.

[bangkoklawyer24]

Thanks Sebastian, as opposed to your intent, you have now delivered all the reasons for a Farang not to get involved in any Real-Estate Deal unless it's the purchase of a Condo.

Cheers.

99 percent of lawyers give the rest a bad name.

[topt]

Thanks Sebastian, as opposed to your intent, you have now delivered all the reasons for a Farang not to get involved in any Real-Estate Deal unless it's the purchase of a Condo.

Cheers.

99 percent of lawyers give the rest a bad name.

As a generalisation that is probably about the only thing 99 per cent of the readers here may agree on - certainly not swissie's interpretation