Has Anyone Put A Usufruct To The Test?

[Mobi]

I have a usufruct registered in my land deeds (now wife's), which give me a lifetime right of tenure on the house and land.

Has anyone out there put the legality of this document to the test?

Or, to put it crudely, has anyone holding such a document, tried to remove the land title holder (wife) from the land?

Can it be done? If so, how? Would I need a lawyer? What happens if she doesn't want to go? What rights would she have on the land - if any?

Would appreciate any advice, knowledge, opinions.

Thanks

Mobi

[mpdkorat]

I have a usufruct registered in my land deeds (now wife's), which give me a lifetime right of tenure on the house and land.

Has anyone out there put the legality of this document to the test?

Or, to put it crudely, has anyone holding such a document, tried to remove the land title holder (wife) from the land?

Can it be done? If so, how? Would I need a lawyer? What happens if she doesn't want to go? What rights would she have on the land - if any?

Would appreciate any advice, knowledge, opinions.

Thanks

Mobi

As far as I know this has never really been tested, but I would also be very interested in peoples responses.

[Nadia 2]

A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.

It could be helpful to protect against relatives if the usufruct is confirmed in a will

[Mobi]

A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.

It could be helpful to protect against relatives if the usufruct is confirmed in a will

Hi Nadia,

Thanks very much for your opinion - it is appreciated.

I may may not be thinking very straight tonight as there's an empty bottle of wine or two in my bin, but from what I can extrapolate from your post, there seems to be little point in a farang going the 30 year lease or ufustruct route with his Thai wife, if it can be so easily be voided.

Doesn't seem worth the effort or cost involved

[Sunbelt Asia]

A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.

It could be helpful to protect against relatives if the usufruct is confirmed in a will

Hi Nadia,

Thanks very much for your opinion - it is appreciated.

I may may not be thinking very straight tonight as there's an empty bottle of wine or two in my bin, but from what I can extrapolate from your post, there seems to be little point in a farang going the 30 year lease or ufustruct route with his Thai wife, if it can be so easily be voided.

Doesn't seem worth the effort or cost involved

I don't think Nadia would agree with that point, "it would be easily voided." It has never happen with a usufruct and were not aware of one case on a 30 year lease, it was reversed.

However Nadia has pointed out, how he would argue if he represented the wife. At the end of the day, it is a contract with benefit to the wife. As well, if the wife has signed a separate agreement stating she understood what she was doing and why she was doing with no legal recourse. You then would certainly be better off with a usufruct than just having the land in her name with knowing you will get zero from the land.

If it was easy voidable, the land officer would never made it so hard to obtain the usufruct in the first place!

The bottom line, you have the right to decide who will be on the land as you have the right to manage the land. Thats the law.

What rights would she have on the land - if any?

Owning the land with a servitude to you which allows you to decide who will be on the land and house.

www.sunbeltasiagroup.com

[Mobi]

A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.

It could be helpful to protect against relatives if the usufruct is confirmed in a will

Hi Nadia,

Thanks very much for your opinion - it is appreciated.

I may may not be thinking very straight tonight as there's an empty bottle of wine or two in my bin, but from what I can extrapolate from your post, there seems to be little point in a farang going the 30 year lease or ufustruct route with his Thai wife, if it can be so easily be voided.

Doesn't seem worth the effort or cost involved

I don't think Nadia would agree with that point, "it would be easily voided." It has never happen with a usufruct and were not aware of one case on a 30 year lease, it was reversed.

However Nadia has pointed out, how he would argue if he represented the wife. At the end of the day, it is a contract with benefit to the wife. As well, if the wife has signed a separate agreement stating she understood what she was doing and why she was doing with no legal recourse. You then would certainly be better off with a usufruct than just having the land in her name with knowing you will get zero from the land.

If it was easy voidable, the land officer would never made it so hard to obtain the usufruct in the first place!

The bottom line, you have the right to decide who will be on the land as you have the right to manage the land. Thats the law.

What rights would she have on the land - if any?

Owning the land with a servitude to you which allows you to decide who will be on the land and house.

www.sunbeltasiagroup.com

Thanks Sunbelt

Now I feel a bit better. (no wine today either )

[sbk]

So, a usufruct would be the best solution for the widow/er of a Thai person when the usufruct was made before death (obviously) and reconfirmed in the will?

[Sunbelt Asia]

Thanks Sunbelt

Now I feel a bit better. (no wine today either )

So, a usufruct would be the best solution for the widow/er of a Thai person when the usufruct was made before death (obviously) and reconfirmed in the will?

In our opinion, yes. But the will would also leave the house and land to the foreigner. Up to one rai is allowed if approved by the Minister. The balance must be sold at public auction in a year. As well if the rai inheritance is not allowed.

However the winning bidder must honor the servitude.

www.sunbeltasiagroup.com

[dsfbrit]

So, a usufruct would be the best solution for the widow/er of a Thai person when the usufruct was made before death (obviously) and reconfirmed in the will?

When I was considering my options relating to moving the land I have in a company name to my wife I considered the scenario:

- I am separated from my wife and likely to divorce and so she changes the Will to benefit her family.

I am not trying to be awkward, but this seems such a posibility in any country and between any couple that it has put me off this and the lease method for now.

If she were to change the Will and she died, I would have contact with the family for the rest of my life in the case of the Usufruct or the remainder of the 30 year lease.

Do you think I am wrong in thinking this is a potential drawback here??

Sunbelt, in relation to Mobi's original question, do you know of any actual cases that have gone to court?

Is it possible to visit the courts in Thailand in the 'public gallery' as in the UK - I would find it quite interesting?

Do they have Civil Courts as well as Criminal Courts over here or is all litigation in the same court here?

Edited November 18, 2006 by dsfbrit

[Nadia 2]

A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.

It could be helpful to protect against relatives if the usufruct is confirmed in a will

I don't think Nadia would agree with that point, "it would be easily voided." It has never happen with a usufruct and were not aware of one case on a 30 year lease, it was reversed.

However Nadia has pointed out, how he would argue if he represented the wife. At the end of the day, it is a contract with benefit to the wife. As well, if the wife has signed a separate agreement stating she understood what she was doing and why she was doing with no legal recourse. You then would certainly be better off with a usufruct than just having the land in her name with knowing you will get zero from the land.

If it was easy voidable, the land officer would never made it so hard to obtain the usufruct in the first place!

The bottom line, you have the right to decide who will be on the land as you have the right to manage the land. Thats the law.

What rights would she have on the land - if any?

Owning the land with a servitude to you which allows you to decide who will be on the land and house.

www.sunbeltasiagroup.com

The undue influence argument in my previous post is correct and could be ground for will contest by the Thai spouse. Historically undue influence between spouses goes all the way back to Roman law. Mobi would in a divorce have to, say, disprove undue influence. If the usufruct (or lease) is a gift or for a token amount Mobi will not have a chance.

Like said in my previous post, a usufruct 'for free' is valid if it is given out of a moral duty to protect a surviving foreign spouse (this will not be seen as a gift), should the Thai spouse pass away.

NB the usufruct is for life and not limited to 30-years as some suggest (Dragonman), it is only limited to 30-years if the usufructuary is for the life of a juristic person.

[Mobi]

The undue influence argument in my previous post is correct and could be ground for will contest by the Thai spouse. Historically undue influence between spouses goes all the way back to Roman law. Mobi would in a divorce have to, say, disprove undue influence. If the usufruct (or lease) is a gift or for a token amount Mobi will not have a chance.

Like said in my previous post, a usufruct 'for free' is valid if it is given out of a moral duty to protect a surviving foreign spouse (this will not be seen as a gift), should the Thai spouse pass away.

NB the usufruct is for life and not limited to 30-years as some suggest (Dragonman), it is only limited to 30-years if the usufructuary is for the life of a juristic person.

I have a very detailed statement in Thai, signed by my wife and duly witnessed, that is in support of the Usufruct Contract.

I will not reproduce a translation of this document here, as there are 8 seperate support statements made, but in essence, it reaffirmns my wife's position that she agreed to and signed the usufruct under no duress, threat of bodily harm, threat of financial harm, undue influence of any kind or nature etc etc. She was also spoken to by an independant lawyer who explained exactly what she was signing, and ensured that she was happy to do so.

Surely all this would strengthen my case, should a divorce ensue and I wished to evict her from the land?

[Dragonman]

A 30-year lease or usufruct should be fine should your Thai spouse pass away. However in case of divorce I have my doubts. It is possible to argue that these kinds of contracts (with a few exemptions) between husband and wife are easily voidable in a divorce procedure. Marriage is a relationship between parties which will raise a presumption of undue influence and could be ground for will contest by the Thai spouse. The lease or usufruct is voidable by the Thai spouse, and the remedy is rescission. The Thai spouse may also have the lease or usufruct set aside for actual undue influence if there is evidence that the power was unbalanced at the time of the signing of the contract or when it gives an excessive benefit to the foreign spouse.

It could be helpful to protect against relatives if the usufruct is confirmed in a will

I don't think Nadia would agree with that point, "it would be easily voided." It has never happen with a usufruct and were not aware of one case on a 30 year lease, it was reversed.

However Nadia has pointed out, how he would argue if he represented the wife. At the end of the day, it is a contract with benefit to the wife. As well, if the wife has signed a separate agreement stating she understood what she was doing and why she was doing with no legal recourse. You then would certainly be better off with a usufruct than just having the land in her name with knowing you will get zero from the land.

If it was easy voidable, the land officer would never made it so hard to obtain the usufruct in the first place!

The bottom line, you have the right to decide who will be on the land as you have the right to manage the land. Thats the law.

What rights would she have on the land - if any?

Owning the land with a servitude to you which allows you to decide who will be on the land and house.

www.sunbeltasiagroup.com

The undue influence argument in my previous post is correct and could be ground for will contest by the Thai spouse. Historically undue influence between spouses goes all the way back to Roman law. Mobi would in a divorce have to, say, disprove undue influence. If the usufruct (or lease) is a gift or for a token amount Mobi will not have a chance.

Like said in my previous post, a usufruct 'for free' is valid if it is given out of a moral duty to protect a surviving foreign spouse (this will not be seen as a gift), should the Thai spouse pass away.

NB the usufruct is for life and not limited to 30-years as some suggest (Dragonman), it is only limited to 30-years if the usufructuary is for the life of a juristic person.

Where does this final paragraph come from? Usufructs are based on whatever timescale you detail in "the usufruct". I agree with the undue influence argument, but are you saying usufructs can only be for life. If so, not true, and since you have quoted Roman Law, check on this. The law is different with regard to lifetime and non lifetime usufructs.

[Nadia 2]

Good to see you back Dragonman. I agree it can be for whatever timescale, but I'm talking about the maximum term. If it is for the life of a natural person it is for life however long this may be, if it is for the life of a juristic person it will be limited to 30 years.

[Dragonman]

Good to see you back Dragonman. I agree it can be for whatever timescale, but I'm talking about the maximum term. If it is for the life of a natural person it is for life however long this may be, if it is for the life of a juristic person it will be limited to 30 years.

Thanks, Nadia 2. I agree that the Code specifies life, but am still convinced that the Leasehold Acts will have the final say in restricting foreigners to 30 years. Recently Judges have been feeling more confident in ignoring "alien" rights under the former Constitution. I see little reason why this will change.