Ownership/Usufruct/Inheritance Mess

[sometimewoodworker]

1 hour ago, Old Croc said:

I hold a usufruct for my life on the land owned by my Thai defacto wife.

One of the reasons I went this way was the fact that it allows me to rent or lease the property to a third person. My thinking was that if the wife predeceases me and I decide to move elsewhere I can still get income from the property.  The "fruits" referred to in the name usufruct.

If I were to lease the property for a 30 year term shortly before my death the lease stands for that term.

This would be one way for your friends to pass it on to their heirs

As all are aware the land belongs to the Thai surrogate, and sooner or later he, or his, will want to get their hands on it.   

 

Old croc is correct 

the usufruct is either for a set term or the life of the usufructee.

It can not be transferred.

It can not be passed on in a will.

It can only be terminated.

 

However the usufructee can issue a lease and that lease is not terminated by the termination of the usufruct. AFIK That lease can be transferred. However if the lease is for more that 3 years AFIK you register it with, and have to get the agreement of, the land office 

[KKr]

IF a Usufruct can be transferred, the transfer does not extend the original term, and in any case terminates with the death of the latest beneficiary. (So if in this case the child were to die before the parent, the usufruct terminates.)
It would be VERY interesting to know whether the Owner does have to approve the transfer of the usufruct.
I would think in Thailand the owners approval is required, on the other hand, the owners' legal position does not change and therefore in theory it could be possible.

[chiang mai]

1 minute ago, sometimewoodworker said:

 

Old croc is correct 

the usufruct is either for a set term or the life of the usufructee.

It can not be transferred.

It can not be passed on in a will.

It can only be terminated.

 

However the usufructee can issue a lease and that lease is not terminated by the termination of the usufruct. AFIK That lease can be transferred. However if the lease is for more that 3 years AFIK you register it with, and have to get the agreement of, the land office 

 

That contradicts Blackcab's post above, let's wait and see what else surfaces on this.

[chiang mai]

2 minutes ago, KKr said:

IF a Usufruct can be transferred, the transfer does not extend the original term, and in any case terminates with the death of the latest beneficiary. (So if in this case the child were to die before the parent, the usufruct terminates.)
It would be VERY interesting to know whether the Owner does have to approve the transfer of the usufruct.
I would think in Thailand the owners approval is required, on the other hand, the owners' legal position does not change and therefore in theory it could be possible.

 

It's interesting that a lease granted by the usufruct holder will survive the death of that person yet you state that a transferred usufruct would not, the two seem at odds and must be questionable. I agree however that it will be interesting to find out i the chanotte holder must approve the transfer.

[KKr]

From Samuiforsale:
A few facts about usufruct in Thailand

• The usufructuary does not obtain the title to the property, nor can he sell or consume the property;
• The usufructuary must take as much care of the property as a person of ordinary prudence would take of his own property;
• The usufructuary is NOT allowed to transfer the right of usufruct, but he is allowed transfer the exercise of his right under the usufruct to another person contrary to the right of habitation (the person granted a right of habitation can't transfer the exercise of his rights); 
• The usufruct is not transferable by inheritance;
• The usufruct is governed by the sections 1417 to 1428 Civil and Commercial Code

[chiang mai]

So the short answer seems to be that, according to  that link, there is no way the usufruct can be transferred and if the original usufruct holder dies, the entire family's rights to access or use is cancelled. Anyone disagree?

 

There would be little point in the current usufruct holders transferring their rights to one of their children since the current holders live in the property plus all rights will be cancelled upon death of the current occupants.

 

Unless anyone wants to challenge this, I think we have our answers.

[KKr]

that seems to be the correct wrap up.

Your friend could consider however the Superficies.
Just make sure he can proof he is owner of the house,
transfer of the ownership is not a very big expense really.
I switched between Superficies and Usufruct within an hour or so.
One gets cancelled, the other vested. Two contracts signed with the owner and done.

[louse1953]

Your friend has no idea and has not done his homework.Too clever by half.Som nom na.

[sometimewoodworker]

1 hour ago, chiang mai said:

 

It's interesting that a lease granted by the usufruct holder will survive the death of that person yet you state that a transferred usufruct would not, the two seem at odds and must be questionable. I agree however that it will be interesting to find out i the chanotte holder must approve the transfer.

 

Not at all at odds.

the usufruct gives you the right, for the limited term of the usufruct, to act in place of the owner of the land (of course you never own the land) 

 

It would be a very unusual lease that terminated with the death of the landlord or sale of the land by him. 

 

The owner (or usufructee) can grant a lease, unless there is any clause in that lease it will survive the death or transfer of ownership of the land. AFIK In Thailand a lease of more than 3 years has to be registered with the local land office. And as TIT they can refuse to permit it (as they can refuse an usufruct)

 

Further you may not have noticed that an usufruct can not be transferred. It can only be terminated and another usufruct registered (if the land owner agrees to the new usufruct)

[chiang mai]

1 hour ago, louse1953 said:

Your friend has no idea and has not done his homework.Too clever by half.Som nom na.

 

That was kind of you to say, do you feel better now!

[bazza40]

I'd suggest the OP's friend needs a Thai AND a UK will at minimum, before resolving the other issues. Probably easier to sell up and rent.

[Boycie]

 

[ozyjon]

Buying / having a holiday home abroad has always had a mystique about it,

we are going to our holiday home in Thailand, Majorca, Bali, Caribbean, you

name it would make anyone jealous, now the rose tinted glasses come off,

what are you up for,,

a property that needs year round maintenance

a property that is devaluing daily

taxes, because you live abroad you pay double

if you are a US citizen feel free to cry at any time

squatters

theft

inheritance / land taxes

when you want to sell no buyers for you, they are all looking at the new place next door

a new law in Portugal is to be implemented,

it goes like this, your property tax will increase based on,

how close to the water your property sits

how much sunlight it gets

the size of terraces and verandas

if it has a pool,,,

and people still want to buy a holiday home outside their country of origin,

sheer madness,,,

 

http://www.theportugalnews.com/news/daylight-robbery/39066

[GOLDBUGGY]

On ‎8‎/‎8‎/‎2016 at 6:53 AM, chiang mai said:

I strongly suspect that Blackcab is correct in what he says, especially given his track record of advice on property related issues on TVF. What further convinces me that is the case is that the holder of an usufruct can offer the subject property for lease to a third party that will remain in place after his/her death, the lease would not expire when the usufruct holder dies. It therefore follows that an usufruct that is passed on also does not expire.

 

Note: the land vs house ownership is a red herring in this debate, it's not applicable.

He is correct in what he said by now try to understand what he said.

 

He said that the Usufruct is only good until the person who took out the usufruct dies. I this case you said he only took it out for 30 years, and lot life, so it is only good for 30 years. So leasing it to his kids for 5o years doesn't change a thing. They can stay there as long as he is still alive, and finish.

 

The Owner however can pass this property on to his kids if he dies and wishes this. They still have to respect the Usufruct rights to the property, but once the 30 years are up they get it all. So if your friends intentions was to make sure the owners kids get this property after he passes on, well then he achieved that.

 

Under his circumstances, I think he would had done much better to just sell his property when he had the chance and start over. I suppose he could still give this property to his kids when he is still alive. Hard for them to prove he died, unless they tell them. So they have 30 years at least.

[chiang mai]

19 minutes ago, GOLDBUGGY said:

He is correct in what he said by now try to understand what he said.

 

He said that the Usufruct is only good until the person who took out the usufruct dies. I this case you said he only took it out for 30 years, and lot life, so it is only good for 30 years. So leasing it to his kids for 5o years doesn't change a thing. They can stay there as long as he is still alive, and finish.

 

The Owner however can pass this property on to his kids if he dies and wishes this. They still have to respect the Usufruct rights to the property, but once the 30 years are up they get it all. So if your friends intentions was to make sure the owners kids get this property after he passes on, well then he achieved that.

 

Under his circumstances, I think he would had done much better to just sell his property when he had the chance and start over. I suppose he could still give this property to his kids when he is still alive. Hard for them to prove he died, unless they tell them. So they have 30 years at least.

 

What you wrote makes absolutely no sense whatsoever, sorry, but I've read it several times and it really doesn't.

[chiang mai]

I think we have our answers on this so rather than confuse matters I'll ask the mods if they will close the thread, many thanks to those who supplied useful answers.

[Scott]

Per request, this thread is now closed.