USUSFRUCT in SAMUI - LAWYER

[BillBilous]

Dear ALL

 

Can anyone recommend a reliable efficient Lawyer in SAMUI to assist me in creating an Usufruct for Land lease (30 years + with the right to build a house) and the expect fees to create an Usufruct.

Additionally has anyone with recent experiences of Usufructs any worthy comments or suggestion or inclusions I should consider putting into the contract 

(please not heresay or wild speculations)

 

In anticipation , Thanks  

[chiang mai]

No I can't but here's a few pointers/questions:

 

Do you want a 30 year lease or an usufruct? (I have an usufruct for life in Chiang Mai)

 

It costs 65 baht to register an usufruct at the Land Office.

 

The maximum allowable lease duration in Thailand is 30 years, if anyone tries to tell you that 30+30 etc exists, they're lying.

 

I would not recommend using a lawyer on Samui, instead I would use one from say Bangkok, Samui is far too small and connected for you to be assured of an independent lawyer.

 

[BillBilous]

Thanks for the message,

I want a Usufruct for life (can it be passed onto to a relative ?)

I have seen a few specimen templates, but I want a little more detail as I want the right to build a house upon this land 

I take your point about the close  Samui being a close community, 

I will broaden my lawyer search to possibly include  BKK, 

Many thanks its been good advice 

 

Can anyone else add comment about inclusions I should consider int the USUSfruct contract ?

THANKS 

 

[chiang mai]

TVF member Blackcab is very knowledgable on this subject so if he doesn't comment here, perhaps PM him.

 

An usufruct ceases when you die or at the end of the term specified in it.

 

Just one more point. An usufruct is a right which doesn't require terms and conditions adding to it, once the usufruct has been granted you are in control of the real estate. Have you thought about who is going to grant you that usufruct and how? Do you already know a Thai person who has land that has agreed to grant you the usufruct and if not, how are you going to get hold of that person/land?

[cornishcarlos]

OP, could you provide a link to a Usufruct template ?
I need to get one too, but if its just a matter of registering at the land office and annotated on the chanote, why a need for a lawyer ?

[khunPer]

You should also check "Superficies" if you want to build a house. Usufract can go on for life, whilst Lease is limited to 30 year only. You can read more about it on Samui for Sale.

 

I had good experience with this lawfirm in Bo Phut.

[Tropicalevo]

20 hours ago, chiang mai said:

No I can't but here's a few pointers/questions:

 

Do you want a 30 year lease or an usufruct? (I have an usufruct for life in Chiang Mai)

 

It costs 65 baht to register an usufruct at the Land Office.

 

The maximum allowable lease duration in Thailand is 30 years, if anyone tries to tell you that 30+30 etc exists, they're lying.

 

I would not recommend using a lawyer on Samui, instead I would use one from say Bangkok, Samui is far too small and connected for you to be assured of an independent lawyer.

 

 

The 30+30 comment is not quite true.

 

You can have a 30 year lease with a 30 year extension BUT the extension is not automatic. As always in Thailand, there may be some hazy areas. (I did attend a law course for foreigners in Bangkok where this was explained.)

 

More than 30+30 is illegal and therefore not valid.

 

We were also advised to put possible heirs on the lease as when all of the lessees are dead, the lease expires. ie if there is not a living person named on the lease. You cannot leave property on the lease in a will.

 

I do not know if the same is true of a usufruct. This was not covered on the course.

 

For something like this on Samui, I would use Manit and Associates. Kh Manit used to work for Tilleke and Gibbins in Bangkok - a well respected law firm.

Edited December 1, 2016 by Tropicalevo

[chiang mai]

2 minutes ago, Tropicalevo said:

 

The 30+30 comment is not quite true.

 

You can have a 30 year lease with a 30 year extension BUT the extension is not automatic. As always in Thailand, there may be some hazy areas. (I did attend a law course for foreigners in Bangkok where this was explained.)

 

More than 30+30 is illegal and therefore not valid.

 

We were also advised to put possible heirs on the lease as when all of the lessees are dead, the lease expires. ie if there is not a living person named on the lease. You cannot leave property on the lease in a will.

 

I do not know if the same is true of a usufruct. This was not covered on the course.

 

The first 30 year lease can't guarantee the second 30 year lease so in that respect the maximum allowable lease is 30 years. Whilst I agree the first lease may point to the possibility of an extension or  second term, it is not guaranteed under law.

[khunPer]

2 hours ago, chiang mai said:

 

The first 30 year lease can't guarantee the second 30 year lease so in that respect the maximum allowable lease is 30 years. Whilst I agree the first lease may point to the possibility of an extension or  second term, it is not guaranteed under law.

A Lease Agreement can only for for one 30 year period, and shall not include any option for another. If it does, the first Lease Agreement is legally void.

 

I always heard from my lawyer, that  you can make a separate contract, that lessor will let you lease for 30 years from the date your original Lease Agreement expires, but that document has noting to do with the lease, and if lessor by that time don't want to give you another lease or change the terms, you will need to open a civil court case against lessor. What if lessor has died in the meantime, or sold the land (the new owner will meet the original agreement only, as stipulated in the servitude on back of the deed)..? In other words, that extra option may not be woth the paper it's written on...

[chiang mai]

1 hour ago, khunPer said:

A Lease Agreement can only for for one 30 year period, and shall not include any option for another. If it does, the first Lease Agreement is legally void.

 

I always heard from my lawyer, that  you can make a separate contract, that lessor will let you lease for 30 years from the date your original Lease Agreement expires, but that document has noting to do with the lease, and if lessor by that time don't want to give you another lease or change the terms, you will need to open a civil court case against lessor. What if lessor has died in the meantime, or sold the land (the new owner will meet the original agreement only, as stipulated in the servitude on back of the deed)..? In other words, that extra option may not be woth the paper it's written on...

 

Agreed, we're saying the same thing.

[PoorSucker]

Then there are all the foreigners that makes lease and usufruct with their wife, not worth the paper it's written on.

 

Section 1469 of the Civil and Commercial Code:

 

'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 right of third persons acting in good faith is not affected thereby'.

[cornishcarlos]

Then there are all the foreigners that makes lease and usufruct with their wife, not worth the paper it's written on.
 
Section 1469 of the Civil and Commercial Code:
 
'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 right of third persons acting in good faith is not affected thereby'.

But then it will protect you should your wife pass before you.. Any relatives come sniffing around for a free plot can get $%#@!

[PoorSucker]

19 hours ago, cornishcarlos said:

 

But then it will protect you should your wife pass before you.. Any relatives come sniffing around for a free plot can get $%#@!

 

 

You have one year to sell any land that you inherit from your wife.

[cornishcarlos]

 
You have one year to sell any land that you inherit from your wife.

And I'm sure you'd get a great price for it if the relatives decide that they want it :)

[chiang mai]

30 minutes ago, PoorSucker said:

 

You have one year to sell any land that you inherit from your wife.

 

But if you don't sell it in that year and it gets inherited by the family, you still have your usufruct and the usufrutee controls who can and cannot live there.

[Gulfsailor]

3 minutes ago, chiang mai said:

 

But if you don't sell it in that year and it gets inherited by the family, you still have your usufruct and the usufrutee controls who can and cannot live there.

And how does that affect the life expectancy of the usufructee?

[chiang mai]

Just now, Gulfsailor said:

And how does that affect the life expectancy of the usufructee?

 

You've been reading too many detective stories, in the real world, it doesn't.

 

What it does do is it gives the usufructee an opportunity (if he so chooses) to negotiate a conditional sale and get his money back.

[khunPer]

The problems with land, being an alien (farang), and wanting to own a house, is that you legally cannot own the land under your "dreamhouse". There are several solutions, but none are guaranteed troublefree, and some are in conflict with laws – the ones I've heard of are:

 

Land in your wife's name

–where any contract between husband and wife can be void if you consider lease or the like; and you need to sell the land, if you outlive your wife; however you may have half of it, in case of divorce.

 

Land in partner's name

–where you in fact own nothing, whilst the partner (often a Girlfriend in the horror-stories) has it all, in several bad cases leaving the farang looking for a tall building...

 

Lease of land

–where you only legally safe can lease up to 30-years (and forget leasing from wife), so if you plan to live longer than 30-years, you may loose your "dreamhouse" at old age.

 

Usufruct

–which is cheap and gives you right to "use the land and harvest the the fruits from it" for lifetime – your lifetime; and that mean in worst-case that you may be worth more dead than alive – the agreement should probably not be made between maried folks, as contracts between husband and wife can be void. You may need a separate document/permission to build a house.

 

Superficies

–that by some is claimed to be the best for building a house, as the superficies is the "real property right" and include permission to build a house. Again avoiding husband-wife contracts shall be considered.

 

Loan protection

–where you have a loan sertcitude, just like a mortgage, declared on the back of the title deed at Land Office. Some lawyers suggest that, as a possiblity to protect your investment – mind you, you have paid for both land and house – have a loan document made for the invested money, plus some interest; the land cannot be sold or transferred without all due payments have been settled. However again, this protection may not work between husband and wife.

 

Family land

–even you have all possible legal papers and any kind of imaginable protection, it can be an extreme burdon if something goes wrong between you and the spouse, and the local folks want the farang out from their family land. Perhaps this is one of the reasons for the saying: "Never invest more in Thailand, that you can afford to loose"; you may simple love your own life too much, so you don't want to stay there anymore...

 

Company Limited-method

–which by many are considered a safe way, espacially if the company has some other activities than owning a plot of land that it lease to the company's foreign shareholder. Lawyers have various ways to give you some level of protection, even you legally can own 49% only of "your company" and "your land". It's expensive, as you need to pay a lease to the company, and the company has on-going expenses for accountant and auditor, and must show a profit and pay tax.

 

Thai-child ownership

–is worth considering, if you have a child with Thai nationality. Minors can own land under guardian. To my knowledge there are no rules about agreements betwen parent and child can be void; however any lease, usufruct or superficies contract shall be made and stated on the back of the deed in the Land Office, before the land is transferred into the child's name, as many a Land Office will not accept any contracts later, which may be in disfavor of the child. Be aware, that the land may also not be able to be sold, before the child is of legal age (20+ years). Also worth thinking of is that moniors can be shareholders (under guardian), re. the above Company Limited-method, and the need of 51% Thai shareholdes.

 

The website "Samui for Sale" gives a good overview about the different possibilities and most stuff else to know, when considering property in Thailand.

 

And just as a remark, the worst land rip-off horror cases I know – not third-hand-stories, but the real thing – are by thai ladies without an entertainment background, the most incredible is actually by a hi-so Chinese lady from a good reputable family. And that remainds me about a sign in a bar in Chaweng – it's gone know, after the lady-owner of the bar, kicked her husband, who paid for her business, out – he had a big board hanging high-up (so the cleaners couldn't reach it) saying:

Thai ladies has been voted as the best housekeepers,

you buy, they keep.

PS: I own a "dreamhouse" at Samui – at least I dream I do...

[ChiangMaiLightning2143]

Buy a condo or rent.


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[evadgib]

Link of interest to the OP:

 

https://m.facebook.com/groups/389315034467102