Usufruct

[SoFarAndNear]

Hello,

 

I successfully registered an usufruct agreement today at the land department. There was one big problem. At first, the officer refused the application because the owner of the property is the mother of my child. The land department officer told us that the sale of the house was kind of illegal because the mother of my child did not stated that she has a child with a foreigner when she bought the house. She even would not be allowed to sell the property because she gave a false statement when she bought the house. She should have said that she has a child with a foreigner. Solution was that I had to sign a form that the money is from her and that I have no intention in ownership of the property not to mention that there was a demand of tea money for the resolving.

 

I don't feel that this was right because I am not married to the mother and I think it is a total unfair rule that a thai citizenship looses the right to buy/get land if she has a child with a foreigner ONLY if the father signs that he won't try to get any rights to the land. All in all it was a very depressing visit. The officers even advised her against doing this because they thing foreigners should not have the right for an usufruct. The officer lady was pretty shocked when I told her with my limited thai skils that I understood what she said.

[Khun Jean]

They so many times try. Seems like some feel like it is their duty to protect Thailand against foreigners while she drives home in her BMW, looks TV on a Samsung and plays with her iPhone eating japanese noodles with a glass of french wine. :)

Unfortunately they have these 'powers' to make it difficult for foreigners. It is the Thai who will have to do the arguing. As a foreigner you just have to utter 'Sin Somros' and 'Sin suan tua' to let them know you understand Thai law and are not interested in their personal quest to 'save' Thailand and Thais from foreigner. With a smile of course.

 

Seriously, the number of officials who do not know the law is very high. In a lot of cases you can ask for the manager, which sometimes is enough to get this straight. Often it is just a way to extract some money for them personally as they assume both the Thai and foreigner have no idea about the law.

Know your stuff (samuiforsale.com is a good starting point) and prepare.

 

.

 

[BEVUP]

14 hours ago, Khun Jean said:

They so many times try. Seems like some feel like it is their duty to protect Thailand against foreigners while she drives home in her BMW, looks TV on a Samsung and plays with her iPhone eating japanese noodles with a glass of french wine. :)

Unfortunately they have these 'powers' to make it difficult for foreigners. It is the Thai who will have to do the arguing. As a foreigner you just have to utter 'Sin Somros' and 'Sin suan tua' to let them know you understand Thai law and are not interested in their personal quest to 'save' Thailand and Thais from foreigner. With a smile of course.

 

Seriously, the number of officials who do not know the law is very high. In a lot of cases you can ask for the manager, which sometimes is enough to get this straight. Often it is just a way to extract some money for them personally as they assume both the Thai and foreigner have no idea about the law.

Know your stuff (samuiforsale.com is a good starting point) and prepare.

 

.

 

So the OP is learning & i don't see having a child with a foriegner has anything to do with it 

It's more likely they didnt now there was a foreigner involved as the just love to throw the Samuras form in your face to make you sign it saying that you have no financial interest in the property even though you may have fronted the money ( I even had to do one when my wife transferred to son )

So here's a hypothetical : Lets say the worst happened to my wife & son going somewhere in a tuk tuk & i being the next of kin in line & knowing foreigners cant own property & have to sell within the year How would that stack up against the signing of the Simros/Samros form

[Khun Jean]

You inherit it (hopefully there is a will otherwise the whole family will stand in line), and have a year to sell it. 

This is where a usufruct will be good to have.

[SOUTHERNSTAR]

According to my knowledge there is no such provision in any Thai law. I think somebody needed to service their BMW and saw you coming.  According to the law you have no legal link with this woman. The law only bring about a legal link when you are officially married and even then when the Thai woman buys land the husband's name is not on the Chanotte.

[Thaidream]

I agree- since you do not have a marriage certificate registered anywhere including any Amphur in Thailand- the land office was not correct in having you sign anything related to the land ownership.  You have no right to the land via inheritance as you are not married. The document that they registered indicates you may remain as a resident of the home no matter who the owner is.

Since I am legally married to a Thai, I have also had to sign one of the forms indicating I have no interest in the land. However, I do not think this is really legal because when my wife has also sold homes in Thailand- I have had to sign a form indicating I agree to the sale and have it  witness and notarized. In addition, should there be a divorce- the spouse is entitle to 50% of those things acquired after the marriage. In the event of death- the spouse even if a foreigner can inherit the land but must sell it within a years time.

I have found in Thailand that just because a Thai Government official is giving you information that doesn't make it correct or legal.

 

[Khun Jean]

1 hour ago, Thaidream said:

However, I do not think this is really legal because when my wife has also sold homes in Thailand- I have had to sign a form indicating I agree to the sale and have it  witness and notarized.

This is just to cover their asses. (This is the main reason why lots of things are difficult in Thailand, employees have no protection against wrong mistakes so the easiest way for them to stay out of problem when they are not 100% sure is to just say 'Mai dai'. Ask for someone who can make the decision, often the employees manager or even the head of the department).

1 hour ago, Thaidream said:

In addition, should there be a divorce- the spouse is entitle to 50% of those things acquired after the marriage

No it is not. That is the specific purpose of the document, to prevent this from happening. A judge however can ignore this and decide otherwise, as such always good to have documentation where the money actually came from (transfers/building material bills etc). The land office is not part of the judicial system, they just have to comply with the landownership laws.

 

[snowgard]

2 hours ago, Khun Jean said:

No it is not. That is the specific purpose of the document, to prevent this from happening. A judge however can ignore this and decide otherwise, as such always good to have documentation where the money actually came from (transfers/building material bills etc). The land office is not part of the judicial system, they just have to comply with the landownership laws.

 

Wrong!!! If you are married and the house/land was bought after the marriage you got a 50% split in money of the land/house.

The landoffice paper is just that you know that you cannot get the land.

[Khun Jean]

Believe that and you are in for a suprise!

Why do you think you have to sign that document?

It is to state that all the money to buy that property is from your wife (through a gift, or her private capital 'Sin Suan Tua' before marriage) and by doing that you specifically declare that it is not 'Sin Somros'!

If you specifically do not want to lie about that, then don't sign the document. (Make it impossible to buy the land on your wifes name).

 

Google 'Sin Somros', 'Sin Suan Tua' and get informed!

 

 

 

Edited April 21, 2017 by Khun Jean

[BEVUP]

Ok to sum it up maybe ?

Unmarried - G/F bought house & its all hers & as soon as the Land Dept found out a Falang was involved (even if the money was your wifes or G/F ) they jumped straight to that conclusion that you gifted her the money & have no recall if all goes south 

Married - Suppose to 50/50 but i bet the L/D still makes you sign 

Buying out right for children - Again who says you partner didn't win the lottery - & yet again they make the Falang sign

 

Usufrut - I wont go into that but as Khun jean said the only reason Thaidream had to sign anything at all was for their arse covering as & how many times as it been said before & I'll cap it FORIEGNERS HAVE NO SAY IN A LAND TRANSACTION

 

 

[Khun Jean]

36 minutes ago, BEVUP said:

Married - Suppose to 50/50 but i bet the L/D still makes you sign

No this is not supposed to be 50/50. Before the current law (made in the late 80's) a Thai who was married to a foreigner could not buy land at all. (This is also the reason why many Thais are still thinking that registering a marriage will not allow them to own land). As this was thought of as discrimination a change was made so that it was still possible for the married to a foreigner Thai to buy land. The change was to make the foreigner sign a document declaring that the land is under 'Sin Suan Tuan' of the Thai partner.

Thailand has an 'automatic' pre-nuptial meaning anything that was owned before marriage can not be split up upon divorce.

 

This solves the 'foreigner can not own land' law. The same applies to condominiums. Thais will have 51% and foreigners 49%. The underlying law is again that foreigners can not own the land on which the condominium is built.

 

A much more desirable change for foreigners would have been to divide the Sin Somros into 51% Thai and 49% Foreign. This would also prevent foreigners from owning the land but the 2% difference is much more palatable then when it is 100%/0% which it is now.

 

For more enjoyment read about 'Khongman'. :)

 

Still handling a divorce is not the duty of the land office, so a judge can decide differently what is 'Sin Somros' and 'Sin Suan Tuan'.

 

For some more reading: Thailand Family/Marriage laws

Edited April 21, 2017 by Khun Jean

[Arkady]

The OP is lucky because the land officials were essentially right and they didn't refuse the usufruct agreement which they have the discretion to do and have often done so on lesser grounds than that.  

 

Here's the legal basis of this.  The Land Code prohibits ownership of land by foreigners except in very specific circumstances.  Prior to 1999 the interpretation of this was that any Thai woman married to a foreigner or known to be cohabiting with one was prohibited from acquiring land.  As times changed, this was seen as sexual discrimination against Thai women because there was no similar restriction applying to Thai men with foreign wives or live-ins.  There was no legal amendment made to resolve this gender issue but the solution was a "band aid" that is still in force today in the form of a letter from the Interior Ministry in 1999 instructing them to require a declaration in the format you described in the case of any Thai male or female married or cohabiting with a foreigner.  (This may be the only element of Thai legalese that effectively recognises common law marriage.) There was no mention in the letter of having a child with a foreign but the officials are probably justified in considering this as prima facie evidence of cohabitation.

 

Legally the Land Dept is entitled to assume that land purchased by a Thai person who failed to declare he or she is married to a foreigner who jointly signed the declaration about sources of funds, is, in fact, common conjugal property and therefore jointly owned by a foreigner.  They are entitled to force the owner to transfer title to another Thai person within 180 days, or failing that, can revoke the title deed and sell the land at public auction.   There is at least one case where this was enforced by the Supreme Court.   I think they would be on difficult grounds in the Supreme Court, if it were a common-law marriage but would you really want to take it that far?  

 

If it makes the OP feel better, Land offices often cause difficulties over usufructs involving foreign usufructees and may not approve them without tea money, even if the purchase was made openly with declaration of foreign spouse. 

 

For those contemplating purchasing land in the name of a Thai spouse or partner, the declaration of source of funds is a simple formality that is actually in both of your interests.  It makes the purchase totally legal and above board but probably doesn't reduce your rights to claim half the value of the property in the event of divorce.  If you maintain all the evidence that it was in fact your money, the divorce court is more likely to consider that real world evidence as proof that it is common property to be divided in the event of divorce.  The divorce courts are quite pragmatic and will probably not consider the proforma declaration in the Land office made under duress as superior evidence over bank transfer receipts. There is a Supreme Court decision supporting division of the value of landed property in a divorce case involving a foreign husband who produced receipts, although I believe the purchase was made prior to the 1999 letter when there was, in fact, no legal way for his wife to buy the land at all.  The case did not result in a prosecution under the Land Code, as far as I am aware.