Thai daughter giving me 30 yr house lease for free.

[khunPer]

11 hours ago, DLang said:

Is there a Thai name for this? 

 

Thanks. 

Habitation Property Rights ...->

[simoh1490]

An usufruct can be for life or for a set period, e.g. 30 years.

 

A lease can be sold or sub leased, an usufruct cannot be sold although an usufructee can sub lease to a third party which remains valid until the usufruct expires or the usufructee dies.

[Khun Jean]

Be aware that leases can normally not be sold or sub leased, this has to be an extra clause added to a standard contract.

Also be aware that as a foreigner you can not rent out land as that would mean you are managing the land and that is not allowed under the Thailand Land Code Act. You will be unable to register a sub lease at the land office for this reason. You could lease out for maximum three years as that does not require you to register it, you would still be in violation of the Land Code Act, but as it is not registered no official will know.

If you rented it out and troubles arise this could be a problem.

[simoh1490]

There is an argument that a lease or usufruct by a foreigner at zero cost can be viewed as proxy ownership which is off course illegal. I know that the law on usufruct at least has been challenged in the courts but upheld and that payments every month was one of the reasons for that, even if they are only nominal or peppercorn. I do not know for certain if the same exists for leases at zero cost.

[BEVUP]

2 hours ago, simoh1490 said:

There is an argument that a lease or usufruct by a foreigner at zero cost can be viewed as proxy ownership which is off course illegal. I know that the law on usufruct at least has been challenged in the courts but upheld and that payments every month was one of the reasons for that, even if they are only nominal or peppercorn. I do not know for certain if the same exists for leases at zero cost.

You do not have to pay anything on a usufrut to the owner of the land, from your comment i would say that you are talking of a Lease & I would suppose the Thai Gov would be suspicious if the owner was not to receive an income from it

 

[simoh1490]

1 hour ago, BEVUP said:

You do not have to pay anything on a usufrut to the owner of the land, from your comment i would say that you are talking of a Lease & I would suppose the Thai Gov would be suspicious if the owner was not to receive an income from it

 

This subject has been much discussed on TVF over the years, the definitive view, I believe, on the legality of usufructs was given less than a year ago by someone very knowledgable in Thai law. What was said was that n usufruct granted by a Thai spouse is unsafe since it could be terminated at divorce, a view that came as a surprise to many posters. The other aspect discussed was whether an usufruct that was free could be viewed as proxy ownership and the conclusion was that it could and that it was safer to pay something for it in order to head of that challenge in the courts.

[Happy Grumpy]

14 minutes ago, simoh1490 said:

I believe, on the legality of usufructs was given less than a year ago by someone very knowledgable in Thai law. What was said was that n usufruct granted by a Thai spouse is unsafe since it could be terminated at divorce, a view that came as a surprise to many posters.

 

More reason for having the property in one's child's name, and not the Thai wife/husband, if one has a child here.

[simoh1490]

Just now, Happy Grumpy said:

 

More reason for having the property in one's child's name, and not the Thai wife/husband, if one has a child here.

Yes I agree, but then there's still the potential issue of proxy ownership to be dealt with. FWIW I have an usufruct for life, granted to me by my unmarried female partner. On the advice of our lawyer I make token monthly payments to my partner. These are not payments that I make specially for the usufruct although they can certainly be viewed as such, they are merely monthly payments for support of our house and living expenses, payments that are under 10k baht per month and the bank audit trail for them is in place. A second string to all of this is that I have made a Thai will where I leave all my possessions and assets in Thailand, to my partner, a further step to help prove I'm not trying to use my partner as a proxy.

[Khun Jean]

I got a lot of BS over the fact that i posted years ago that a usufruct (same for a lease) is no guarantee when issued by your spouse, at the time even by 'reputable' lawyers (Even a sponsor on this site at that time). Up to the point where is was even threatened! Which is a shame as they should have known better. I guess they like there clients to be uninformed. Now years later it is much more clear as more and more people are diving into the specifics.

If you are married a usufruct can be made safe by including a 'third party'. Ideally it is a family member on your side. A younger child would be perfect. A brother, sister etc works just as fine, a child has the advantage of being younger and the child will probably outlive you. Once a third party is included on the usufruct with your spouse it can not be terminated as it will effect a third party.

 

About monthly/yearly payments for a usufruct. It is not needed by law but it is nevertheless a good strategy. It will confirm the existence of the usufruct and the fact that money is received by the owner is a sign that they are fully in agreement with it. This will work in your advantage when troubles arise. A contract with accepted payments is very very strong in your favor.

 

[SoFarAndNear]

Just want tell the OP that the usufruct is an excellent Idea and can be for a lifetime not just 30 years. I did it a few days ago and it is really soothing to see your own name on the Chanote of the land. I dont know where you are but expect that the officers try to demand bribes. So come well prepared and inform yourself good. I bought this usufruct agreement from Isaan Lawyers: http://www.isaanlawyers.com/usufruct-agreement-thailand/  They also replied a few e-mails for free. The officers in the land office are not happy about usufructs because they know its some kind of legal loophole to give a foreigner control a land. When I was there the officer tried to advise against doing it for lifetime. She didnt know I understand a little thai and was pretty shocked when I told her that I know what she is saying :D

[Destiny1990]

2 hours ago, SoFarAndNear said:

Just want tell the OP that the usufruct is an excellent Idea and can be for a lifetime not just 30 years. I did it a few days ago and it is really soothing to see your own name on the Chanote of the land. I dont know where you are but expect that the officers try to demand bribes. So come well prepared and inform yourself good. I bought this usufruct agreement from Isaan Lawyers: http://www.isaanlawyers.com/usufruct-agreement-thailand/  They also replied a few e-mails for free. The officers in the land office are not happy about usufructs because they know its some kind of legal loophole to give a foreigner control a land. When I was there the officer tried to advise against doing it for lifetime. She didnt know I understand a little thai and was pretty shocked when I told her that I know what she is saying :D

So the Thai landowner where u house sits on gave u the usefruct?

[SoFarAndNear]

On 4/23/2017 at 11:38 AM, Destiny1990 said:

So the Thai landowner where u house sits on gave u the usefruct?

Yes. 

[Destiny1990]

56 minutes ago, SoFarAndNear said:

Yes. 

But u can't transfer or sell the usefruct right?

did u build a house than got a usefruct for the land only?what happens if u want to move?to another town?

[SoFarAndNear]

6 hours ago, Destiny1990 said:

But u can't transfer or sell the usefruct right?

did u build a house than got a usefruct for the land only?what happens if u want to move?to another town?

No I can't sell but The usufruct can be transferred to another person by me.

[simoh1490]

27 minutes ago, SoFarAndNear said:

No I can't sell but The usufruct can be transferred to another person by me.

Just for clarity - That transfer dies when you do or when the usufruct term expires.

[happy Joe]

I recently went to the Land Office of my small town near Nakhon Sawan to seek advice for the house built on my wife's land with a litle of my money and the physical help of all family.

 

The answer was clear: Usufruct.

 

According to them, a lease without rent is legally wobbly and can be challenged. Same for the constitution of a fictitious company owner of the house. On the contrary, the usufruct is a real guarantee of use and foreigner protection, in my case for the rest of my days.

 

The office left the choice to contact a lawyer drafting the act or delegate them against 5000 baht. As I chose the 2nd solution they wrote it immediately (in less than one hour) and handed me the official document specifying my name and my usufructuary status. Cost 80 baht approximately.

 

I do not know if these 5000 b actually served to pay a law clerk or other...  but this procedure carried out quickly well and was worth this small expense for my peace of mind.

[Apiwan2]

I presume the child is 20 or over and the legal owner.
 
If the child is still a child the property can be in their name, but it will need to have a Thai 'guardian' usually the Thai parent, who will need to go to court for the property to be used for anything - collateral for a loan etc etc or to be sold/transferred.
 
I would guess that that would also be needed for a usufruct to be given on the property. 
 
That until the child is 20 and the full owner without guardianship you cannot get a usufruct, or any other sort of legal right of habitation for the property.

what if there's no Thai parent only a fallang ?

what would happen there ?,

[Destiny1990]

5 hours ago, SoFarAndNear said:

No I can't sell but The usufruct can be transferred to another person by me.

But that does sounds like selling to me if u can transfer the usefruct.

[simoh1490]

1 hour ago, Destiny1990 said:

But that does sounds like selling to me if u can transfer the usefruct.

It could be viewed that way I suppose, but it would be a very poor deal for the buyer since the remaining duration of the usufuct depends on the life of the seller, not the buyer.

[Destiny1990]

29 minutes ago, simoh1490 said:

It could be viewed that way I suppose, but it would be a very poor deal for the buyer since the remaining duration of the usufuct depends on the life of the seller, not the buyer.

Gosh again a complicated issue 99 years land leases be much more straightforward  to say the least.

[Khun Jean]

It is much simpler then that. You can not transfer the usufruct. period.

Anyone that tells you different has no clue or does it on purpose. Take your pick.

The only thing you can do is rent it out for periods shorter then 3 years. Longer periods have to be registered at the land office and that is not allowed to be done by a foreigner.

Laws are so simple, why is everything always made more difficult then it is. (I know, i know, money) combined with the fact that many foreigners want to own whatever the facts are)

 

And if it is really what you believe, why not try to do it now, just as a test. See how far you get.

[simoh1490]

49 minutes ago, Khun Jean said:

It is much simpler then that. You can not transfer the usufruct. period.

Anyone that tells you different has no clue or does it on purpose. Take your pick.

The only thing you can do is rent it out for periods shorter then 3 years. Longer periods have to be registered at the land office and that is not allowed to be done by a foreigner.

Laws are so simple, why is everything always made more difficult then it is. (I know, i know, money) combined with the fact that many foreigners want to own whatever the facts are)

 

And if it is really what you believe, why not try to do it now, just as a test. See how far you get.

Yes of course you are correct, it's a superficies that can be inherited.

[Happy Grumpy]

8 hours ago, Apiwan2 said:

what if there's no Thai parent only a fallang ?

what would happen there ?,

 

The Thai guardian doesn't need to be a parent. Whoever is the child's custodian would do. 

 

The house is in the name of the child regardless, the guardian needs to go before a judge to use the property as collateral or sell it, and needs to show that it's in the child's best interest to succeed.

[Apiwan2]

 
The Thai guardian doesn't need to be a parent. Whoever is the child's custodian would do. 
 
The house is in the name of the child regardless, the guardian needs to go before a judge to use the property as collateral or sell it, and needs to show that it's in the child's best interest to succeed.

child's name regardless. sounds good.

however if it's just me looking after my 2 kids here could I a fallang be the named person?

I doubt it,

which means trusting someone (Thai) I know to be the guardian.

[Happy Grumpy]

9 hours ago, Apiwan2 said:

however if it's just me looking after my 2 kids here could I a fallang be the named person?

I doubt it,

which means trusting someone (Thai) I know to be the guardian.

It has to be a Thai over the age of 20 (or 18?)

 

 

 

[Apiwan2]

It has to be a Thai over the age of 20 (or 18?)
 
 
 

So that must mean the kids would have to go to court.

Still not 100% safe .

[Happy Grumpy]

10 hours ago, Apiwan2 said:

So that must mean the kids would have to go to court.

Still not 100% safe .

Not sure what you mean.

 

The property is 100% owned by the child and no one else. Though you can have a Usufruct for life on the property.

 

It cannot be sold or used as collateral until they come of age and doesn't have a legal guardian any more.

 

Until then, there is a Thai adult guardian for the property, the adult needs to go to court and prove to the judge that it is in the child's best interest for the property to be sold from beneath them or used as collateral. I've never heard of a judge agreeing to this. Doubly no when there is a life long usufruct on the property. 

 

If you're looking to buy a property (not a condo) and leave it for your child, this is about the best way. Nothing is 100% safe in Thailand. If you're not comfortable with that, leave your money else where. 

Edited April 27, 2017 by Happy Grumpy

[Apiwan2]

Not sure what you mean.
 
The property is 100% owned by the child and no one else. Though you can have a Usufruct for life on the property.
 
It cannot be sold or used as collateral until they come of age and doesn't have a legal guardian any more.
 
Until then, there is a Thai adult guardian for the property, the adult needs to go to court and prove to the judge that it is in the child's best interest for the property to be sold from beneath them or used as collateral. I've never heard of a judge agreeing to this. Doubly no when there is a life long usufruct on the property. 
 
If you're looking to buy a property (not a condo) and leave it for your child, this is about the best way. Nothing is 100% safe in Thailand. If you're not comfortable with that, leave your money else where. 

.

thanks mate, a lot clearer now

[DLang]

If highly paranoid and want to be ultra safe. Buy a condo in 100% your own name, make a will leaving it to your child, then rent it out and use the rental income to rent a house.

 

You and the child will have the safety net of a property here that is 100% owned by yourself, and the rental income will cover that of a house, there or about.

 

Otherwise a lifelong usufruct for you on a house that they own is about as good as it gets. 

 

 

[A1Str8]

Why free obviously? I would charge you 10k a day!