Usufruct and 30 Year Lease on Same Chanote?

[JJJIIIMMM]

If a husband had a Usufruct on the land his wife owned, but was a little bit worried that one day his wife may be tempted to have him bumped off, could he put a 30 year lease onto the land too, and if the worst was to happen, that lease could be left to someone else in his Will, therefore removing the incentive to be bumped off?

 

Is this possible at the land office, and would it help to cover a wary husband's ass?

[Khun Jean]

No.

 

[Khun Jean]

There is a way though and that is to include a 'third party' on the usufruct. This can be your brother,sister, nephew, friend, etc.

Preferably someone younger then you and of course they should have your trust. A son or daughter (maybe from previous relationship) works best.

Once a third party is included a 'wife' can not cancel a usufruct at will.

 

[juice777]

Wow thank god I never got married or bought land here

Sent from my SM-G900F using Tapatalk

[Khun Jean]

You mean you did not want to make a 400% profit in the last 10 year because you did not know how to do it and are now sour about it. :)

 

[JJJIIIMMM]

24 minutes ago, Khun Jean said:

No.

 

I have the Usufruct already Jean - why is it not possible for me to lease the land from my wife? 

 

Is leasing from a wife not allowed, or is it due to the fact that i have a usufruct in place?

[Khun Jean]

A usufruct is a 'real right', a lease also. There can be only one on a chanot. AND both to the same person will also not work. The land office will simply not do it. AND it does not give you anymore protection. Both can be canceled by the wife at any time.

To be short, you (i mean your 'friend') should have done it differently. Now it is to late.

We have all been there, let the next one be right.

The only hope is that she really thinks the usufruct is strong. Once she talks with a lawyer, it is over.

 

 

 

Edited June 5, 2017 by Khun Jean

[BEVUP]

8 hours ago, Khun Jean said:

A usufruct is a 'real right', a lease also. There can be only one on a chanot. AND both to the same person will also not work. The land office will simply not do it. AND it does not give you anymore protection. Both can be canceled by the wife at any time.

To be short, you (i mean your 'friend') should have done it differently. Now it is to late.

We have all been there, let the next one be right.

The only hope is that she really thinks the usufruct is strong. Once she talks with a lawyer, it is over.

 

 

 

Ok Khun on what grounds would the wife be able to cancel a Usufrut - Is that doable if you had Usufrut prior to marriage (I know this has been mentioned)

I know the wife can sign over the property as she still has full control to anyone that will take it on (loan shark)

But I am wandering why they are having a hard time of reselling this property if the Usufrut can be cancelled (I'm sure they would know)

 

[Khun Jean]

'reselling property with a usufruct' 

 

Land always has value, even with a usufruct on it. If desperate enough even a little money can be enough.

Nothing to worry about in that case as the usufruct will remain.

But if 'big'  money is needed, why wouldn't she just cancel it. It is within her power to do so, even if it needs a divorce to get it done quickly. Desperate time, desperate measures. Maybe stay on her good side and not always be drunk and sleep with other women. :)  (That was not personal, just a little joke!)

 

When things go bad in a marriage it often leads to a divorce, which will lead to a usufruct being canceled as all contracts between couples have to be dissolved. Sure you can renegotiate as after the divorce both persons are doing it on a personal bases.

 

A usufruct made while being married has only one value and that is that you can remain on the property after the death of the spouse.

 

In short, if you want to be secure, sort your property stuff out before you marry.

Another way is to get a usufruct from the owner (not your wife) of the land before transferring it to your wife's name. 

 

[happylarry]

A usufruct is not automatically voided if a divorce takes place.

in a divorce the wife can "ask" the court to void the usufruct but the court, as in all court cases will listen to both the wife's reasons for cancelling and also the husbands reasons for not cancelling the usufruct,and then the court will make a decision. It is not automatic as some people try to make out. 

Also this is the only way a usufruct can be cancelled without the usufrctee's permission, otherwise there would not be much protection and therefore not much point in doing it in the first place, would there.

HL

[Khun Jean]

With a divorce 'all properties must be taken out of the marriage and common property divided equally'.

The land is obviously from the wife as at the time it was bought the husband have to sign a document stating it is fully paid by his wifes personal account. The land does not become common marital property.

Upon divorce it goes back to that situation.

If you want to have some recourse you would need to pay a compensation for a usufruct. This can then be part of the negotiations. If the usufruct was 'free', then dissolving it does not give any rights for compensation.

 

If you are unsure read 'article 1469 CCCT'.

 

 

[steven100]

9 minutes ago, Khun Jean said:

With a divorce 'all properties must be taken out of the marriage and common property divided equally'.

The land is obviously from the wife as at the time it was bought the husband have to sign a document stating it is fully paid by his wifes personal account. The land does not become common marital property.

Upon divorce it goes back to that situation.

If you want to have some recourse you would need to pay a compensation for a usufruct. This can then be part of the negotiations. If the usufruct was 'free', then dissolving it does not give any rights for compensation.

 

If you are unsure read 'article 1469 CCCT'.

 

 

so is it quite difficult to cover yourself if you bought some land for your partner ....  ?    complicated ....  and what if not married, is there anything you can do with a lawyer to ensure you get something from the land value if you leave the partner ?

[Khun Jean]

Do any real estate (land especially) business before you get married. Afterwards you have to sign documents stating it is not yours (becomes her Sin Suan Tua) and not part of the common marital possesions (Sin Somros) . There is no value left for you after signing that document as it has never been part of yours to begin with. Upon marriage in Thailand there is a 'built in' pre nuptial off all the possessions of each spouse. This will stay out of what needs to be divided upon divorce. When you are married  the Thai wife was not allowed to own land as it would become shared property, resulting in the foreign husband owning 50% of the land which is not allowed. This was solved by making sure the land is always 100% of the Thai, hence the need to sign away your claims. This document should tell enough as it very explicitly says that it will be hers 100%. After signing you can not claim anything from that.

You could build a house on it and document that all money that was used was yours (from your private money that you had before you married, a prenuptial will help). Then you could get some of that back, as a house without land is not worth much.

Or have kids and put it in their name. That will give you some time. And be nice to your kids so they will be nice too if it is their turn to take care of you.

 

[happylarry]

Believe what you want to, but my wife works in the legal profession and deals mostly with marital cases, so I choose to believe her and what actually goes on in court.

The divorce courts take no notice whatsoever of the land office paper that the farang signs stating he has not paid for the property. Thay are simply not interested in that. It is something the land office incorporated and is nothing to do with any other government entity.

Any assets that are accrued during the marriage are counted and unless there are reasons to rule otherwise (or decided otherwise during the negotiation hearing)  then it is shared on a fifty fifty basis.

As I said, on here you believe who you want to believe, but I know I believe my wife because she is in court dealing with these cases every week. Also you can quote all the rule books you like but as we all know from dealing with immigration these are not followed or are interpreted differently.

HL

[JJJIIIMMM]

Thanks for the information Guys.  As usual the value of an usufruct divides opinions.

 

HappyLarry - do you agree with Khun Jean that it is not possible to lease the land from your wife, whilst there is a usufruct in place?  It would be a good way to offer an extra layer of protection if it were allowed.......

[Khun Jean]

46 minutes ago, happylarry said:

Also you can quote all the rule books you like but as we all know from dealing with immigration these are not followed or are interpreted differently.

So now we are to believe that a judge will not follow 'quotes' from a 'rule book'.

In other words he acts outside of the law. What happens when you have a judge that does follow the law?

I'll take a countries law book over ANY comment and experience shared on internet.

Comparing with immigration is just silly.

 

[happylarry]

40 minutes ago, Khun Jean said:

So now we are to believe that a judge will not follow 'quotes' from a 'rule book'.

In other words he acts outside of the law. What happens when you have a judge that does follow the law?

I'll take a countries law book over ANY comment and experience shared on internet.

Comparing with immigration is just silly.

 

I think you will find that when it comes to dealing with real people then the "rule book" is normally as a guideline, not as hard and fast rules that have to be adhered to regardless of circumstances, the divorce courts are there to make decisions based on what is deemed best for each and both parties depending on the  circumstances and when children are involved then they become the priority in the case too,  not your rule book.

So do I take it that you are just quoting from your rule books then and not quoting from any real experience. Never mind mate, I am finished with this thread....lol

as I said before people can believe what they want to regardless....aye.

Have a good day.

HL

[Khun Jean]

I find it interesting you use the words 'your rule book' as if i am the one who wrote it. You could have said that judges not follow the countries laws because they rather decide something that is fair for both parties. S basically anyone could be a judge then, why even study the law as it is all so strict. Any court/judge has one obligation and that is to follow the law, not some 'feel good' emotion that controls their action. If they did that they should be removed from their function. They might interpret it differently but that can be challenged. If the interpretation is shared with other judges it could be used to change the law, but until that is done, the law remains the law.

 

Fair decisions, bet interest for all?

Is it in the best interest for all parties to sell the land and divide the money. or the usufruct stays in place so the foreigner can continue to live there but the Thai person has to again leave, maybe getting a compensation from the foreigner. The other way around is hardly common.

There are not many options available. Selling and splitting seems the only one available in most cases. Is that what makes you feel secure, paying for everything ending up with half and loosing your home?

And does all of that not depend on which judge you have and  even in which district. Or are you talking about experiences around the whole country with tens if not hundreds of cases decided by judges who all base their work on the written law but choose to ignore it? Do they have so much compassion for foreigners that they even ignore signed documents and make decisions on what they feel is fair?

I find that hard to believe, but if you say so, there must be lots of cases that can be studied. I am curious if those are documented because then it would carry some real value. Like a precedent, which btw is not used in Thailand.

 

I am fortunate enough to not have any bad experiences (land, houses, condos), i believe i had a part in that by making good (and a bit of luck) decisions. Friends and family however were not so lucky, does that count as experience or does it only count if your wife is a 'worker in the legal profession'? Is that as a lawyer, a judge, an assistant to one of those or the one that cleans the office and brings around coffee? I hope you can see that 'working in the legal profession' can be very non descriptive.

 

Another part of my 'experience' is talking to lots of lawyers (at least 20 over the years) and they all can not give a concise answer and even contradict each other. Yes, even including the 'better' ones. As long as they are not fully accountable they do not care what documents you want, they will make it for you for a price.

 

In the meantime i will await posts made by foreigners who went through all of the divorce proceedings and came out with a 'fair' deal. If there are any i would like to read them.

 

 

 

 

Edited June 6, 2017 by Khun Jean

[happylarry]

I said I wasn't going to post again but you have asked the question so I will answer it.

My wife is a freelance interpreter and translator and also has worked as a paralegal with a very busy lawyer for the last four years. They do go all over the country as it happens north, south, isaan, Bangkok wherever the work requires.

She is also halfway through a law degree with the intention of becoming a lawyer herself in the near future. So no she is not the "cleaner", and I do wonder why you have to resort to name calling.....is it because you are starting to realize I am right.....lol

Surely you must agree that there has to be give and take in the justice system, and I'm not talking about tea money....lol.

If the courts were not there to hear arguments and make decisions accordingly in what they think is right then there would be no need for courts to sit in the first place. We could all live somewhere like North Korea and have young Kim just point his finger and your in prison for life.

Of course there are straightforward laws that have no argument like speeding, theft, murder etc. but we are talking about family law here and divorce courts are completely different from criminal courts in the way they work.

If you do want to read a post by a very satisfied farang then go to the marriage and divorce page and look at a thread entitled "Divorce Lawyer Review". I have just made a comment on it to bring it to the top of the pile again so it easy for you to find.....lol

HL

[Khun Jean]

How do you go from stating (in another topic)

Quote

 

...

By the way the usufruct lasts for the agreed period except in the case of a divorce (and if the usufruct has been granted by a wife to a husband), then the wife can ask the divorce court to cancel the usufruct.

...
 

 

to the above story in your posts on this topic?

Do you have new information since 29 april 2017 that makes that statement invalid?

 

And just to keep on the topic that the OP posted, how do you stay on the land when a court 'fairly' decides to split the proceedings from a sale which in most cases is fully paid by the husband(Land & house). Wasn't the whole point of a usufruct to get 100% control of the land. Otherwise why bother with it (ok it is good when the wife dies first).

So the only thing that can keep a usufruct in place is that the wife does not ask the court to cancel it. Not much to hope for.

 

That you have so much 'lol' is just weird. Or are you feeling young at heart (about 10) to do this after each sentence?

 

 

Seems like your wife is doing a good job compared with many others, which is commendable. probably also influenced by having a foreign husband, nothing helps better to get a more balanced view. Lots of Thai people do not have that and will treat a foreigner unfairly, just because the fact he is a foreigner. So one of the things people have to do to get a 'fair' divorce is to contact your wife. The odds for getting a good representation and good outcome seems to get smaller and smaller for people who never read Thai Visa or know your wife.

 

 

Edited June 6, 2017 by Khun Jean

[happylarry]

6 minutes ago, Khun Jean said:

How do you go from stating (in another topic)

 

 

to the above story in your posts on this topic?

Do you have new information since 29 april 2017 that makes that statement invalid?

 

And just to keep on the topic that the OP posted, how do you stay on the land when a court 'fairly' decides to split the proceedings from a sale which in most cases is fully paid by the husband(Land & house). Wasn't the whole point of a usufruct to get 100% control of the land. Otherwise why bother with it (ok it is good when the wife dies first).

 

That you have so much 'lol' is just weird. Or are you feeling young at heart (about 10) to do this after each sentence?

 

 

 

 

Wow, more name calling....

what do you see that is different in my previous statement.

The wife can ask the court to cancel the usufruct....can ask!!!

it doesn't say that the court will grant it, does it, as I said before and say it again the husband can put forth his reasons for not having it cancelled and the court will make its decision. That's what the judge is there for.

It also does not matter who fully paid for the property because if it is within the marriage then it is considered marital assets and therefore split between the two, unless there are other extenuating circumstances.

Lastly the usufruct does not give you 100% control over the land, it gives you the right to stay on the land while it's in force. For instance the land can still be sold but the new owner has to adhere to the usufruct still. However if the court has deemed to sell the land in order to split the assets then obviously the court will also be voiding the usufruct prior to selling.

Tell you what Khun Jean let's agree to disagree shall we and get on with life.

byebye

HL

[Khun Jean]

Which brings us back to the point that a lease or usufruct is not secure when done when you are married.

You are depended on your wife asking, the courts decision etc..

 

If you want it 100% sure, choose either option.

1) Do it before you marry or before you transfer the land to your wifes name.

2) If you really have to do it when you are married then INCLUDE A THIRD PARTY.

 

Why keep things vague. I know the answer to that, you would need a lawyer.

 

I like to keep things simple and independent of other peoples opinions and their idea of being 'fair'.

 

If you are already married then you only need a usufruct or lease to protect you in case your wife dies. There is no other value, as is said many times in many posts. You open yourself up to 'fair' decisions by a judge or other situation that will result in you loosing at least 50% and probably more.

 

BTW. Is this post another excuse to bump your wife's review post? What was it.... three times a post with the word 'Up'. Maybe consider advertising.

 

 

And if you quote me, don't delete part of it!

 

 

Quote

How do you go from stating (in another topic)

---Quote---

By the way the usufruct lasts for the agreed period except in the case of a divorce (and if the usufruct has been granted by a wife to a husband), then the wife can ask the divorce court to cancel the usufruct.

----

to the above story in your posts on this topic?

Do you have new information since 29 april 2017 that makes that statement invalid?

 

Edited June 6, 2017 by Khun Jean

[happylarry]

2 minutes ago, Khun Jean said:

Which brings us back to the point that a lease or usufruct is not secure when done when you are married.

You are depended on your wife asking, the courts decision etc..

 

If you want it 100% sure, choose either option.

1) Do it before you marry or before you transfer the land to your wifes name.

2) If you really have to do it when you are married then INCLUDE A THIRD PARTY.

 

Why keep things vague. I know the answer to that, you would need a lawyer.

 

I like to keep things simple and independent of other peoples opinions and their idea of being 'fair'.

 

If you are already married then you only need a usufruct or lease to protect you in case your wife dies. There is no other value, as is said many times in many posts. You open yourself up to 'fair' decisions by a judge or other situation that will result in you loosing at least 50% and probably more.

 

BTW. Is this post another excuse to bump your wife's review post? What was it.... three times a post with the word 'Up'. Maybe consider advertising.

 

Yes exactly, and I have had many enquiries resulting from that post as it happens.

Why not, what better advertising is there than recommendations. And no I did not post on this thread in order to push that, if you can remember that far back you actually asked to see posts from people who were satisfied or something like that, (I can't be bothered to look back).

Anyway I am pleased to say that we agree on something at last, that is the sole reason I have my usufruct, is in the case of my wife predeceasing me. Our property is also willed to me as well. 

HL

[BEVUP]

Well im sure i still had to sign the simros bla bla paper before i was married 

I love how people say they have 100% control of property with a Usufrut - complete BS

Good to see people have the inheritence in the will  - But Thai law already recognises that & that the Falang must sell property in a year

 

[JJJIIIMMM]

Ok, so it seems a lease cannot be added to the chanote, if there is a usufruct in place, as khun Jean has stated early on in the thread

So, if the husband (me - the OP) was to divorce, pay off his wife and move ownership of the land and house to a company, would the usufruct be allowed to remain? 

 

There is no reason that the wife would need to bother having it cancelled, as the land is no longer in her name, so would the usufruct remain, until the husband offered to cancel it? 

[Khun Jean]

Your wife would need to make a new usufruct after the divorce, or not cancel it at all. It would then remain.

Starting a company for the sake of securing the land and house is even more difficult and is absolutely not advisable.

If the company already exists then it is different. If you are the director of it then you get into a grey area because then the company will be suspect to use nominees.

If you 'pay off' and she is willing to move ownership to a company then she is probably MORE willing to keep it in her name and let the usufruct remain for the same amount of 'pay off'.

 

 

[JJJIIIMMM]

42 minutes ago, Khun Jean said:

Your wife would need to make a new usufruct after the divorce, or not cancel it at all. It would then remain.

Starting a company for the sake of securing the land and house is even more difficult and is absolutely not advisable.

If the company already exists then it is different. If you are the director of it then you get into a grey area because then the company will be suspect to use nominees.

If you 'pay off' and she is willing to move ownership to a company then she is probably MORE willing to keep it in her name and let the usufruct remain for the same amount of 'pay off'.

 

 

Thanks Khun Jean (again).....  An accountant here is hua hin assures us that setting up a company will be fine.  They have been in the business for more than 10 years here, and i have owned a company before through these guys, and lived in the house and later sold it, all with no problems in the past.  So fingers crossed it will be fine.

 

We were actually in the land office today, finding out how much the transfer costs were, to transfer the land and house from my wife to the new company, and the land office lady was saying that i was daft to remove the usufruct, and i should leave the land in my wife's name, as you do above.......

 

the only thing with this is, if the land is in my ex wife's name, then i will be always looking over my shoulder, as if i was to get hit by a bus etc, the land and house would return to my wife.

 

I think company ownership is the slightly less risky method.  At least the house would not automatically return to my ex mrs, if something were to happen to me

 

[Khun Jean]

Yes accountants always assure as real estate brokers will always say that now is the best time to buy.

Self interest is always the constant factor.

 

As they say, results in the past will not be guaranteed  in the future.

A lot has changed with company ownership of land and houses. A lot more scrutiny is done now as 2-3 years ago.

If you feel fine owning 49% of a business and use nominees (which is illegal) for the other 51% then at least you know going in what the risks are.

If the company is only owning land and house and the business is to rent that out then it is now even advised by lawyers to settle for 39% as that will not trigger any alarm bells with the authorities.

The number of shareholders have been changed to only three so it should be a lot easier now, before it was seven. If you can get two Thai people that are trustworthy then that would be better then using the nominees provided by a lawyer/accountant firm. The risk that a lawyer/accountant firm is checked and found to be using nominees many times will result in more scrutiny on all the companies they helped to incorporate.

Hua-Hin, Pattaya, Phuket are the hotspots and companies are being investigated.

 

I don't know your wife and family but is the risk really bigger that you are getting killed or is the risk bigger that you get caught using a company with nominees?

 

There is also the option that the land is sold to another Thai individual who gives you a new usufruct. My wife has done that for a friend of ours and it worked out fine. At this very moment she will probably make another usufruct for a foreigner couple as she is in the process of selling some land. If you want i can post here how that went. It is planned on the 3rd of july.

 

[JJJIIIMMM]

16 hours ago, Khun Jean said:

Yes accountants always assure as real estate brokers will always say that now is the best time to buy.

Self interest is always the constant factor.

 

As they say, results in the past will not be guaranteed  in the future.

A lot has changed with company ownership of land and houses. A lot more scrutiny is done now as 2-3 years ago.

If you feel fine owning 49% of a business and use nominees (which is illegal) for the other 51% then at least you know going in what the risks are.

If the company is only owning land and house and the business is to rent that out then it is now even advised by lawyers to settle for 39% as that will not trigger any alarm bells with the authorities.

The number of shareholders have been changed to only three so it should be a lot easier now, before it was seven. If you can get two Thai people that are trustworthy then that would be better then using the nominees provided by a lawyer/accountant firm. The risk that a lawyer/accountant firm is checked and found to be using nominees many times will result in more scrutiny on all the companies they helped to incorporate.

Hua-Hin, Pattaya, Phuket are the hotspots and companies are being investigated.

 

I don't know your wife and family but is the risk really bigger that you are getting killed or is the risk bigger that you get caught using a company with nominees?

 

There is also the option that the land is sold to another Thai individual who gives you a new usufruct. My wife has done that for a friend of ours and it worked out fine. At this very moment she will probably make another usufruct for a foreigner couple as she is in the process of selling some land. If you want i can post here how that went. It is planned on the 3rd of july.

 

 

Yes, it is quite obvious the accountant would encourage the formation of a company, but my lawyer also said it was the best way for me, and she is not due to get any more work from the company formation if i go that route.

 

I had never heard of the taking on only 39% share of the company.  Seems like a really good idea and way of keeping off the radar.  The only thing with that though, is i was planning on having three other shareholders, plus myself, so the other three would share 61% of the company, so possibly two of them getting together may equal a greater share and end up in me getting the boot as director......  Although my accountant said he had never heard of this in over ten years of setting up companies for people.

 

The accountancy firm has already told me that they cannot provide the shareholders, so they are saying exactly what you are saying there Kuhn Jean.

 

Selling the land to another thai, who then gives me usufruct (or even leave the one in place that exists already?) is a good idea, but again that will leave my paranoid brain thinking about the worth more dead than alive scenario

 

I am between a rock and a hard place for sure!! I wish i could just stay married, but.................................

[Khun Jean]

The 39% is to escape scrutiny when land title is transferred to the company.

After the transfer you can then increase your share to 49%.

It is just a little extra step that makes this more smooth.

 

I am not in the same situation but if i was, i would not use the 'company' loophole. I would just stick to a lease/usufruct.

Having 49% in a company probably also makes you worth more dead then alive.