124 replies to this topic
Posted 2008-02-27 13:43:55
 Khun Jean, on 2008-02-25 07:43:11, said:
malcolminthemiddle, on 2008-02-25 14:38:14, said: We just bought some land in my wifes name.
I asked for a usufruct to be registered in my name at the time of transfer.
The officer refused saying it wasn't necessary because we were married.
I knew he was wrong and it was my right, but I didn't want to make a fuss at that time, so no usufruct was registered.
I may try again at a later date.
That is why a lawyer is usefull. To cut the BS and have (show) some authority.
And why not make a fuss? What about no deal when no usufruct. Even the seller will support you.
I believe there were two reasons why the officer refused to register the usufruct.
1. If we were to divorce, as the legally registered spouse I would be entitled to 50% of the land value.
2. If my wife were to die, then I would automatically inherit the land with 12 months to sell or reregister in a Thai name.
I didn't make a fuss because the land is prime real estate which we bought at a bargain basement price and I was happy to seal the deal without the usufruct. Also, the money originated from the sin sod from our marriage some years ago which had been invested in land that we had sold and were now reinvesting, again in land.
Posted 2008-02-27 14:11:18
Someone wrote that there is a problem about mortgage to your wife while married. You are perfectly right.
A person asked me the price in pm. We do it for between 12K and 20K, depending on the location. Including drafting of the contract, checking title deeds and zoning law, register the contract, explanation of the law, etc.
jazzbo: Your example refers to SHELL COMPANIES to own land and NOT only usufruct. It's a combination in your legal opinion. Of course, that is illegal. If your girlfriend is the owner, of course she can gives a usufruct to whoever she wants. I believe you don't fully understand differences between a lease, a usufruct, a shell company, and combinaison of them.
mdpkorat: Simple answer: There is no age in the law. But it is more complicated and it's the discretion of the land officers to accept or not a transfer on a child's name.
You are talking about what is called "Capacity" in Law (section 19 to 36 in CCCT). Under Civil law, there is more or less an age when people are known to be able to distinguish what is good or bad, around 6 or 7 years. This is where they can normally become liable. There is a difference between civil liability and criminal liability.
For civil acts, you will verify on the circonstances of each person. Even an adult, in some circumstances, will need some authorisations to make a juridistic act as they might not be fully capable (ex.: mental disorders) You verify if this person can speak, answer, and the land officers will probably check if the child can read or write. If not, signatures can be written with a fingerprint! (section 9 of CCCT)
The problem with children is that their asset is 'checked' and parents can't do anything they want with the property of the children. There are limitations in the law. Also, juridistic acts by children needs the approbation of the parents (section 21).
It's easier if children receive a gift...and not if they buy! (easier to make the officers say YES).
If they buy, questions like where the money comes from will be asked...How does a child have money and they might require the Court to authorize a purchase because it is normally for a large amount of money.
Again, it's not the same in each land department and this is why we always double check with local officers BEFORE doing a transaction when it involves complicated things. (Even if we have a copy of the manual they are using in land departments!).
Malcolm in the middle:
1- No.
2- Not necessarily. If your wife has a will and gives me the land!!! You are presuming that she gives it to you!
Main reason why they refused to register usufruct: They don't know. We did the first one in Kuchinarai, in Mukdahan, in Korat, in Tat Toom, in Khon Kaen, etc. All officers are smiling when they see that for the first time... When I feel there will be a problem, I go with our Thai lawyers. We need to bring examples, show them how to do it, they look in their manuals, they don't want to do a mistake, they invent they have to call in Bangkok, try to delay, etc. They just don't like to do something that they don't understand (1), don't collect taxes (2), and gives rights to a foreigner (3). These are my 3 first explanations based on my experience. I was in Tat toom (near surin) yesterday and we almost got postpone because of (1) but they finally register it after 4 hours of waiting. So, imagine if we wait few hours...what it can be in foreigners go there alone to do it for the first time...
Posted 2008-02-27 15:17:49
The opinion I quoted refers to a "...Thai national as the nominee land owner acting on behalf of the foreigner, combined with a 30-year 'renewable' lease (or usufruct for the life of) in the foreigner's name." It says that some dubious lawyers promote this approach as an alternative to a Shell company. It is not MY legal opinion (as I am not an attorney) but from another lawyer's website.
They are clearly addressing the instance of a foreigner providing the finances for a Thai national to purchase a property and then issue a usufruct in favor of the foreigner. They cite the sections of the Land Code (not the Civil Code) that would be violated and say that BOTH parties would be at risk. The fact that a land office will register this arrangement does not mean that there are not liabilities down the road. If your girl friend, as you say, wants to issue to you a usufruct she can do so as long as she did not purchase the property as your nominee and with your money
...but that's OK. I have said my piece. You just go write ahead and write as many of these as you can while you can.
Posted 2008-02-27 17:25:43
Jazzbo: The website you cite is SFS. And I believe I know who wrote that and I have great respect for him. Remember that You can find EVERYTHING on Internet. An opinion is normally signed, by a lawyer, solicitor, etc. I would love to see this person of SFS signing the texts. I am talking about the foreign attorney over there...
Anyway, I won't discuss about another website but you are in their section "USING Thai nominee as a Thai owner".
Respectfully, we are not using Thai nominees as Thai owner. The spouse or girlfriend/boyfriend is the OWNER, the full owner. And she/he grants the right of usufruct for free or for an amount of money. Read my #5 --> THE OWNER CAN SELL OR BORROW MONEY but difficult. I didn't say the foreigner is the owner. The owner is the Thai person and we don't use nominees where I work. Usufructs are FULLY LEGAL. You can ask SFS or any website 
Posted 2008-02-27 18:06:42
Section 96 Land Code; 'When it appears that any person (including a juristic person) has acquired land as the owner in place of an alien or juristic person under the provisions of Section 97 and 98, the Director-General shall have the authority to dispose of such land and the provisions of Section 94 shall apply mutatis mutandis'.
As the said in Watergate, FOLLOW THE MONEY. If the money comes from the foreigner to begin with, the then Thai national is by definition the nominee... I guess you will say that it IS her money. It was a gift.
Posted 2008-02-27 20:33:56
A friend of mine bought 160 Talang Wah of land. He is legally married to a Thai. At the Land Office they provided the form and gave him 30 years right of use, habitation, etc. It only cost 100 baht if I remember correctly. He is also listed as owner of the house. His wife of course is shown as owner of the land.
Simple.
Posted 2008-02-28 16:39:13
LoveDaBlues, on 2008-02-27 20:33:56, said: A friend of mine bought 160 Talang Wah of land. He is legally married to a Thai. At the Land Office they provided the form and gave him 30 years right of use, habitation, etc. It only cost 100 baht if I remember correctly. He is also listed as owner of the house. His wife of course is shown as owner of the land.
Simple.
For the same amount he could have got it for live, but maybe that is irrelevant because i don't know his age.
Yes simple, but still it will not protect your friend when things go wrong in the relationship. Read the thread again why.
50% owner of the house and that is it. Without cooperation that 50% can be very, even impossible to get.
A mortgage on the house can minimize that.
Posted 2008-02-28 20:02:36
Khun Jean, on 2008-02-28 16:39:13, said: LoveDaBlues, on 2008-02-27 20:33:56, said: A friend of mine bought 160 Talang Wah of land. He is legally married to a Thai. At the Land Office they provided the form and gave him 30 years right of use, habitation, etc. It only cost 100 baht if I remember correctly. He is also listed as owner of the house. His wife of course is shown as owner of the land.
Simple.
For the same amount he could have got it for live, but maybe that is irrelevant because i don't know his age.
Yes simple, but still it will not protect your friend when things go wrong in the relationship. Read the thread again why.
50% owner of the house and that is it. Without cooperation that 50% can be very, even impossible to get.
A mortgage on the house can minimize that.
He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land. He owns the house because he paid for it. His wife could sell the land but who would buy with him living there? I'm too lazy to go back through all these posts. 
Posted 2008-02-28 20:39:36
LoveDaBlues, on 2008-02-28 20:02:36, said: He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts.
It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.
Edited by Khun Jean, 2008-02-28 20:41:50.
Posted 2008-02-28 21:05:26
Khun Jean, on 2008-02-28 20:39:36, said: LoveDaBlues, on 2008-02-28 20:02:36, said: He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts.
It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.
A couple of questions; not trying to be difficult I'm just confused.
Okay let's assume she has a legal right to revoke the usufruct. How can she sell a house that she only owns half of?
Also, I'm confused on the mortgage issue mentioned in a prior post. Could you explain this in detail as I'm a little dim-witted at times.
BTW, I'm 51, married legally to a Thai, have a 3 month old girl, and planning to buy a piece of land in the near future and building a house on same. (I/we already have 5.5 rai but want to buy something closer in to town). Thanks for any help.
One more question.....can my child who was born in Thailand legally own land here?
Posted 2008-02-28 21:37:17
[quote name='LoveDaBlues' post='1844922' date='2008-02-28 21:05:26'][quote name='Khun Jean' post='1844867' date='2008-02-28 20:39:36'][quote name='LoveDaBlues' post='1844813' date='2008-02-28 20:02:36']He's 63 so the 30 years is enough. I don't see where he's not protected. If the relationship goes bad he has the right to live in the house and use the land (When she agrees and not revokes the usufruct or lease.). He owns the house because he paid for it (marital asset, it is his 50% only). His wife could sell the land but who would buy with him living there (after revoking the lease or usufruct it is easy to sell, especially when she will ask a lower than market price.)? I'm too lazy to go back through all these posts. [/quote]
It will not be easy for her to do that, but with a capable lawyer and enough money at stake it is doable.
[/quote]
A couple of questions; not trying to be difficult I'm just confused.
Okay let's assume she has a legal right to revoke the usufruct. How can she sell a house that she only owns half of?
[/quote]
When you divorce it will be part of the settlement. At that moment you hope for a good price. But a good price will only be possible when it is sold to a thai or a foreigner and she is willing to give a lease or usufruct.
[quote]Also, I'm confused on the mortgage issue mentioned in a prior post. Could you explain this in detail as I'm a little dim-witted at times. [/quote]
Take a mortgage on the house on her name. Pay the house of little by little. The personal risk will be lower. By how much depends on how much mortgage you can get.
[quote]BTW, I'm 51, married legally to a Thai, have a 3 month old girl, and planning to buy a piece of land in the near future and building a house on same. (I/we already have 5.5 rai but want to buy something closer in to town). Thanks for any help. [/quote]
You are in the same situation as me and i am hoping the solution Isaanlawyers thought of is solid. But for now, nothing is available that gives you a guarantee to be able to use or stay on land that is your wifes. If you get a usufruct of someone else than your wife it seems solid. As of my information now the only thing that stands in our way is being married to the person that owns the land.
[quote]One more question.....can my child who was born in Thailand legally own land here?[/quote]
Yes, but then you have the problem of a legal guardian. Do a search on that, a large subject by itself.
Posted 2008-02-28 22:20:29
KJ, can the Thai wife force a divorce if I don't agree to one?
I'm trying to get a loan in the wife's name, not so easy as she has no credit. I could get one in my name for 9 years but I'd rather it be in her name for 30 years to lower the payments and if things go bad I'd just walk away.
Had I researched things better I probably would not have married. I don't mind being fair if we split up but to buy everything and then possibly losing it all doesn't seem fair to me at all!
Posted 2008-02-28 23:36:13
LoveDaBlues, on 2008-02-28 22:20:29, said: KJ, can the Thai wife force a divorce if I don't agree to one?
I'm trying to get a loan in the wife's name, not so easy as she has no credit. I could get one in my name for 9 years but I'd rather it be in her name for 30 years to lower the payments and if things go bad I'd just walk away.
Had I researched things better I probably would not have married. I don't mind being fair if we split up but to buy everything and then possibly losing it all doesn't seem fair to me at all!
She can always say you beat her up and that your forced her to do things (A used strategy in the western world by mean spirited Thai wifes). 'A woman scorned...'
Never divorced before So i don't know about 'forcing a divorce'. Anyone?
I rent at the moment, until one of these 'ownership routes' is sufficient for me. I already purchased some land as a gift to the wife (and children). But that i can walk away from. A larger upcoming investment is waiting until the best route is clear. And if it is not, then no investment. Like everybody i trust my wife and don't expect anything bad in the future. At the same time you would be crazy to invest hard earned money in something you have no control over when things are not going as expected.
Posted 2008-02-29 09:09:30
Khun Jean, on 2008-02-28 23:36:13, said: LoveDaBlues, on 2008-02-28 22:20:29, said: KJ, can the Thai wife force a divorce if I don't agree to one?
I'm trying to get a loan in the wife's name, not so easy as she has no credit. I could get one in my name for 9 years but I'd rather it be in her name for 30 years to lower the payments and if things go bad I'd just walk away.
Had I researched things better I probably would not have married. I don't mind being fair if we split up but to buy everything and then possibly losing it all doesn't seem fair to me at all!
She can always say you beat her up and that your forced her to do things (A used strategy in the western world by mean spirited Thai wifes). 'A woman scorned...'
Never divorced before So i don't know about 'forcing a divorce'. Anyone?
I rent at the moment, until one of these 'ownership routes' is sufficient for me. I already purchased some land as a gift to the wife (and children). But that i can walk away from. A larger upcoming investment is waiting until the best route is clear. And if it is not, then no investment. Like everybody i trust my wife and don't expect anything bad in the future. At the same time you would be crazy to invest hard earned money in something you have no control over when things are not going as expected.
Well I agree with everything you say and appreciate the advice. 
Unless I can get a loan it looks like I'll keep renting. Asking the wife for a divorce so I can have better protection would not sit well.....she would think something else is up.
Have you checked the possiblilty of getting the wife to sign a document that keeps her from revoking the usufruct? I'm pretty sure this wouldn't hold up in court but at this point we're grasping at straws.
Posted 2008-02-29 14:13:39
Hi Seb; long-time, no speak.
I enjoyed reading your article. Can you clarify one point for me:
"Section 1423
The owner may object to any unlawful or unreasonable use of the property."
what constitutes, unreasonable? Would it be unreasonable for me to bring my new g/f or wife to the house? Is this subjective, objective, or court tested?
Edited by WilliamJarvis, 2008-02-29 14:14:10.
Posted 2008-02-29 22:16:04
Someone asked what will happen if his girlfriend or wife goes to our office? I won't go into details but Isaan Lawyers won't process a case involving a foreigner against another foreigner or a Thai person against a foreigner. I let you imagine why.
For the mortgage, if done between wife/husband while married, you must take into account what they call "sin somros" in Thailand or "common property" for the couple. In Thailand, everything you earn while being married is 50-50 between spouses. It's even more complicated if it involves pre-nuptial agreements.
For the right of habitation, it applies only for the house. A usufruct can be on the house AND land. And you also get the fruits... So, a usufruct covers more and is a better protection than a right of habitation (Si Tee Ar Sai).
I am surprised that people don't talk a lot about this right. Like superficies...
William: Nice to see you again. I will email you my answer.
UPDATE : For the first time this week, some land officers of a small city in Isaan asked us to wait one week between a transfer of property and the usufruct registration. They didn't want us to do it on the same day. We had never seen that before... and there is no legal basis for that. Welcome to Thailand!
Posted 2008-03-01 16:47:52
... maybe those small town Isaan land office persons actually ARE 'competent' and have read the Thai Land Code:
Section 74 In recording rights and legal acts by the competent authority under Section 71 , the competent authority shall have the power to interrogate the parties and summon persons concerned to give oral testimony or send relevant written evidence as may be necessary and then proceed as may be appropriate under the circumstances.
If there is reason to believe the recording of such rights and legal acts is in evasion of the law or there is reason to believe the purchaser is purchasing on behalf of an alien, instructions shall be asked of the Minister whose word shall be final.
Posted 2008-03-01 23:59:25
Excellent Information Sebastion, thanks.
Quote 6) It is possible to cancel or void a usufruct agreement
If you are NOT married to the owner granting you the usufruct, we believe it is not possible to cancel a usufruct and you are legally protected.
If you are legally married to the owner, Thai lawyers disagree on the application of article 1469 CCCT. This article mentions that all agreements made between spouses can be cancelled by the Court at the request of one party, unless agreements affect third parties. According to one interpretation, "publicity" or registration affect third parties and a usufruct can't be cancelled. According to the other interpretation, we have to search for the spirit of the law and it looks like Thai law wanted to end all relations between spouses in case of divorce, even usufruct agreements. A way to avoid the application of 1469 CCCT would be to have a second agreement (like a lease) affecting a third party before the Court could cancel your usufruct agreement.
A question regarding the above section of the initial post, is a thirty year 'lease' definately exempt from the above 'spirit of the law' statement which talks about an 'end to all relations between spouses in case of divorce' ? I realise cancellation of a 'lease' affects a 'third party', but that second interpretation does not refer to affecting third parties but mentions an end to 'all' relations.
Second question, IF a thirty year lease is not be terminated in the event of divorce, is the 'lessee' husband liable to pay the wife 50% of the house value that he owns in his name, if it was purchased after marriage and part of the marital assets ?
Also, at Hua Hin Land office, towards the end of last year they put a stop to registering leases from a legal Thai wife to a foreign husband (as far as all the cases we have been involved in, not sure if others have got them issued) and will only register Usufructs between spouses.
They actually promote the Usufruct route to spouses and even produce the contracts themselves (for a moderate fee.)
Thanks Burgernev
Posted 2008-03-02 17:18:16
I am starting to believe that Jazzbo is working for another law firm and is just trying to scare people. Maybe he is making more money with leases...
But you are right: I've seen interviews but it's rare. Jazzbo forgets the basic of civil law: EVERY PERSON IS PRESUMED TO BE ACTING IN GOOD FAITH (Section 6). How many leases or usufructs registration have you done Jazzbo? You are saying that you are not a lawyer somewhere above and are citing legal opinions and sections of the land code!!!! Quite strange! Why are you always trying to find the problem when I never said everything is 100% safe and was quite objective in my text? After all, I was just saying that leases are NOT better than usufructs. I was explaining usufructs in a text, written quickly, and it looks like some people appreciated.
For legal reasons, I think usufructs are a stronger protection and I believe I made my point. That was all jazzbo. Now, you should stop it.
If someone thinks it's different in Isaan than Bangkok, Pattaya, Hua Hin or whatever, it's up to him/her.
Everyone is free to seek legal advice where they want and compare services, experience, prices, etc.
Posted 2008-03-02 18:11:59
Isaanlawyers, on 2008-03-02 17:18:16, said: I am starting to believe that Jazzbo is working for another law firm and is just trying to scare people. Maybe he is making more money with leases...
I don't think Jazbo works for a law firm because these people are never negative/ skeptical about anything. Give him an answer…
You think a usufruct is a stronger right because it is a real right. Right? The supreme court gave leases aspects of a real right, and in some situations a lease is better, in some I would even advice a company, and in some you could advice a usufruct.
It just depends on the circumstances.
I would never advice a foreigner, without asking them to sign a disclaimer, to buy property in a Thai gf name, with or without a lease or usufruct!! Not in Thailand, not in my home country. It always must go with a strong warning!
Edited by BL4u, 2008-03-02 18:17:47.
Posted 2008-03-02 18:27:17
I have as much right to cite the Land Code as you do the Civil Code even though, so far in this thread, you have not once cited the Land Code... in the Land Code the word 'evasion' is used frequently to describe back-to-back Land transactions between a Thai national and a foreigner.
...so why is it, given Section 6 of the Civil Code, you presume that I am not acting in good faith.
Posted 2008-03-02 18:47:48
I always like your interventions BL4U. Seriously.
It is quite clear that a usufruct is stronger because you act as the owner... Remember that usufruct are not a creation of Thailand. It's pure civil law. Thailand has 12 sections in the Code about usufructs. We have 51 where I come from.
I was speaking with a Thai lawyer with a master degree, from BKK, last week. He never studied usufructs at school. Why? Because Thai people, I believe, rarely used these provisions. But it is the center of property law, and I believe it's very important to know them for a lawyer working in civil law. We called them "dismemberments of the right of ownership", with the "use", "servitude" and "emphyteusis" leases.
I don't want to compare Laws of different countries but it's important to know where it comes from and how parts of the law react together.
But you are right, all situations are different and in some cases a lease will be a better option. In others, something else. I agree with you BL4U.
PS: If you sign a disclaimer because a foreigner goes to you to buy property under the name of his girlfriend/wife, are you acting illegally by helping them knowing what they are doing? Buying under a Thai name? (You don't need to answer!  )
Posted 2008-03-03 17:50:08
jazzbo, on 2008-02-27 18:06:42, said: Section 96 Land Code; 'When it appears that any person (including a juristic person) has acquired land as the owner in place of an alien or juristic person under the provisions of Section 97 and 98, the Director-General shall have the authority to dispose of such land and the provisions of Section 94 shall apply mutatis mutandis'.
As the said in Watergate, FOLLOW THE MONEY. If the money comes from the foreigner to begin with, the then Thai national is by definition the nominee... I guess you will say that it IS her money. It was a gift.
But if, when my wife registered the property, I signed a document that said I have no interest in the property, then how could it be construed that she “acquired land as the owner in place of an alien”?
Seems to be that a usufruct is perfect for person that is not worried about losing the property due to divorce (if we were to divorce, I would just walk away anyway), but is worried about being able to live in it for the rest of his/her life if the spouse dies before them.
I don't need protection from my wife, I am not so sure about her family.... 
TH
Posted 2008-03-03 18:18:02
I agree thaihome, and if anything you could say the 'foreigner' has acquired land for the 'Thai' person, and not the other way round.
If you look at the wording it talks about 'acquiring' land and being the 'owner' of the land, on behalf of a foreigner. The foreigner is not trying to acquire or own it the land, but just wants to use the land.
Maybe this is why there are no cases of a foreigner having their quarter or half Rai eing taken away under this code (at least that I have heard of).
In Hua Hin now, the land office is giving Usufructs without question, and many buyers are happier with them than 30 year leases.
Burgernev
Posted 2008-03-03 23:48:22
Isaanlawyers, when a condominium is owned by a Thai and the usufructuary is a foreigner, is it then counted as part of the foreigner quota, which is not allowed to exceed 49% of the building? I think it should not be counted as such but am not sure.
--
Maestro
|
Sponsored by ...
|
0
