While I understand the need for keeping foreign land speculators from buying up land through nominees I think that considerations need to be made for those in genuine marriages. Do you think anything can be done regarding this problem so that those in valid marriages can own land with their wives?
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Issues For Nominees Buying Land For Foreign OwnersCan anything be done for those in genuine marriages?
Started by thailandlover, 2009-09-04 16:46
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111 replies to this topic
#2
Super Member Posted 2009-09-04 17:15:38
Of course something could be done. There would be a few admin issues to sort out like "what is a genuine marriage?", "how much and what type of property should be permitted?", "what proof should be required?", etc. But all quite do-able.
Now pinch yourself. All those anti-foreigner articles in the Post throughout August, and continuing to today. The infamous Thailand Research Foundation "study" saying that foreigners own/control 90%+ of Phuket beachfront. How many voices of reason did you then hear in response? You know, people speaking up in defence of truth, sense, justice? Now take out the farang voices ... anyone left? Oh yes, the Phuket Lands Dept ... but they only spoke up to cover their butts. Expect no progress on this issue in the near future, and certainly not while the political situation remains so unsettled. The best you can hope for is that things don't slip any further backwards than where they are now. I say this with no sense of bitterness, it is simply reality in Thailand at the present time. I suspect that resolving the current confusion is somewhere on the government's to-do list, but right now they have far more pressing issues to resolve. Edited by chiangmaibruce, 2009-09-04 17:25:51. #3
Super Member Posted 2009-09-04 17:48:36
Agree with Chiangmaibruce. If you are hoping for any postitive change in the foreseeable future - forget it! Sure something could be done - but there is no political will to change the status-quo in favour of Farangs. The day I see just one headline such as 'Thai Government Urges Changes To Help Foreigners Live Trouble Free In Thailand' - I will be buy a hat - just so I can eat it!
I am just in the process of renewing my annual extension based on Marriage. I (like you I guess) have to do this every year. If next year, I dont have the minimum balance of 400,000 Baht in the bank for 3 months - then I will be kicked out of the country. Sadly Thailandlover, if there are any changes to the land laws, I do not think they will favour us foreigners married to Thais at all. 
#4
Super Member Posted 2009-09-04 19:21:35
While I understand the need for keeping foreign land speculators from buying up land through nominees I think that considerations need to be made for those in genuine marriages. Do you think anything can be done regarding this problem so that those in valid marriages can own land with their wives? The restriction on Thai wives of Foreign husbands holding land having been removed long ago I do not personally see what 'needs to be done'. How a husband and wife in a 'genuine' marriage choose to hold, share or split their assets in accordance with the prevailing and relevant law in their resident contry is entirely up to them. If marriage were to give rise to special real estate benefits that would likely create worse social problems IMHO. Should aliens have greater property rights generally? Regardless of whatever restrictions and checks / balances might be necessary first the reason why they should (if at all) needs to be decided and defined. That aliens might want to have those increased rights is really a non-issue. Whether Thailand should give those rights is entirely a matter for Thailand. #5
Platinum Member Posted 2009-09-06 12:24:25
This post is typical of the misinformation that is being passed around on this forum. There are no restrictions in place for the wife of a foreigner to buy land. The husband is required to sign an affidavit confirming the land is not matrimonial property. The nominee issue does not apply unless a company has been setup and the wife is the majority shareholder.
TH #6
Super Member Posted 2009-09-06 13:00:13
I applaud the upbeat optimism of Thaihome and Thaiwanderer, and also happily concede that there are (currently) no restrictions on the wife of a foreigner owning land (as the existing regulations are now commonly interpreted)
But now let's add to the mix the following factors: * new legislation concerning land ownership proposed to be introduced to parliament this month or next * previous discussions in thaivisa and elsewhere that concluded (in my mind at least) that purely by a very strict 'letter of the law' interpretation of current laws, property purchases by the wives of foreigners could be further discouraged or even prevented * there is currently little or no popular or political support for making things easier for foreigners to buy or control land (or - I suspect - even to preserve existing rights held by their wives) * the current scape-goating of foreigners is in the interest of both politicians and the so-called Bangkok elite in terms of (a) creating a bogeyman that can be used as a rallying point and (  taking the spotlight of those who are doing the really big property diddles every day of the week* the unchallenged (by Thais) assertion in the Thailand Research Fund's "study" that essentially all purchases of land by the wife of a foreigner constitute foreigners holding land via a nominee I wouldn't be crazy paranoid about the looming convergence of these various factors, but I sure wouldn't be too complacent either. Edited by chiangmaibruce, 2009-09-06 13:05:31. #7
Senior Member Posted 2009-09-06 18:58:07
Agree with Chiangmaibruce. If you are hoping for any postitive change in the foreseeable future - forget it! Sure something could be done - but there is no political will to change the status-quo in favour of Farangs. The day I see just one headline such as 'Thai Government Urges Changes To Help Foreigners Live Trouble Free In Thailand' - I will be buy a hat - just so I can eat it! I am just in the process of renewing my annual extension based on Marriage. I (like you I guess) have to do this every year. If next year, I dont have the minimum balance of 400,000 Baht in the bank for 3 months - then I will be kicked out of the country. Sadly Thailandlover, if there are any changes to the land laws, I do not think they will favour us foreigners married to Thais at all. I don't think you have to have 400,000 baht in the Bank for three months. If you can prove a certain level of monthly income, which I believe is 40,000 that meets the requirement instead of depositing 400,000 baht on which you receive no interest by the way. #8
Posted 2009-09-07 12:36:28
* previous discussions in thaivisa and elsewhere that concluded (in my mind at least) that purely by a very strict 'letter of the law' interpretation of current laws, property purchases by the wives of foreigners could be further discouraged or even prevented Thai wives can not be prevented from owning land due to the fact that the previous law which prevented Thai wives (with foreign husbands) from owning land was repealed because it was proven to be unconstitutional. This was not an interpretation, it is law, and can not be rescinded. However, most land departments will still ask the foreign husband to waive all future claim on the property by signing a affidavit at the land department office upon transfer stating that all money used to buy the property is hers. That might discourage those who do not have much faith in their wives perhaps, but a marriage without trust is hardly a marriage at all. I thoroughly agree that there is little popular support for such a law that allows foreigners to own land, and I highly doubt that foreigners will be able to own anything more than a leasehold interest in land. Personally I have my doubts as to whether the maximum length of tenure will ever exceed the current 30 years, but there are many rumours out there that this will be extended, but I dont think that it would be a politically astute move at this juncture in Thai politics. For now I would settle for new legislation that would better govern how options to renew work, i.e. a Landlord and Tenant Act for Thailand. As it stands now your option to renew is not worth all that much if, in 30 years, the lessor has passed on or the company has gone bankrupt, the option to renew has gone too. Legislation that guarantees a tenants right to renew (although not an unconditional right) would be a great improvement. Done well, it could be a valuable concession to the farang ownership issue, vastly improving security of tenure beyond the initial maximum 30 year term and because its an oblique approach it would be more politically palatable. #9
Platinum Member Posted 2009-09-08 20:49:41
* previous discussions in thaivisa and elsewhere that concluded (in my mind at least) that purely by a very strict 'letter of the law' interpretation of current laws, property purchases by the wives of foreigners could be further discouraged or even prevented Thai wives can not be prevented from owning land due to the fact that the previous law which prevented Thai wives (with foreign husbands) from owning land was repealed because it was proven to be unconstitutional. This was not an interpretation, it is law, and can not be rescinded. However, most land departments will still ask the foreign husband to waive all future claim on the property by signing a affidavit at the land department office upon transfer stating that all money used to buy the property is hers. That might discourage those who do not have much faith in their wives perhaps, but a marriage without trust is hardly a marriage at all. The Land Code makes no mention of the rights of Thais married to foreigners and technically the pre-1999 and current regulations relating to purchase of land by Thais married to foreigners are neither statutory law nor interpretations. They are ministerial regulations pursuant to the Land Code. These have the force of law but can be amended by the Interior Ministry without the need for parliamentary approval. The current regulation can therefore be amended at the discretion of the Minister in the same way as the pre-1999 regulation was amended. I think it is unlikely to be changed, despite all the current houhaa because the constitutional issue remains and it is viewed as impractical to check the funding of Thai spouses, as specifically mentioned in the ministerial regulation. The very worst case possible would probably be that Thai spouses would in fact have to produce evidence of funding from their own resources for future purchases, while past purchases with signed affidavits would remain legal. Even if they tried this, there would probably be a legal challenge that a gift from a foreign spouse with the affidavit does in fact represent funding from the resources of the Thai spouse. There are cases where Land Offices don't bother to ask for the affidavit when they know the buyer is married to a foreigner or even refuse to provide it. However, it is a legal requirement according to the ministerial regulation that it should be signed by both spouses "whether they are married in accordance with the law or married not in accordance with the law" to give a direct translation of the wording. This torturous wording effectively extends to cover the cases of unmarried couples cohabiting, couples married under local custom but not registered and couples married overseas who have not registered their marriages Thailand and have not provided evidence of their marriage to the Thai authorities (i.e. the wife has retained her Thai surname). The Interior Ministry gives examples of title deeds it claims to have cancelled because they were issued to Thai women who had Thai "husbands" to whom they were "married but not legally married". Interestingly there is no concept of common law marriage in the Civil Commercial Code but it is clearly defined in the Land Code. I also tend to agree with you that things will not get any easier for foreigners wanting to own land. In 1999 The Democrat Party tried to introduce an amendment to the Land Code to permit foreigners married to Thais to purchase a rai of land for residential purposes. This was virtually booed out of the house and created an uproar in the media. Virtually all that was left of the 1999 Land Code amendments in the end was the provision that allows foreigners to buy a rai of residential land, if they invest 40 million baht in approved investments, not including the investment in the property or construction. It was even a struggle to get this through parliament as many opposed it and some suggested the investment should be 400 million baht not 40, giving the usual moronic arguments about selling out Thailand to foreigners and Thais beooming beggars in their own country. The Interior Ministry made a point of dragging its heals in issuing the necessary ministerial regulations for several years and I imagine it still remains extremely difficult or even impossible for a foreigner to buy land this way, even though the right is enshrined in statutory law. I have never heard of anyone who did it. The explanatory notes to the law which explain superfluously that the new law was expected to increase foreign investment in Thailand to help get it out of the late 90s recession provide a good excuse for civil servants who are reluctant to enforce the law, as they can argue that Thailand is already out of that recession (and into another one). Longer than 30 year leases may be more of a possibility in future. 50 year leases have been permitted for commercial property since 1999. Since there is already a precedent, perhaps 50 year residential land leases will eventually be mooted, probably with a raft of unattractive restrictions. Unfortunately there is not much of a lobby for longer leases. Most Thai property developers sell to Thais and companies like Jones Laing and Richard Ellis that are vocal on this are viewed as foreign mouth pieces. One thing I have always thought odd is that no land ownership rights have ever been suggested for permanent residents. They would seem a much better case than foreigners married to Thais as proposed by the Dems in 1999. The PR process now takes several years and requires a great deal of onerous vetting, which should help satisfy any national security concerns, whereas anyone, even a terrorist, can marry a Thai. The toughness of the process also means that there aren't that many PRs, apart from the large number of now elderly Chinese who got it when it was a formalilty but citizenship still required a large under the counter police contribution. If there are ever any real witch hunts I would think that companies with nominee Thai shareholders would be the first targets. Many are very easy to detect (e.g. a company with no business that owns a villa with an infinity pool in Phuket and all the Thai shareholders are lawyers);they have been on notice to restructure since 2006; and they are in breach of both the Land Code and the Foreign Business Act. The auditors often also conveniently place a red flag in the auditor's statement to cover themselves in the form of a qualification saying that they could not verify any of the information in the accounts because management failed to provide requested documentation. The Thai accountants rarely provide their farang clients with a translation of this page which those without a financial background don't realise is important. Since Thai politics have now become so messy that tourism and foreign investment numbers are things that can be readily sacrificed for short term political gains, don't count out this possibility. It would provide a major chance for nationalistic grandstanding by underachieving politicians and create huge opportunities for Thais to benefit from picking up cheap property, plus restructuring fees for lawyers and accountants, fees for the Land Dept, not to mention the opportunities for extortion and blackmail by police and other civil servants. In somewhat different circumstances Spain had no qualms in bulldozing foreigners' villas that were built without planning permission and Mexico has happily reclaimed land in coastal areas where foreigners are not allowed to buy, even though the developers and lawyers assured them the structures were completely legal. Spain and Mexico still get foreign tourists and investment, even though short term damage must have been done. If they are smart enough to find them, these precedents might provide encouragement to Thai politicians looking for glory and a quick buck. Edited by Arkady, 2009-09-08 21:11:41. #10
Super Member Posted 2009-09-09 01:03:40
Good post Arkady! You and quiksilva are always worth reading.
#11
Super Member Posted 2009-09-09 06:32:42
"Issues For Nominees Buying Land For Foreign Owners, Can anything be done for those in genuine marriages?"
"Genuine marriages", compared to what - falling in love with a bar girl, giving her everything you own, and then scratching your head wondering what happened? #12
Senior Member Posted 2009-09-09 09:01:10
While I understand the need for keeping foreign land speculators from buying up land through nominees I think that considerations need to be made for those in genuine marriages. Do you think anything can be done regarding this problem so that those in valid marriages can own land with their wives? The restriction on Thai wives of Foreign husbands holding land having been removed long ago I do not personally see what 'needs to be done'. How a husband and wife in a 'genuine' marriage choose to hold, share or split their assets in accordance with the prevailing and relevant law in their resident contry is entirely up to them. If marriage were to give rise to special real estate benefits that would likely create worse social problems IMHO. Should aliens have greater property rights generally? Regardless of whatever restrictions and checks / balances might be necessary first the reason why they should (if at all) needs to be decided and defined. That aliens might want to have those increased rights is really a non-issue. Whether Thailand should give those rights is entirely a matter for Thailand. #13
slightly retarded member Posted 2009-09-09 10:22:31
Also, if under investigation and found not to be in order, the property will NOT be seized.
The owner will be given a time frame of between 180 days and 1 year (up to the judge) to dispose of the property! There is however the legal possibility of the justice system filing criminal charges against you and the nominee(s) for fraudulently acquiring property. Chances are the verdict will be a fine, and not jail time, unless we are talking about a developer with a big amount of propert to his name, all built/bought as a profitable business. Just owning the property to live in with your wife will more likely not even see a criminal charge... #14
Super Member Posted 2009-09-09 12:19:45
Also, if under investigation and found not to be in order, the property will NOT be seized. The owner will be given a time frame of between 180 days and 1 year (up to the judge) to dispose of the property! There is however the legal possibility of the justice system filing criminal charges against you and the nominee(s) for fraudulently acquiring property. Chances are the verdict will be a fine, and not jail time, unless we are talking about a developer with a big amount of propert to his name, all built/bought as a profitable business. Just owning the property to live in with your wife will more likely not even see a criminal charge... Understood and generally agreed, but however 'unlikely' seizure, fine and imprisonment are all available options - not exactly 'freehold investment in all but name' or a safe 'gift' to make is it? Edited by thaiwanderer, 2009-09-09 12:21:43. #15
Asian Fetish Posted 2009-09-09 14:02:40
I wonder why everybody concentrates on the 30 year lease while Thai Law also allows lifelong Usufruct?
#16
Platinum Member Posted 2009-09-09 14:18:02
Also, if under investigation and found not to be in order, the property will NOT be seized. The owner will be given a time frame of between 180 days and 1 year (up to the judge) to dispose of the property! There is however the legal possibility of the justice system filing criminal charges against you and the nominee(s) for fraudulently acquiring property. Chances are the verdict will be a fine, and not jail time, unless we are talking about a developer with a big amount of propert to his name, all built/bought as a profitable business. Just owning the property to live in with your wife will more likely not even see a criminal charge... That is correct. Under the Land Code there is no provision for seizure of property or even revocation of title deeds, as the director general of the Land Dept threatened in his charming talk in Phuket. The land must be disposed of and if this is not done in the timeline set by the court, the court can order it to be sold at public auction but the nominee owner will still receive the proceeds less administrative fees. As far as criminal penalties are concerned it is hard to say exactly what might happen, if they really decided to crack down and make a few examples. For individual nominee situations there is more than one criminal offence involved. You can be charged both with illegal purchase land as a foreigners or on behalf of a foreigner and making false statments to a government official or getting some one to make false statements on your behalf. In the case of a corporate ownership situation, you can also be charged with criminal offences under the Foreign Business Act in addition to the other offences under the Land Code. Foreign developers would be the tastiest targets of all, since they can also be charged with a more serious offence under the FBA of operating a property development business. Most of them have also failed to get property development licenses for their projects, another criminal offence under the Land Code, and most also probably fail to pay their full taxes. First of all I would say that just owning the property to live in with your wife is unlikely even to attract prosecution, as long as it is in the wife's name. If you have signed the affidavit, there is not even any obvious offence committed. Even without the affidavit, I think you are very unlikely ever to be targetted, unless some one with influence has got it in for you, because this cuts too much into the rights of Thai women to provide any political capital to any politicians. A nasty potential wrinkle here though is that gifts made to a partner to whom you are not legally married are taxable. Sinsot is tax free, so a gift made before marriage could technically be classified that way. I think that owning land through a company in which your wife is the major shareholder makes you a less likely target as it would also appear to limit the rights of Thai women. However, while you can defend the right for a married couple to run a family business together, this looks less defensible, if there is no real business, and the Land Dept obviously doesn't like this method of avoiding signing the affidavit or the ease with which shares and directorships can be transferred around. So that is more of a grey area. On the other hand, I think that prison sentences could easily be handed down to foreigners with corporate land owning structures who have used nominees that are not their wives or common law wives, particularly in the case of developers and now we should perhaps also add corporate foreign rice farmers. Anyway even if you get a small fine, Immigration has the discretion to black list you for committing a criminal offence and this could take away your livelihood, break up your family and ruin your life. Although it is not common for first offences, they have certainly black listed people who were fined in court for work permit offences without caring whether they had Thai wives and children or not. The law is the law and appeal against black listing is up to the discretion of the Interior Minister and is not a transparent judicial process. Edited by Arkady, 2009-09-09 14:34:45. #17
Member Posted 2009-09-09 18:25:01
had a 'head's up' from long term friend and orbortor official saying there're widespread plans afoot to seek out all foreigners' investment property here and 'remedy' anything looking slightly dodgy. between the lines from aforesaid, they want all foreign investment to cease immediately (in light of no outside investment here, they seem to think that foreigners have grabbed the lion's share of land - notwithstanding the fact the locals themselves have profited from the many sales in the past), quickly followed by an 'ousting' of any foreigners 'deemed' to have been in breach of any and all thai based property laws.
Edited by michaelbutcher, 2009-09-09 18:27:17. #18
Super Member Posted 2009-09-09 23:53:53
That is correct. Under the Land Code there is no provision for seizure of property or even revocation of title deeds, as the director general of the Land Dept threatened in his charming talk in Phuket. The land must be disposed of and if this is not done in the timeline set by the court, the court can order it to be sold at public auction but the nominee owner will still receive the proceeds less administrative fees. Fire sale of landpursuant to court order is not going to fetch a decent price though. #19
slightly retarded member Posted 2009-09-10 08:38:58
That is correct. Under the Land Code there is no provision for seizure of property or even revocation of title deeds, as the director general of the Land Dept threatened in his charming talk in Phuket. The land must be disposed of and if this is not done in the timeline set by the court, the court can order it to be sold at public auction but the nominee owner will still receive the proceeds less administrative fees. Fire sale of landpursuant to court order is not going to fetch a decent price though. So that is 6 months to find yourself a Thai person or a Thai corporate entity with the financial means to buy your land/house (so that person/entity cannot be classed a nominee, but the actual rightful owner) and then write out a 30 year lease. Do I see a new business opportunity here?  It will cost, and you go from freehold to leasehold, but you should not lose your house nor the right to live in it in the very near future. Who knows what new possibilities will pop up in the next 30 years. #20
Super Member Posted 2009-09-10 13:14:46
That is correct. Under the Land Code there is no provision for seizure of property or even revocation of title deeds, as the director general of the Land Dept threatened in his charming talk in Phuket. The land must be disposed of and if this is not done in the timeline set by the court, the court can order it to be sold at public auction but the nominee owner will still receive the proceeds less administrative fees. Fire sale of landpursuant to court order is not going to fetch a decent price though. So that is 6 months to find yourself a Thai person or a Thai corporate entity with the financial means to buy your land/house (so that person/entity cannot be classed a nominee, but the actual rightful owner) and then write out a 30 year lease. Do I see a new business opportunity here? It will cost, and you go from freehold to leasehold, but you should not lose your house nor the right to live in it in the very near future. Who knows what new possibilities will pop up in the next 30 years. Fair risk there given already fell foul of scrutiny? X ordered to dispose so sells to y, y gives X a lease. #21
Super Member Posted 2009-09-11 12:02:56
That is correct. Under the Land Code there is no provision for seizure of property or even revocation of title deeds, as the director general of the Land Dept threatened in his charming talk in Phuket. The land must be disposed of and if this is not done in the timeline set by the court, the court can order it to be sold at public auction but the nominee owner will still receive the proceeds less administrative fees. Fire sale of landpursuant to court order is not going to fetch a decent price though. So that is 6 months to find yourself a Thai person or a Thai corporate entity with the financial means to buy your land/house (so that person/entity cannot be classed a nominee, but the actual rightful owner) and then write out a 30 year lease. Do I see a new business opportunity here? It will cost, and you go from freehold to leasehold, but you should not lose your house nor the right to live in it in the very near future. Who knows what new possibilities will pop up in the next 30 years. #22
Super Member Posted 2009-09-11 13:27:10
That is correct. Under the Land Code there is no provision for seizure of property or even revocation of title deeds, as the director general of the Land Dept threatened in his charming talk in Phuket. The land must be disposed of and if this is not done in the timeline set by the court, the court can order it to be sold at public auction but the nominee owner will still receive the proceeds less administrative fees. Fire sale of landpursuant to court order is not going to fetch a decent price though. So that is 6 months to find yourself a Thai person or a Thai corporate entity with the financial means to buy your land/house (so that person/entity cannot be classed a nominee, but the actual rightful owner) and then write out a 30 year lease. Do I see a new business opportunity here? It will cost, and you go from freehold to leasehold, but you should not lose your house nor the right to live in it in the very near future. Who knows what new possibilities will pop up in the next 30 years. ..Or want to get involved in an apparent nominee structure with someone who has already had their hand slapped. #23
Senior Member Posted 2009-09-15 16:45:13
As Arkaday posted (excellent post!) it has been deemed impractical to check for funding in case a foreigner's spouse is purchasing land. If they would go through with this then maybe every person has to provide such proof of funding. This could be easily possible as the regulation about foreign spouses not being able to buy land has been ruled unconstitutional already and this would somewhat be the same. Wouldn't it be great to see how some politician is struggling to provide such prove?
#24
Super Member Posted 2009-09-16 05:50:19
As Arkaday posted (excellent post!) it has been deemed impractical to check for funding in case a foreigner's spouse is purchasing land. If they would go through with this then maybe every person has to provide such proof of funding. This could be easily possible as the regulation about foreign spouses not being able to buy land has been ruled unconstitutional already and this would somewhat be the same. Wouldn't it be great to see how some politician is struggling to provide such prove? It would not be unconstitutional to require any Thai (or any Thai if requested) receiving ownership to establish to some degree that they are not a nominee. But 'they' don't have to catch anywhere near everyone. Indeed they don't even need to try to catch anyone just have one official say some things and it frightens some. Political Points are scored, the ones who were unsure whether to invest might decide otherwise, some farangs already illegally enjoying practical ownership might get nervous and the wheel of Thai life carries on spinning (as does some farang's paranoia). If 'they' wished to catch anyone for political reasons that would be easy. Of the top of their head any land office official can give a long list of titles where the structure is likely illegal with minimal investigations required (whether mia farang or thai paper company). Indeed any street Somchai can give a long enough list to more than get started. (obviously 'they' assumes a single coherent policy in any event). #25
Super Member Posted 2009-09-16 07:02:51
They don't have to hammer every nail. Just keep the hammer handy and let Freddy Falang know its in the drawer.
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