SanuiForSale
กฏหมายไทย isn’t simple
In the wake of the 90-year lease myth being debunked, many foreign investors are now asking: what is a legally safe way to structure long-term property use in Thailand? The answer, while not a loophole, is a strategy fully grounded in Thai law, combining a 30-year lease of land with a registered right of superficies for buildings.
The right of usufruct transfers possession, use and enjoyment of an immovable property from the owner to the usufructuary. Usufruct can only be registered over properly titled immovable property and is established by agreement with the owner and registration at the local land office. The contract or memorandum for usufruct is the legal document that states and confirms the formal agreement between the owner and the usufructuary (the person granted the right of usufruct).
The right of superficies is used when you build upon land you do not own. It creates the registered right to use the land and to own the structures you build upon the land without obtaining ownership rights over the land itself. A right of superficies may be established either for 1- a period of time up to 30-years, or 2- for life of the owner of the land or 3- for the life of the superficiary. A right of superficies registered for a specified term is a transferable and inheritable interest in land.
The grantee of the right of habitation does not pay rent to the grantor. If there is rental payment made, the matter becomes a tenancy. A right of habitation may be created for either a specific period of time or for the lifetime of the grantee. In case the rights are granted for a specific time period, the law states that such a period may not exceed 30 years; if a longer period is fixed, it shall be enforceable for only 30 years. The grant may be renewed for a period not exceeding 30 years from the time of renewal. Lastly, the right of habitation is not transferable by way of inheritance.
Right of servitude is governed by the sections 1387 to 1401 of the Thailand Civil and Commercial Code. Section 1387: 'An immovable property may be subjected to a servitude by virtue of which the owner of such property is bound, for the benefit of another immovable property, to suffer certain act affecting his property or to refrain from exercising certain rights inherent in his ownership'. A right of servitude usually involves two or more separate properties/ plots of land, one of which is burdened and the other benefited by the servitude. The burdened parcel is called the servient property and the benefited land parcel the dominant property.