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Family Laws Family Articles Usufruct in a Thai marriage


Protect your rights in a real estate owned by a Thai spouse

Real estate ownership by a Thai national married to a foreigner

When you registered a property (land and house) in Thailand on your Thai spouse's name during your marriage you may have thought about a personal protection in the form of a usufruct to protect your interest in case of divorce or in the event your Thai spouse would predecease you. However, you may not be familiar with the right of usufruct in Thailand as it is a typical Civil Law property right and you may also not be aware what your rights and obligations under a right of usufruct are.

The usufruct of an immovable property is primarily the right to use and manage another person's real estate property and receive the benefits ('fruits': Section 148 Civil and Commercial Code: By fruit of a thing is a natural fruit and legal fruit.
Natural Fruit denotes that which is a natural offspring of and is obtained from a thing in the normal possession or in the use thereof; and it is capable of acquisition at the time when it is severed from the thing.
Legal Fruit denotes a thing or other interest obtained periodically by the owner from another person for the use of the thing; it is calculated and may be acquired day by day or according to a period of time fixed.
) from it. Management in this matter means to the extent permissible for foreigners under Thailand land laws. This means you can live in the house and you can for example rent it out and keep the rent but as a foreigner you cannot register a rental exceeding 3 years with the Land Department.

The usufruct does not give the right to sell the property nor does it gives the title to the property. The usufruct comes to an end at the end of the agreed period and on the death of the person granted the right of usufruct. Whether the usufruct is given for a period of time of up to 30 years or for the life of a person, in any case, the usufruct comes to an end on the death of the person granted the right of usufruct. A usufruct is a form of life interest in the real property.

A usufruct could also be given to more than 1 person at the time. A right of usufruct in Thailand is usually a legal instrument to protect a foreign spouse in case the property is registered on the Thai spouse's name. It enables the foreign spouse to use the property when he survives the Thai spouse and registered owner. The Thai spouse could for example leave the property to the couple's children, if of Thai nationality, but warrants by way of a registered right of usufruct that his or her foreign spouse has the use and benefit of the property during his lifetime. Upon the usufructuary's death the usufruct comes to an end and the Thai registered owner(s) receives full unencumbered ownership again.

The usufructuary under Thai Law has the obligation to maintain the property and take normal care of the property. If the usufructuary fails to do so and the property would lose value as a result of poor management or would become in a poor state of repair the owner has the right to terminate the right of usufruct. The usufructuary is liable for loss of value or destruction of the property unless he can proof that damages are not caused by his fault.

The creation of a usufruct could in certain circumstances be an effective option to protect a foreign spouse during his marriage in Thailand and upon death of his or her Thai spouse, however in some cases a usufruct contract may not be the best option. For example if the Thai spouse registers ownership over land and the couple plans to build a house on it a right of superficies may be a more suitable right.

Read more (related)

usufruct document  

Comments   

 
#1 Underhill 2012-04-24 06:31
I do not understand this. Can my Thai wife terminate the usufruct contract we registered or not. I spoke with the Thai lawyer who registered the usufruct for us (yours by the way) that this is not possible. Some long term foreign residents here in Phuket are convinced that section 1469 of the Thai civil code is clear on this and that she can terminate the usufruct given to the foreign husband at any time (section 1469 'Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby').

Am I protected with a usufruct in my name or not? Your opinion is much appriciated.
 
 
#2 William Hendershot 2012-04-24 07:57
Your lawyer is right, not your friends.

A registered right of usufruct is not a contract that can be terminated by your wife. Usufruct is a real right and as a real property right governed by book IV PROPERTY in civil and commercial Code and not by book III CONTRACTS. This means that once the right of usufruct is registered by the land office it is guaranteed and your wife would need 1 your consent or 2 a court order to have it removed from the title deed. For example when you would divorce the usufruct could be terminated by a court as part of the division of assets.

After your marriage (under Thai Family Laws) all property of husband and wife is governed by the statutory system of 'property between husband and wife' (sections 1465 to 1493 - read: samuiforsale.com/.../... ). Any agreements between husband and wife made during the marriage affecting their assets (in conflict with the statutory system) could be set aside by the spouses themselves or a court (section 1469). This includes usufruct and superficies but it is difficult to void and deregister such rights.

Section 1469 'the right to void any agreement' also includes gifts between husband and wife made during the course of the marriage. If you gave the money for purchase of the land to your wife you could demand the return of the money expended in a divorce and if the usufruct is cancelled. Gift is also placed in book III CONTRACTS and described as 'a gift is a contract...'. Some evidence of the gift out of your personal property will be required.

In a divorce in Thailand the marital home is often divided 50/50 between husband and wife. The reason for this is section 1474 last sentence 'In case of doubt as to whether a property in a common property between husband and wife or not it shall be presumed to be jointly owned'.
This is more or less a standard division in a divorce, but if you can prove that the property is bought during the marriage with your personal assets the division could be different than a 50/50 division, even despite any declaration made at the land office at the time of purchase.

Reference civil and commercial code: samuiforsale.com/.../...