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.
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Practical advice from real lawyers on most common legal issues for expats in Thailand. Samuiforsale provides general Thai legal information and law resources in English over the Internet. The information in Samuiforsale should be used as general Thai legal information but should not be treated as a substitute for specific legal advice concerning individual situations.