Real rights in Thailand are property rights registered and attached to a property rather than a person.
Usufruct
Superficies
Habitation
Servitude
Right of usufruct
Foreign and Thai nationals can obtain the right of usufruct by agreement with the owner of an immovable property. The contract for usufruct is the legal document that states and explains a formal agreement between the owner and the usufructuary (the person granted the right of usufruct). The principle of the right of usufruct is that it transfers the rights of possession, use, enjoyment and management of an immovable property from the owner to the usufructuary. The usufructuary can't sell or consume the property and must take as much care of the property as a person of ordinary prudence would take of his own property. The right of usufruct is not transferable and will in any case end on the death of the usufructuary (section1418). The usufructuary is allowed to transfer the exercise of his right under the usufruct to another person (section 1422), contrary to for example the right of habitation (the person granted a right of habitation can't transfer the exercise of his rights).
The right of usufruct can be created for a period of time or for the life of a person or persons. The right of usufruct can't be established for a period exceeding the life of a natural person or persons (e.g. it can't be an unborn child). If the right of usufruct is granted to a juristic person the period can't exceed 30 years. If a usufruct is created for a period of time the usufruct also depends on the life of the person (or persons) granted the right of usufruct. If the owner of a property grants to B the right of usufruct for a period of 30 years and B dies after 20 years the usufruct will be terminated after 20 years and the property will retrun to the owner. The right of usufruct distinguishes itself in this matter from for example the right of supericies (which is an inheritable right if registered for a period of time).
The Civil and Commercial Code sections 1417 to 1428 explains the right and responsibilities of the persons granted the right of usufruct.
The usufructuary is allowed to manage the property and has in this matter the same rights as the owner of the property, which includes renting out the property without the consent of the real owner. This includes registering the contract for hire exceeding 3 years with the land department. In case of a foreign national as the usufructuary most land offices in Thailand will refuse the registration of the contract for hire as they argue that foreigners are not allowed to own or manage land in Thailand under the Land Code Act and can also not obtain this right under a usufruct. The land offices make in this case a distinction between a foreign or Thai national as the usufructuary. In practice foreigners, as the usufructuary, can only rent out the property under usufruct for periods not exceeding 3 years at the time (unless they are able to register the contract for hire exceeding 3 years at the land department). If the property under usufruct is rented out by the usufructuary the hire of property is not automatically terminated together with the end of the usufruct (Scj. 2297/2541).
A usufruct can be granted with or without consideration. Usufruct must be registered at the local land office and registration fees are 1% and 0,1% stamp duty over the total consideration, or if the usufruct is granted without the exchange of value (money) the registration will cost less than 100 THB per plot.
A right of usufruct is often used to protect a foreign spouse's interest in a property in Thailand that is registered in a Thai spouse's name as a personal property. The right of usufruct is based on an agreement and as an agreement between husband and wife entered into during marriage it may not offer a full protection in case of a divorce (section 1469 Civil and Commercial Code), but in case of a marriage it is the only suitable right under Thai law that offers protection.
Superficies (right of)
The Right of Superficies is a transferable and inheritable interest in land to own or acquire buildings construction in, on or above the land owned by another for a specified term. The right of superficies separates ownership over the building and the land. The right of superficies can be registered as a separate right or in combination with a land lease. A right of superficies and land lease registered on the land title deed is the recommended structure to protect a long term land leasehold property investment in Thailand with ownership over the building.
The right of superficies can be obtained by agreement with the land owner and must similar to a usufruct be registered on the land title deed. As a registered right it follows the freehold title of the land and is enforceable against third parties and future (transferee) land owners. The right of superficies may be created either for a period of time up to 30-years, or for life of the owner of the land or the superficiary. If created for a period of time the right of superficies may be renewed upon expiration (Section 1412 Civil and Commercial Code).
The person granted the right of superficies has the right to transfer the right of superficies, and, if registered for a period of time, is transferable by way of inheritance.
Habitation (right of)
The right of habitation concerns only the right to dwell in a house. The grantee of the right of habitation does not pay rent to the gantor. If there is rental payment made, the matter becomes a Hire of Property. 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.
Servitudes (right of)
Right of servitude is governed by the civil and commercial code sections 1387 to 1401. 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'. Servitudes usually involve 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 parcel the dominant property.
Servitudes can involve several kinds of benefits and burdens, but usually it involves the use of neighboring well, the use of a road over adjoining land plots, laying irrigation ditches, laying pipelines or utilities over neighboring plots. A registered right of servitude is an important right in case a plot of land is surrounded by other plots of land and has no direct access to a public road. The right of servitude registered over adjoining plots guarantees uninterrupted access to dominant property.
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