USUFRUCT and superficies. As Thailand property laws are for a large part based on the French Civil Code the right of superficies and the right of usufruct are included in the Thailand Civil and Commercial Code. Superficies and Usufructs are governed by Book IV ‘property‘ and are similar to real property rights known in continental Europe.
Real rights: Superficies and Usufruct
Right of Superficies in Thailand
SUPERFICIES in Thailand is a civil law real estate right which goes all the way back to Roman times. It still exists in mainland Europe and commonly used in property constructions where the owner of the land is not the same as the owner of the building. In France the right of superficies it is called ‘droit de superficie‘, in Germany it is called ‘Erbbaurecht‘ and in the Netherlands it is called ‘recht van opstal‘.
Legal Service: Superficies Agreement
The principle of the right of superficies is in all these countries the same; it grants the superficiarius (meaning the person granted the right of superficies) the right to own buildings, structures or plantations upon land belonging to another person without obtaining ownership of the land. The right of superficies legally separates ownership over the structures upon the land from ownership over the land. A superficies can be registered as a separate right or as a supporting right, i.e. in combination with a land lease agreement.
The main benefit of a superficies lies in the fact that it creates the right of ownership over the building and offers an additional protection to a land lease agreement and allows certain clauses that are under a lease merely personal or contractual rights (rights attached to a person as opposed to right attached to a property). It could happen under Thai law that certain rights under the land lease agreement are lost or not enforceable but the rights under the superficies agreement remain in full force (as these are attached to the property).
Under Thailand superficies law the right of superficies in Thailand is limited to a period of time of up to 30 years or for the life of the owner of the land or the life of the superficiarius1. The right of superficies must be registered on the land title deed to be complete and enforceable.
Registration takes place at the local land office and a registration fee of 1.1 % is charged based on the consideration for the superficies. If the superficies is granted without further consideration (as part of a long term land lease construction) the land office will charge a minimal amount for registration.
Right of Usufruct in Thailand
USUFRUCT is created by an agreement between the owner of the immovable property and another person, Usufruct grants the right to use or occupy another person’s real property for one’s life or up to 30 years.
Usufruct is governed by the Thai section 1417 to 1428 of the Thailand Civil and Commercial Code.
Usufruct is a Civil Law right from continental Europe and in Germany it is called nießbrauch (Gebrauch (und) Fruchtgenuss), in Belgium and the Netherlands it is called ‘vruchtgebruik‘ and in France it is called usufruit. Also the right of usufruct has a long history going back to Roman times.
A right of usufruct in Thailand gives the right to use and manage and enjoy the ‘fruits’ of a real estate property during a person’s or persons life time.
The right in the real estate property exists so long as the usufructuary (the holder of the usufruct right) is alive2. After his or her death the real estate property reverts back to the owner. Often a usufruct is given to a family member such as a foreign spouse as a gift with the idea that a foreign spouse is protected in the event of death of the Thai spouse (owner) who then can remain in the property upon the death of the owner.
Legal Services: Thailand Usufruct
The usufruct interest in the real property in Thailand must be recorded in the official land registry of the local land office. The registration fees are the same as for the above right of superficies. By registering the usufruct agreement the public is put on notice of the recorded usufruct burden on the land and therefore is enforceable against any third parties such as a transferee owner. The right of usufruct is not complete unless registered with the Thailand land department.
The usufructuary is not allowed to sell the property during his right of usufruct without agreement of the registered owner of the property. 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 and become in a poor state of repair the owner has the right to protect his interest and even 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.
Right of Habitation
HABITATION belongs to the same group of property rights as superficies and usufruct and concerns the right to dwell in a house. The Grantee of the right of habitation does not pay rent to the Grantor. 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.
- Section 1412 Thailand Civil Code: ‘a right of superficies may be created either for a period of time of up to 30 years or for life of the owner of the land or the superficiary [↩]
- Section 1418 Thailand Civil Code: …. In any case the usufuct comes to an end on the death of the usufructuary [↩]
How about right of habitation in Thailand?
Habitation is also a real right which originates from the mainland Europe civil law system. It grants the right to a person to live in a house belonging to another person gratuitously. The right of habitation differs from a usufruct contract as the right of habitation grants only the use of a property for the residence of the grantee himself and his family.
In some cases a right of habitation is created by a Thailand Last Will and Testament.
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