Alf Witt
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Does anyone have any experience of exercising treaty rights in taking an unmarried partner and her child to live in Spain (provable long-term relationship and visitor visas over last 4 years available)?
Does Spain recognise unmarried partners?
Can application be made from the UK?
What forms are necessary and from where can they be obtained?
Should application for leave to remain in UK as unmarried partmner be made first or would that be inconsistent?
Thanks for any information.
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Just an aside, but it is indicative of how much is known abroad about Bangkok. I read in a UK newspaper a couple of days ago that a senior police officer who is waging a war against prostitution in Glasgow doesn't want the city to be known as "the Bangkok of the Northern Hemisphere". Somebody should inform this worldly-wise campaigner that there already is a place that is known as the Bangkok of the Northern Hemisphere. Its called Bangkok!
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A German boards an aircraft in Munich and he is a kraut which is a vegetable (cabbage). He disembarks in Bangkok and he is a farang which is a fruit. At what stage on the journey does this metamorphosis take place?
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I have not posted on TV for a long time but since this is a subject which I have researched I will throw in my twopenceworth.
1. Rule no. 1. Measure what is being said against who is saying it.
a. "doom and gloom" merchants full of bar-stool wisdom who probably don't have enough money to buy their next beer, never mind a property in Thailand. (Wait for the attacks on this post and start to identify them or check out posts 12 months ago from those who are silent now).
b. Those with a vested interest trying to sell you an alternative (including lawyers and quasi lawyers - TIT).
c. Politicians or those quoting politicians. What is politically correct to say and what is economically and legally viable may be in conflict. (i) "All the land in Thailand belongs to the Thais". Politically correct to say. (ii)"We want foreign income for real estate transactions" Economically expedient. Policy: talk (i) but do (ii). If you have followed the farce about revisions to the Foreign Business Act over the past 2 years or so you will understand this. Result: status quo.
2. Rule no. 2. Understand the law.
a. There is no such thing as a "bogus" company. A company is a legal entity and comes into being when the appropriate authority issues a Certificate of Incorporation. A Thai company is a legal entity and it is Thai. It is legally a "person" and its "personality" is quite distinct from that of its directors and shareholders. To undermine this principle for the sake of some land grab intentions would make Thailand a pariah state in the international business community. It is never going to happen as long as the average IQ of government ministers exceeds 50. (Please do not confuse any enquiry by the Commercial Office into the source of funds by shareholders as being relevant to this issue. Yes, they can refuse to register a company if {rightly or wrongly} they consider it appropriate to do so. This has no bearing on the status or legality of existing companies. Also please don't confuse "business" with "company" - they are two very distinct concepts.
Secondly, there is no law in Thailand or in any other country that I am aware of that says shares cannot be given as a gift. Also, a company is not funded by shares alone. There is no obstacle to loan finance even from a farang (see ealier posts - one of the more meaningful ones). As far as I am aware the authorised share capital of a Thai company is B1m. This is what the commercial office can investigate in terms of source of funds. 7 shareholders are required and Thai shareholding must be 51%, = B510,000. B510,000 divided by 6 Thai shareholders = B85,000. Big deal? (maybe to the bar-stool wise guys).
3. Rule no 3. Watch what you say.
I can not stress this too much. Farangs DO NOT own land in Thailand. It is legally impossible except in very specifically authorised circumstances. Get this one into your head an everything else falls into place!!! If a company owns the land the company owns the land. End of story.
4. Yes, the company should trade and pay appropriate taxes - but even that is a separate issue. By leasing the land to a farang and providing maintenance services the company is trading.
5. Get the company to lease the land to you and register the lease.
6. A farang can legally register any structure (house) on the land in his name. (i.e. ownership).
7. Do the maths.
Value of land: say, B5m
Value of building, say B5m
What do you own?
NOT THE LAND!!!!
house B5,000,000
49% of company's assets (ie. (hopefully, appreciating) value of the land - N.B. that is
money's worth represented by shares - not the land per se) B2,450,000
30 year lease - this effectively secures your interest in the Thai "ownership" element of
the company's asset (land) for the next 30 years (the 51%) = 2,550,000. Equivalent to
a cost of B85,000 per year. B2,550,000 (for 30 years right)
(if 90 years this is B27,777p.a.)
Right to repayment of any loan you extended to the Thai company to buy the land.
(plus interest if you have structured it right)
What do the Thai sharholder's own?
Not the house.
Not the rights under the lease for th next 30/90 years.
51% of a company with a debt of B5,000,000 + annual interest = -B255,000, and a reversionary interest in land that is legally leased out for the next 30/90 years.
The upside? They may own 51% of the value of the land (less the value of the loan finance + interest) in 30/90 years time. (possibly not too bad a deal if they did not pay for their shares, but should you worry about it? Up to Yoooou! GIVE them the shares - there is no need for "nominees".
8. Would all the Thai lawyers who have advised and set up companies for farangs to enjoy the benefits of land in Thailand (N.B. not "OWN") be immune from any backlash if the government were, perversely, to claim that land was acually "owned" by farangs. They would all be liable for negligence and would be more culpable under the law than any farang. Ask yourself, is this likely to happen? Have they all got it wrong or do they know the actual risks?
As someone in an earlier post said if you want to worry about it go ahead! If you want to think rationally. This is still possible in Thailand - although, strictly under the law, you should have a work permit for indulging in that activity (true, check it out) then don't worry.
To answer the OP's question: "How dangerous is it to own property with a company?" Answer: You cannot. See above.
Edited to correct typos and for clarity.
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Only from my own observation I can tell you that part of the "land" acquired for the project was a fishfarm. I understood that this was where the marina was to be built (very sheltered) but the marina berths have actually been built outside that area and are very exposed.
The "fish farm" is currently being filled and turned into land so I would expect some construction on that "land" when that work is complete.
I have a very old map of Phuket which shows that the fish farm area was at one time open to the sea and was in fact a small bay. So what was sea is to become land! I leave you to ponder that one.
What is your interest? Sailing or other?
Feel free to PM me.
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A number of posters have raised the question "what did the girl see in this Onionman guy?".
A little research often helps explain such matters.
The following extracted snippets are from http://dictionary.reference.com/browse/onion :
1) Onions were prescribed by doctors in the early 1500s to help with infertility in women
2) The onion is easily propagated.
3) Onions may be especially beneficial for women.
And a warning:
4) A way to avoid irritation is by not cutting off the root of the onion, ............or by doing it last !!!! Take care with the repeat visits, Onionman.
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Morale of this story, as we say in the Uk - "If you can't be good, be careful!!"
Wear a rubber!Better still, get a rubber doll - no emotional attachments !!
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Are they animal skulls or is my eyesight weak?
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The OP accuses the girl of deceiving him, but who has been deceiving who here?
It seems to me that the OP has been deceiving himself and is continuing to do so.
The girl worked as an unpaid slave for him, provided him with free sex on a weekend basis and because he was "honest" (read hurtful) about his other relationships he thinks that she accepted and agreed with that when it should have been obvious that what the girl wanted was him!!! He is either deceiving himself that he did not know that to be the reality or he is exactly the insensitive pr*ck that he comes across as.
He is now deceiving himself that the same girl who only benefited from "street food" from him is now suddenly after his money and he needs "legal" advice??? People on TV are accepting that as a given!!!
Yes she was sweet, sweet enough to put up with his use and abuse of her in the hope that he would give her some commitment and now she has resorted to desperate measures by either actually getting pregnant or pretending that she is (my guess is the latter).
He says she is not a whore and I tend to believe him but he has used her as if she was and has deceived himself about the reality.
She is now a psycho because she has (admittedly, wrongly) resorted to the only weapon in her armoury.
A little introspection and understanding on his part would go a long way, but can he muster it? not a chance.
Its as clear as a pikestaff that the girl does not want a baby she wants him! It looks like she is also wiseing up when she has found his reaction.
For a guy who supposedly has so many relationships with different women he displays a remarkable failure to understand them.
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I'd like to start trusts for my 2 daughters. I haven't a clue how to do it, can anyone help?
Not much just about 5-10,000 baht a month until they are 18 or 21.
There was a similar question posted a while back and I still chuckle at the first reply - "There is no trust in Thailand". I don't know if the poster was being deliberately funny or meant to say "There is no Trust Law in Thailand". The latter statement is certainly true and it often seems that the former is also.
I don't know if anyone has come up with any "work-around" this problem. For example, it occurs to me that it might be possible to put an interest in Thai assets (including land?) in a trust fund registered in, say, the Channel Islands. Lets say a farang married to a Thai puts assets in trust with a child as beneficiary and the child's Thai mother as an administrator of the trust for the benefit of the child. Say land was registered in the mother's name but was held in trust for the benefit of the Thai child. Any ideas as to how a Thai Court would regard such an arrangement?
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Anyone who is seriously interested in these issues should read two books:
"The God Delusion" by Richard Dawkins and
"The End of Faith" by Sam Harris.
Also recommended for "believers" to test their belief.
Nobody's debating the merits of religion here. Your argument is for another time, and another topic.
Nor am I debating the merits of religion. I am drawing attention to the availability of two books, particularly that of Richard Dawkins, which deals in some detail with the question posed by the OP as to "why the special treatment" accorded to religious groups.
What, plese, precisly was my "argument" to which you are referring? I don't recall having taken any position in my post.
Presumably you have read both books from cover to cover and decided that they are totally irrelevant to the OP's question or you believe that such questions are deserving of only superficial answers!
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Anyone who is seriously interested in these issues should read two books:
"The God Delusion" by Richard Dawkins and
"The End of Faith" by Sam Harris.
Also recommended for "believers" to test their belief.
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The girl blogger said out loud that the couple were basically an eyesore. You don't have to be rich to think that...just as many lower class Thais and farangs would have thought the same.
But you personally have to be pretty crass to publish it.
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Most women in most countries look down on prostitutes, especially if their "profession" is too obvious. Would this girl in Emporium have dressed decently, nobody would have taken exception. But she is what she is and doesn't know any better.
So was the boutique she was in selling two different styles of clothes one style for "most women" and another style for prostitutes?
Does no one detect an element of jealousy on the part of the author and perhaps a teeny little bit of exageration? Did the encounter really happen or did she just dream it up?
The author reminds me of a very true observation; "If you think you have class, you don't".
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But do they owe their clients a 'duty of care' under Thai law?
Or better still, do they owe a duty of care as a 'right-thinking' person? I always liked that one - "Right-Thinking"..
How would you ever define that one here?
That has to be the easiest question of the week TG.
Thinking with the right side of the brain.
The side that doesn't employ logic.
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I once heard a very funny skit about confusion at immigration between the word Canadian and comedian. But I guess as a lawyer you have immunity from being a comedian.
(just joking)
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AMAZING THAILAND
A German boards a plane in Europe and he is a Kraut which is a vegetable.
When he disembarks in Thailand he is a farang which is a fruit.
What is he during the flight? Some sort of hybrid?
Answers on a postcard please to the Royal Horticultural Society.
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Hi, im wanting to know if anyone knows of a hotel in bangkok next to the english embassy?
Ive heard there is one right next to the embassy, if so does anyone know the name of it?
Or if not, does anyone know of a hotel closest to the english embassy?
Thanks all....
Scotty...
I don't know the name of the hotel, but I do know the name of the embassy. It's called the "BRITISH" Embassy.
And you call yourself Scotty???
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I'm absolutely amazed at how quickly members of this forum are prepared to condemn others and even invoke illegal practices themselves in doing so without the slightest enquiry as to the circumstances.
Where in all the earlier posts does it say that the fire was started deliberately?
What on earth is Sunbelt's motive in posting this?
Sunbelt is a law firm? Huh!!
The only post I can agree with on here is that of Khun Jean who, as it happens, I have crossed swords with on another issue.
Has no one else got any sense of justice or proportion.
Go hang your heads in shame.
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But do they owe their clients a 'duty of care' under Thai law?
Section 420 of the Civil and Commercial Code states that "A person who wilfully or negligently, unlawfully injures the life, body, liberty, property or any right of another is liable to make compensation". This is probably as near as you will get in Thailand to a law of Tort.
If you acept that lawyers are inclded in the description "persons" then I guess this answers your question.
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Nominees don't have to be mentioned in the law because its meaning and intent is clear.
Lets look it up in a dictionary.
nom·i·nee
1) One who has been nominated to an office or for a candidacy.
2) A person or organization in whose name a security is registered though true ownership is held by another party.
I suggest we skip the meaning number 1 and concentrate on number 2.
When you use nominees it is assumed the one who uses them is the real owner. So if you have 49% foreign and 51% Thai are nominees. Then actually for the law (who knows about the dictionary too) it is 100% foreign ownership. And that is not allowed.
If you want to circumvent that too, you would need to find Thais that have enough money to invest in the business too, or somehow make them earn money before by giving them a job or some other creative way to obscure the truth.
Now lets look up the word naive. (Not personaly to posters but for the many people who believes a lawyer.)
I think it is good to discuss these issues.
Khun Jean,
I agree that it is naive to take the word of lawyers here on its face value which is why I am trying to gain an understanding of what the law actually is. That is easier said than done in Thailand. Most of the "nominee" issue that has come under scrutiny by the government has been in relation to the Foreign Business Act. I am quite convinced from studying that Act that it has no application to the ownership of land unless a farang is conducting a prohibited business of "trading in land". The Land Code defines trading in land as "the aquisition and disposal of land for commercial profit by sale exchange or conditional sale". In other words "operating a business".
For the ownership of land by a Thai company it is definitely wise not to have nominees involved, but given the historical situation persons in the position you described earlier need to have as detailed an understanding as possible as to how the law should be interpreted. If it ever came to farangs being directly targeted over the company land ownership issue then I would suggest that rather than try to sue your Thai lawyer you should be on the same side as him to put up a reasoned argument and fight that together.
The scenario I described earlier has Thai shareholders who are not nominees and as far as I can see that is perfectly legal. The problem may come if the Thai government define "alien" in terms of control of a business but this has not happened yet.
I know this thread is about lease and lease renewal but the logic of control of the company is to ensure future renewals of the lease granted by the company to the farang. As long as that can be achieved through the decision making power in relation to the company it matters very little who actually "owns" the company. Also the company does not die and as long as control is maintained it will not sell the freehold.
I'm certainly not advocating this for anyone getting into the market now but whether anyone with a company should rush into a change to leasehold is questionable. The land still has to be owned by someone and it is a judgment call whether to stick with the grey area company setup or put the ownership in the hands of an individual. What are you going to trust?
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Point 'D' i dont agree with.
Using nominies in any company is illegal. It escapes because enforcement is not 100%, more like 1%.
Khun Jean,
This is often said but never substantiated. Can you quote the law on this? I have researched every way I can find possible and cannot find where it says what you claim.
There is no reference to nominee shareholders anywhere in Thai law that I have been able to discover.
The FBA is about operating businesses. Not about company structures. There is a difference (perhaps too subtle for some) between a "business" and a "company". A company is a legal entity and a business is the activity conducted by it. A company registered in Thailand will always be a Thai legal entity (by virtue of its registration) whoever its shareholders are. If it operates a prohibited business and it is owned either transparently (if that is possible) or through "nominees" more than 49% by foreigners then the individuals are in breach of the existing FBA, but the wrongdoing is in the foreigners "operating the business" not in using nominees per se and not simply for owning the company.
If you can find something in Thai law that says different then I am willing to be persuaded.
I am not persuaded just because samuiforsale says so. Some of the material on their website is very useful but their interpretation is not exactly spot on.
The trouble with all of these sources (law firms included) is that they have vested interests in what they want you to believe.
Just keep asking them as I do to produce the legal references that they are relying upon.
If I had more time I would detail my view complete with legal references, because I am prepared to substantiate my understanding. I am more than willing to listen (and perhaps accept) a different viewpoint but not if it is not supported by legal references.
I think it is in the interest of many farangs to have as full and accurate an understanding of this as possible. The lawyers on the forum have been spectacularly reticent about providing this. Samuiforsale goes some way towards this but I am uncomfortable with their interpretation and it looks to me that they have a hidden agenda somewhere.
I notice that Siam Legal who started this thread have also not bitten the bullet to clarify exactly what the law is AT PRESENT.
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Easy.
There are two names on the contract that matter. The one who took the lease and the landowner.
After 30 years when the contract can't be renewed, who do you think will have the problem?
The lawyer for giving wrong advice 30 years ago?
If i had a lease with this 30+ construction adviced by a lawyer, i would stand in the front of his office tomorrow demanding a hefty compensation for his wrong advice. While it is still recent you might have a microscopic change you wil win. I'll bet it wil take a few years before a court decision is made.
Second. If you still think a company formed for the purpose of owning land is legal you have some reading up to do.
Here i am mean the large number of company formations that used nominies. Those are illegal and always were.
In Thailand the law is a law of its own kind. It is better to abide by it to stand a change. If you start bending it, good luck is what you need. Until recent people who did the company thing made a good profit. It worked because it had a quick turnover and it went unnoticed. Those people were the lucky ones. The ones who own it now with a company construction are not sleeping very well.
Bar stools are not comfortable so I never sit on them.
Khun Jean,
You made a general statement about the liability of lawyers in Thailand for wrongful advice. I was prepared to learn something new but it turns out that it was your statement that was reckless as you now contradict it by saying you would pursue compensation. It looks like it is you who needs to do some reading up or rather, I suspect, change your reading material. Unfortunately TV is full of ill-informed opinion and that is at its worst when it is stated as fact. There is a vast difference between saying that any attempt to sue a Thai lawyer for negligence could be a tough task which, depending upon the circumstances may or may not be so (so that is a matter of opinion but not a well founded one) and stating as fact that they cannot be held responsible.
Your understanding of the company land ownership issue also seems somewhat "wooly" to me but you are forgiven for that because nobody seems to be quite sure and, if you have been following the news reports, you will know that the politicians have been unable to agree on how the law should be amended to make it more certain. This is the point I was making. It has been, and remains, a grey area. As a matter of prudence anyone entering the market now may be advised to avoid it, but that does not address the situation that many people have been in over the years and glib statements do not help.
I would be very interested in Rick Levinthal the OP's take on this as he is a licensed American attorney working as an advisor to Siam International Legal Group. I tried a long time ago to get a reasoned response from Sunbelt but met with silence (again perhaps a reflection that no-one knows for certain, not even the lawyers, otherwise they would be being sued which was the second point I made).
Here is my understanding of the legal reality aquired from some very substantial reading on the matter, where possible from primary source material:
a)There is absolutely no obstacle to a Thai company owning land in Thailand per se.
B)A Thai company cannot be owned more than 49% by foreigners.
c)Ergo there is no obstacle to a Thai company owned up to 49% by a farang owning land. (Now, before you jump on me I know that the Land Office has been instructed to enquire into the source of shareholding funds etc. and also report to BKK if a company aquiring land is owned more than 39% by foreigners) but that is administrative direction and whilst it affects the practicalities it does not change the existing law on which the validity of the corporate ownership issue must be judged (especially in the circumstances you envisaged in taking a neglignce action against a Thai lawyer).
d)The nominee shareholder issue relates to the Foreign Business Act which is only about what type of business can be "operated" (word straight from the Act) by farangs. One of the prohibited businesses is "dealing in land". So if you operate a business whose business activity is dealing in land the Act provides penaties for any Thai who fronts for a farang and could you fall foul of the "nominee shareholder" issue (although these words are never used in the Act).
e)The FBA clearly states that these provisions are "for the purposes of" the FBA and don't therefore apply outside that Act. Unless a farang is operating a business which deals in land and using Thais to disguise his ownership the FBA has no application to the ownership, per se, of land by a Thai company.
OK So far?
f)So we have a Thai company which owns land. There is a house on the land which is owned by a farang. The Thai company has leased the land to the farang on a renewable 30 year lease. Nothing wrong with that per se.
g)The company is owned 49% by a farang and is structured so that he has "control" of the company's decision making process as distinct from "ownership" of the remaining 51% of the shares. (The main objective in this is to ensure that the lease is renewed at the end of the 30 year period). (Yes I know that some politicians would like to change the law to include control but they have not, so far got their way and if you are thinking about suing a Thai lawyer its the existing law that matters not what it may be in the future.)
h)The concept of the holding company, per se, does not exist in Thailand, so the company has to trade. It employs a housekeeper, gardner etc. and provides these services. It makes a small profit and a small dividend is distributed to its shareholdes (both farang and Thai).
This has all been established on the advice of a Thai lawyer.
Please explain to me, Khun Jean, the basis of your demand for hefty compensation?
Wear a rubber!
Issues For Nominees Buying Land For Foreign Owners
in Real Estate, Housing, House and Land Ownership
Posted
I know that this is Thailand and anything can happen but I think that the nominee situation is a hands-off for any Thai government for two reasons.
First it is not part of the land code. The relevant legal provision is contained in the Foreign Business Act which regulates the types of "business" in which a foreigner may engage in Thailand. If you read the FBA carefully you will see that the "nominee" provision (the word is not actually used) is for the purposes of that act an therefore does not extend beyond the FBA. This is normal in legal drafting to define the extent of any particular provision.
Secondly the word business is not synonymous with the word company. A company is a separate legal entity from its directors and shareholders. If the land is owned by a company it is owned by a company - end of story. If it is owned by a duly registered Thai company the ownership is legal and it is Thai ownership.
Any attempt to define it otherwise would cause huge problems for the concept of limited liability in Thailand and the country would then be out of step with commercial practice throughout the world.
The "nominee" pitfall is often quoted but as it stands it is probably unenforceable in relation to land ownership by a Thai company. Why else would so many Thai lawyers expose themselves to complicity in that by creating such structures.