Question on Lease/Ownership

[Riviera 3]

I am thinking of buying a little place on Phuket with my Thai wife for holidays and ultimately retirement. We have put up with each other for a decade so are probably good for a few more. However, I want to put something in place that would protect us both if anything went wrong with the marriage.

 

The proposal on the table is that the land goes under her name, the house under my name and she leases the land to me under a 30-year agreement (or 99 years if it ever happens in Thailand).

 

What do you think, Is it viable?

 

Thanks

[EricTh 1,367]

Yes, it is quite viable.

 

Put an additional clause in the contract that she can't sell the land to another person without your consent.

 

She is technically the owner and can still sell the land even if there is a lease on it.

 

Once the land has a new owner, the old lease might not be effective anymore.... I guess but this needs to be confirmed.

Edited December 3, 2019 by EricTh

[blackcab 3,878]

You might be better considering a usufruct for life.

 

Your wife can always sell the land, but with a usufruct on the land then it is unlikely anyone would pay much for it.

 

Even if the land was sold, your usufruct would remain intact.

 

If you die before your wife then your usufruct would be extinguished and she would be able to remove the usufruct and sell the land free of encumbrance.

[Delight 362]

The OP thinks that with the house in his name then he  obtains some protection.

Is that the case?

[Langsuan Man 4,751]

10 hours ago, Delight said:

The OP thinks that with the house in his name then he  obtains some protection.

Is that the case?

No, best he can do is a 30 year lease, anything longer is not legal in Thailand.  As stated by one poster a usefruct is the best option for the OP, since it will still allow him to remain in the house upon her death and not have to worry about pesky family heirs on her side 

 

But no matter what option the OP chooses he must be aware that you may have to right to occupy the house on the land but that doesn't mean that the Thais can't make your life miserable as you enforce those rights  

 

And to make it more disturbing there are some Land Offices that will not allow a husband / wife usefruct 

Edited December 4, 2019 by Langsuan Man

[GreasyFingers 970]

Also have your wife make a will that leaves the land to you in the case of her death. Good if you can register it at the local Amphoe.

[ThomasThBKK 3,839]

2 hours ago, Langsuan Man said:

And to make it more disturbing there are some Land Offices that will not allow a husband / wife usefruct 

 

They are useless anyway, as every contract between wife and husband.

 

Thats why you do this:

 

You make a USUFRUCT with the CURRENT OWNER, THE SELLER, between the seller and the husband, and only AFTER THAT IS DONE you transfer the land to wifey or company.

[Riviera 3]

Thanks everyone. I have heard of usefructs but never actually heard of anyone using one or any agent recommending one. Anyway, I will check them out. There must be some lawyers who can help.

[Skallywag 2,341]

13 minutes ago, Riviera said:

Thanks everyone. I have heard of usefructs but never actually heard of anyone using one or any agent recommending one. Anyway, I will check them out. There must be some lawyers who can help.

From what I have read in my short time here on the forum and in Thailand, best to rent not buy.

You realize if you are deported or cannot renew your visa extension, you are SOL (sh!t out of luck)

Nice to own if you have Thai children you want to leave an asset to, but other than that maybe not worth the risk of owning a house in Thailand as a foreigner.  

Something to consider

 

Edited December 4, 2019 by Skallywag

[CH1961 307]

55 minutes ago, Skallywag said:

... in Thailand, best to rent not buy.

Correct. 

With kind regards, your Landlord

[DJ54 665]

Maybe think about a condo? 

[khunPer 4,471]

On 12/3/2019 at 8:02 AM, Riviera said:

What do you think, Is it viable?

From what I know (I'm owner of a house in Thailand):

 

Be careful with agreements between husband and wife, it's often mentioned in posts in this forum, that in case of divorce, any agreement between husband and wife can be void. Your need professional advice from en experienced law firm dealing with foreign property "ownership".

 

A lease agreement in Thailand is 30 years, not more, and there is no option for an additional period to be included in a lease agreement; some has mentioned that the leased agreement can be void in that case, whilst others state that no matter what longer period is mentioned, the lease period will be reduced to 30 years from the given starting date. There is no such option as 99-years.

 

Any lease agreement lasting more than 3 years shall be registered at a land office, otherwise it's void. When registering the lease a small tax is going to be paid for the whole lease term, i.e. a tax of up to all 30-years annual leasing fees. I think the tax still is around 1 percent. I don't think it's possible to make a lease agreement without any fees, perhaps some other posters have experience about that.

 

A foreigner can own a house, but not the land under the house – excluded however is if you are staying on an investor visa, and have invested something like 40 million bath – in that case any buildings need to be registered separated from the land, if taking over an existing house. 

 

If you build a new house and wish to be owner, you need the following (I talk from experience):

• Permission from the land owner, preferably a so-called superficies agreement.
• Architect drawings shall be issued in the name of the coming house owner (you).
• Building permission shall be applied for in the name of the house owner (NOT the land owner).
• Keep the building permission, and the enclosed copy of stamped architect drawings, all in the name of the house owner, it's proof of house ownership.
• Any building constructor(s) contract(s) shall be issued in the name of the house owner.
• All (major) bills for construction and materials shall be in the name of the house owner.
• All money transfers shall originate from the house owner, or receipts for cash payments shall be issued in the name of the house owner.
• You will not be able to register a new build house in the Land Office, above documents are your proof of ownership so keep them safe; however when re-selling the house it can be registered separated from the land.
• When a Blue House Book is issued you can have your name stated as "Master of House" – even you are a foreigner – so only you as house-master can decide who can be included in the Blue House Book; it's however no proof of ownership for the property.
• Foreigners living in the house will be listed in a Yellow House Book for aliens, that is where your name might be listed – the process vary from (very) easy to complicated, the latter where I live – except if you have permanent residency, then it should be the Blue House Book, according to earlier post in Thaivisa forum.

My lawyer mentioned that for protection, if a foreigner pays for land, you can make a loan agreement, and have it declared by servitude on the land title deed in a land office, just like a mortgage is declared as servitude. The land cannot be sold or transferred without the loan, and eventually interest, has been fully paid.

 

Usufruct are often mentioned, but again be aware of rules for husband-wife agreements. Some land offices will not register a usufruct in the name of a foreigner.

 

To protect both parties a Thai last will for each would be recommendable, as if there is no will, then Thai Law will be valid for order of inheritance.

 

Wish you good luck...

Edited December 4, 2019 by khunPer

[ThomasThBKK 3,839]

10 minutes ago, khunPer said:

Building permission shall be applied for in the name of the house owner (NOT the land owner).

Yes, but also important to note that those can be changed till the house is complete, so in theory to make things easier these can be issued to a projectmanager/builder/landowner etc and then later transfered in your name. This makes it often easier, as stuff like applying for electrical supply etc need the building permit and the chanote, so it's easier the gf/wife does it.

[khunPer 4,471]

2 minutes ago, ThomasThBKK said:

Yes, but also important to note that those can be changed till the house is complete, so in theory to make things easier these can be issued to a projectmanager/builder/landowner etc and then later transfered in your name. This makes it often easier, as stuff like applying for electrical supply etc need the building permit and the chanote, so it's easier the gf/wife does it.

Thanks.

 

You might be right, but I've heard the opposite, and have been warned against it.

 

However when you buy a house, or have it transferred to your name from a constructor or project, you can – as I mentioned in my above post – have the building(s) ownership registered separated from the land.

 

I would recommend to consult an experienced law firm before having anything issued to a third party, including Thai girlfriend or wife. The architect, or building constructor, can easily have the building permission issued in the coming house owner's name by power of attorney.

 

One can also easily obtain electric supply for the construction period – there are special terms and rates for that – a Blue House Book, which is for the house, can normally be issued when a construction is 80 percent finished. Having a Blue House Book, one can obtain permanent electric supply.