Jump to content
BANGKOK

Archived

This topic is now archived and is closed to further replies.

webfact

Phuket court rules 'secured' or 'collective' leases are void

Recommended Posts

So, a condo complex is just 51% Thai-owned, as the law requires. One of the Thai owners decides he wants to sell his unit, and finds a foreign buyer. He's not going to be able to complete the sale? Who stops him? Just curious.

The Land Office.

It will not allow such a sale to proceed.

Share this post


Link to post
Share on other sites

The point is the loop hole people have been using to buy via the company route is not safe. It was never intended for people to buy a residential property.

And yet in a recent court case I was involved in in Phuket the Judge said that the lease that was fraudulently cancelled was not of any consequence and if I wanted to I should have bought the residential house in teh name of a company. The reality is no one knows the law here because the law is all at the discretion of the judge who is free to dream up any excuse they want to ensure foreigners lose their cases.

Share this post


Link to post
Share on other sites

If the OP is correct in its analysis of the case the. The judgement is flawed. There are two elements involved, the 30 year lease of the apartment which is registered and the purchase of a minority shareholding in the company that holds the land in order to ensure the civil contract to renew the leases is honoured. There is nothing written in Thai law that says a lease can't be renewed - it simply is not in the law one way or another.

The judgement says that the intent is to buy the land which makes the purchase of shares void. That is flawed if the facts are correctly reported since the intent has been said to be to ensure the renewal of the term of the lease on expiry or n other words to uphold a contractual arrangement between two parties. The court has somehow morphed that contractual arrangement into an illegal intent to purchase land. It fails because an arrangement to renew a lease is not an arrangement to buy land to any average person.

Then the court goes on to meld the original lease not this idea which is a second erroneous step since the intent to lease was genuine and separate from the contractual arrangement to hold shares in the company issuing the lease.

The most worrying thing is that neither party to the case eased the issues the court raised. This decision was reached on the whim of the judge taking his own evidence which would have you struck from as a judge in any advanced Justice system. Here it happens with regularity and there is not even the excuse that it is needed to establish the law since there is no binding precedent in Thai law. The court sits to decide the issues put before it and raised between two parties to a contract in civil law. It does not sit to write its own interpretation of the law on issues neither side raised and neither side has had any opportunity to present arguments for and against. This flues in the. Dave of Justice because the parties have no opportunity to defend themselves against the thinking of a judge. That is why foreigners continually lose cases in Thailand since judges are people selected from society who have the same prejudices and attitudes which are left to run rampant through the Justice system unfettered by the law that allows judges to make arbitrary decisions on points of law and issues not even raised by the parties which makes a mockery of the system.

It highlights that the normal and basic principles of law are simply not understood in the Western sense or that Thais have a completely different concept of the basics of law which revolve around making sure the Thais always win. It is strange nearly all these cases involve illegal money lenders who abuse the Sake with Right of Redemption laws to practice their illegal trade with the blessing of Thailand's judges despite the laws criminalizing the activity. Since they are the ones profiting and the ones who gave all the money be can put two and two together to see why they seem to always win.

Sent from my iPad using Tapatalk

Share this post


Link to post
Share on other sites

@ FBlue72

I'm definately not trolling, and not Thai bashing.

Thai law clearly states a foreigner can not own land in Thailand. I am not bashing them for that law, although if I was to be critical, I would say it doesn't do much for attracting foreign investment here.

I would suggest Thailand should allow residential ownership of land, but not industrial, commercial and agricultural land. Or, perhaps, Government guaranteed 100 year leases on residential land. Anyway, back to your post.

"I would trust a Thai lawyer who is licensed to practice over a foreigner who is working illegally." - Thai lawyers were involved in two recent high profile cases where signatures were forged and property stolen. They can not be trusted.

"And at "best ", a foreigner can own a condo for the rest of their natural life." - no, "at best" the condo owner has use of the land their condo sits on, for 30 years.

"I agree, a foreigner can not own land." - I'm glad we cleared that up. Now, about these condo's that float in mid air. smile.png

Ok, so we agree foreigners can not own land in Thailand, however, you then state, "But YES they CAN own condos within buildings that are structured correctly- as already explained must be 51% Thai owners of the units within the building."

Can you not see the "issue" with this? Houses, condo's, shops, land etc are, in general, immovable objects. Once the 30 years use of the land expires, what guarantee do you have of a simple stroke of a pen giving you another 30 years use of the land your property sits on. Not to mention, how would the individual foreign condo owner know what the hell the Thai owners of the condo block are doing?

"Please provide a link to back your claim foreigners can not own condos" - a foreign can own the physical bricks, mortar, tiles, paint, electric wires etc etc - all the things a house / condo is made out of - the problem is, when these building materials are used in construction, the building then sits on Thai owned land, and as it's an immovable object, you leave yourself exposed.

"The topic is about 30 year leases and the ability to extend them which I have also stated are not valid." - correct. It's been held that the "x 30 years x 30 years" is illegal, and therefore "voids" the WHOLE lease, including the initial 30 years. I agree the 60 years is illegal, but in my opinion, to void the initial 30 year lease is harsh.

Unless you have Thai blood running through your veins, you can not own land in Thailand. There is no getting around this point. You even said it yourself.

Pieces of paper that create the illusion that you can, are just that, pieces of paper, and are worth nothing in the legal process here.

Phuket boomed in the 80's. In the near future, some of these land leases will be expiring - that's land on which a foreigner built a house / condo on. It will be interesting to see what will happen.

Share this post


Link to post
Share on other sites

So, a condo complex is just 51% Thai-owned, as the law requires. One of the Thai owners decides he wants to sell his unit, and finds a foreign buyer. He's not going to be able to complete the sale? Who stops him? Just curious.

The Land Office.

It will not allow such a sale to proceed.

And let us hope all such offices will uphold the law. However this could be a whole 'nother can 'o' worms if the Thai ownership is allowed to fall under 51% through underhanded dealings- could whole blocks of foreigners within condo buildings see their ownership challenged under such a nightmare scenario?

Share this post


Link to post
Share on other sites

@ FBlue72

I'm definately not trolling, and not Thai bashing.

Thai law clearly states a foreigner can not own land in Thailand. I am not bashing them for that law, although if I was to be critical, I would say it doesn't do much for attracting foreign investment here.

I would suggest Thailand should allow residential ownership of land, but not industrial, commercial and agricultural land. Or, perhaps, Government guaranteed 100 year leases on residential land. Anyway, back to your post.

"I would trust a Thai lawyer who is licensed to practice over a foreigner who is working illegally." - Thai lawyers were involved in two recent high profile cases where signatures were forged and property stolen. They can not be trusted.

"And at "best ", a foreigner can own a condo for the rest of their natural life." - no, "at best" the condo owner has use of the land their condo sits on, for 30 years.

"I agree, a foreigner can not own land." - I'm glad we cleared that up. Now, about these condo's that float in mid air. smile.png

Ok, so we agree foreigners can not own land in Thailand, however, you then state, "But YES they CAN own condos within buildings that are structured correctly- as already explained must be 51% Thai owners of the units within the building."

Can you not see the "issue" with this? Houses, condo's, shops, land etc are, in general, immovable objects. Once the 30 years use of the land expires, what guarantee do you have of a simple stroke of a pen giving you another 30 years use of the land your property sits on. Not to mention, how would the individual foreign condo owner know what the hell the Thai owners of the condo block are doing?

"Please provide a link to back your claim foreigners can not own condos" - a foreign can own the physical bricks, mortar, tiles, paint, electric wires etc etc - all the things a house / condo is made out of - the problem is, when these building materials are used in construction, the building then sits on Thai owned land, and as it's an immovable object, you leave yourself exposed.

"The topic is about 30 year leases and the ability to extend them which I have also stated are not valid." - correct. It's been held that the "x 30 years x 30 years" is illegal, and therefore "voids" the WHOLE lease, including the initial 30 years. I agree the 60 years is illegal, but in my opinion, to void the initial 30 year lease is harsh.

Unless you have Thai blood running through your veins, you can not own land in Thailand. There is no getting around this point. You even said it yourself.

Pieces of paper that create the illusion that you can, are just that, pieces of paper, and are worth nothing in the legal process here.

Phuket boomed in the 80's. In the near future, some of these land leases will be expiring - that's land on which a foreigner built a house / condo on. It will be interesting to see what will happen.

Ok, so we agree foreigners can not own land in Thailand, however, you then state, "But YES they CAN own condos within buildings that are structured correctly- as already explained must be 51% Thai owners of the units within the building.".... Not to mention, how would the individual foreign condo owner know what the hell the Thai owners of the condo block are doing?

As mentioned in posts above, the land office is responsible for making sure the 51% is held. And so far, my proposed scenario has not happened so condo units do seem to be just about the only safe property investment for foreigners.

Condo buildings with foreign ownership are corporate entities and the foreigners own shares in the entity. It's no different than any other corporatized business. The entity owns the land which the building sits The condos are " shares" which is why you better make damn sure the corporation is structured properly and the land is already paid for and under full title to the entity.

Can you not see the "issue" with this? Houses, condo's, shops, land etc are, in general, immovable objects. Once the 30 years use of the land expires, what guarantee do you have of a simple stroke of a pen giving you another 30 years use of the land your property sits on. ....

I see the issue of 30 year "plus extensions" being a problem quite clearly- have so for years, and have already stated so numerous times- you seem to not be reading my posts correctly and it seems to be deliberate.

I will add a concession to your point- even a perfectly legal 30 year lease is a bit of a risk if the property owner dies, the heirs may be able to void any such lease.

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 members

    No registered users viewing this page.

×
×
  • Create New...