- brian ramsden
Usufruct v Superficies
Building your own home in Thailand has many challenges.
Protecting your investment and home is of the highest importance because if you do not protect your investment you could be throwing away your home, security and future.
Lawyers for Expats Thailand provide legal solutions to ensure that your future is secured.
Do not circumnavigate the law because it can have dire consequences which we have seen time and time again.
Foreigners cannot legally own land or landed property in their own name.
There is a legal solution that will cater for you that is safe and secure.
This is Thailand and anything can happen so prepare for every eventuality.
We use both agreements depending on the situation as part of a complete solution to cover all eventualities which I will talk about on a later blog we do not ever use these these on their own but as part of a solution to cover every eventuality.
Today we are talking about the Usufruct v Superficies agreement.
A Usufruct is an agreement that gives the temporary transfer of ownership from one person to another of a property.
It is registered at the land office.
Each land office has different rules a common practice is to only allow married foreigners to have a Usufruct and those in a relationship to have a Superficies agreement.
It is common practice for the land office to refuse either until after 3-6 months after the transfer of the land.
Section 1418 of the civil and commercial code states the usufruct can made for as long as the usufructuary is alive.
We use this agreement when a house is already built on a piece of land.
It also allows for the usufructuary to benefit from rental income from the property as it can be written to allow the usufructuary to sub let but the usufruct agreement does not change .
By having a usufruct agreement it prohibits any loan or mortgage being attached to the property and the usufructuary name is registered on the back of the land title deed.
It also prevents the sale of the property during the term of the Usufruct.
It is a very useful and safe way to protect your home as it gives you the right of habitation.
On the death of the usufructuary the usufruct ends.
Ensure the usufruct shows that the Usufructuary has paid the total amount in full for the whole term as this can be a way to cancel the Usufruct.
A Usufruct cannot be transferred in death and all rights of the usufruct cannot be inherited.
The usufruct and superficies agreement are not 100 per cent safe on their own as we have seen cases and have fought cases where fraud has taken place to change the term of the agreement and also to cancel the agreement.
The property cannot be sold whilst the usufruct is in place by the owner of the property
This does not allow the usufructuary to sell the property
It does not give ownership of the property.
The usufruct cannot be transferred
The usufructuary is responsible for the upkeep of the property.
The usufructuary cannot sell the property.
The right of superficies is used when you want to build upon land you do not own .
It legally separates ownership of the buildings from ownership of the land.
The right of superficies is covered in the civil and commercial code section 1410 to 1416
It registers the right to use the land and to build and to own the buildings on the land for a set time 30 years or lifetime, it can be used in conjunction with a land lease for a foreigner who wants to build and lease the land.
It is registered at the land office the fee is 1.1 per cent of the amount you pay the use of the land.
The Superficies agreement does not end even if the land is transferred as it is attached to the land not the owner of the land therefore it continues.
It can be inherited and transferred too making this attractive for elderly foreigners to be able to leave for their family in their will.
If there is a building already registered the land office will not allow a superficies they will want you to opt for a
Both documents are very important and offer good protection we use them as part of our legal and safe solution.
It is never too late to protect your investment.
To arrange a free consultation online contact us at firstname.lastname@example.org or call +66956583038 Whats App or line