Usufruct

[canthai]

I would like to know where I can get an "Usufruct" prepared in Hua Hin. Any good lawyers names would be appreciated and the aprox. cost.

[Big Boy]

Have you tried putting 'Usufruct' into the search facility at the top of the screen? I've no idea what an Usufruct is, but there seems to be some useful information thrown up.

[Farang]

One of the good ones is P & A Notary in the old shopping mall, third floor, at the SW corner of the floor.

[Super Joe]

I would like to know where I can get an "Usufruct" prepared in Hua Hin. Any good lawyers names would be appreciated and the aprox. cost.

The Land Office do a standard one for you for 10,000 Baht, but I'd recommend seeing a lawyer as you made need some extra clauses put in, particularly if making the agreement with a spouse, see below. IMO there's a couple of good competant law firms in Hua Hin if you search around (I'll never recommend anyone though), they are more expensive but have farang lawyers who from my experience are a bit more on the ball with what clauses to put in whicch can make all the difference at the end of the day. Not exactly sure of their fees but possibly around the 20k mark for just the agreement, they will probably then suggest a land title search 10k. Some do full packages, agreement, title search and accompanying you to the land office to make sure everything is registered correctly, particularly checking that the Thai documents being registered are correctly worded as these can be wildy out but the Thai version will prevail under the law.

These full packages can be 50-60k Baht, people say this is a rip-off but I've seen leases that say you can sub-let your lease rights "with" prior consent from landowner, this should say "without". That one wrong word (or the Thai translation of it) could possibly screw things up for you and cost you some large money down the line. There's law firms in Bangkok, like Sunbelt Asia (if I'm allowed to mention them!?) advertising Usufruct agreement for 9,700 Baht on their website.

Good luck with it.

I've no idea what an Usufruct is, but there seems to be some useful information thrown up.

I'd never heard of them before I came to Thailand either BB, but they're becoming more popular of late. Basically as I understand it (could be wrong mind) ....

About Usufructs:
A Usufruct is a Latin term (usus et fructus, meaning "use and enjoyment") originating centuries back from Roman law and used in many developed countries who have Civil Law. It's been in Thai law since the early 1900's I believe, and was adopted from French Civil law. A 'usufructuary' has the right to possess, use and manage immovable property and the land for their entire lifetime. Your name gets registered on the back of the land title just like a lease.

Whereas under a lease you have to add in a clause about sub-letting your lease rights (selling on), with a Usufruct Thai law already states you have the right to issue a lease to a.n.other, or temporarily rent it out on short term non-registered rentals, without gaining prior consent from the owner, you can't sell the property though only sell on the lease rights. Your Usufruct rights end when you die, they can't be inherited etc, but any lease you've registered to a family member/children beyond your death is still valid until it's period expires.

A really key point is that if you registered the Usufruct with a spouse AFTER you were married then the agreement could possibly be cancelled by either party upon divorce in accordance with a divorce law that states "agreements made during marriage can be cancelled at the request of either party, UNLESS it affects a third party". A decent lawyer should advise you to have a separate lease/rental agreement in place with say a family member, so that a third party is involved, or at least do this when the writing's on the wall relationship wise. But if you bought the land in girlfriend's name and registered the Usufruct prior to marriage, then the above doesn’t apply as it's only agreements made during marriage that can be cancelled.

Another big advantage is if say your Thai wife (landowner) passes away before you, she may have 'willed' the land to you but you've got to try and get that registered in your/your kids names or sell it, with possible interference by family members. With a Usufruct whoever takes over that land, you still have the right to live in that same house for the rest of your days and you still have a legal right to give a 30 year lease to your kids when you're getting near the end of your days.


Extracts from Thai Law:
Section 1417 - An immovable property may be subjected to a usufruct by virtue of which the usufructuary is entitled to the possession, use and enjoyment of the property. He has the right of management of the property.
Section 1418 - A usufruct may be created either for a period of time or for the life of the usufructuary. If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary.
Section 1422 - Unless otherwise provided in the act creating the usufruct, the usufructuary may transfer the exercise of his right to the third person. (Added: This is for maximum of 30 years though, not transfer your lifetime rights)

SJ

[Super Joe]

Here's a link to a thread about Usufructs I started about 18 months ago when people started using them:
http://www.huahinafterdark.com/forum/fo ... t9136.html

SJ

[stgrhe]

I heard the going rate right now at the Hua Hin Land Office is 15,000 baht. However, if the land is south in Pranburi then the cost is just 75 baht.

[JimmyGreaves]

I heard the going rate right now at the Hua Hin Land Office is 15,000 baht. However, if the land is south in Pranburi then the cost is just 75 baht.

Typical HH rip off, sometimes I just hate this town.

[Super Joe]

I heard the going rate right now at the Hua Hin Land Office is 15,000 baht. However, if the land is south in Pranburi then the cost is just 75 baht.

Typical HH rip off, sometimes I just hate this town.

Did one last week for a Brit with Thai wife and it was still 10k, but I don't doubt stgrhe's info for one minute, you can see a different official and things can be different. They also had their lawyer with them which may have made a difference.

But I'd strongly advise against using the land offices' standard agreement for Usufruct or lease. There are all manner of important clauses that should be added to these agreements (by a competant lawyer), which are recognised in Thai law and can prove critical later down the line.

SJ

[johnnyk]

On another web site I've seen the cost for registering the usufruct pegged at 100 baht upcountry. Doesn't include drafting the agreement though.
Its a good way to go because it can give lifetime right to the land not just 30 years as in a lease.

[Super Joe]

On another web site I've seen the cost for registering the usufruct pegged at 100 baht upcountry. Doesn't include drafting the agreement though. Its a good way to go because it can give lifetime right to the land not just 30 years as in a lease.

Agree Johnny, not sure why the Real Estate lawyers promoted leases with 30+30/A=π(3)^2=9π=28.27xpieR2 when nominess were getting the spotlight, and didn't just go the Usufruct route in the first place. By the way people its dead simple and inexpensive to cancel your lease now and register a Usufruct if your lessor (wife?) is willing to go along with it.

The point I was making earlier with regard these land office standard Usufruct agreements is that you get much better value for money, protection etc by paying a competant lawyer 25k Baht to produce the Usufruct agreement for you (ie: taking the last one they did and modifying it to suit your particulars In Microsoft Word in about 20 minutes flat ), than you would using the land offices standard agreement, even if it's at the normal cost of just 100 Baht, or even FOC.

The land offices standard Usufruct agreement could end up not being worth the paper it was written on in the event of divorce under the basic default law codes ... "CCC Law Section 1469: 'Agreements made between spouses can be cancelled by the court at the request of one party, unless agreements affect third parties"
A competent lawyer will include a seperate third party agreement, ie: with your brother, sister, Mum, Dad, hampster, purple rampant rabbit etc.

SJ

[stgrhe]

On another web site I've seen the cost for registering the usufruct pegged at 100 baht upcountry. Doesn't include drafting the agreement though. Its a good way to go because it can give lifetime right to the land not just 30 years as in a lease.

Agree Johnny, not sure why the Real Estate lawyers promoted leases with 30+30/A=π(3)^2=9π=28.27xpieR2 when nominess were getting the spotlight, and didn't just go the Usufruct route in the first place. By the way people its dead simple and inexpensive to cancel your lease now and register a Usufruct if your lessor (wife?) is willing to go along with it.

The point I was making earlier with regard these land office standard Usufruct agreements is that you get much better value for money, protection etc by paying a competant lawyer 25k Baht to produce the Usufruct agreement for you (ie: taking the last one they did and modifying it to suit your particulars In Microsoft Word in about 20 minutes flat ), than you would using the land offices standard agreement, even if it's at the normal cost of just 100 Baht, or even FOC.

The land offices standard Usufruct agreement could end up not being worth the paper it was written on in the event of divorce under the basic default law codes ... "CCC Law Section 1469: 'Agreements made between spouses can be cancelled by the court at the request of one party, unless agreements affect third parties"
A competent lawyer will include a seperate third party agreement, ie: with your brother, sister, Mum, Dad, hampster, purple rampant rabbit etc.

SJ

A few comments to the above:

1) The cost for drawing up a proper usufruct agreement should not be more than 10 - 12 thousand baht. If one needs help by the solicitor during registration that cost would be added. 25 thousand baht sound like a rip off and I suggest using Isaan Lawyers even if the premises is here in Hua Hin.

2) It should be noted that section 1469 of the CCC Law applies for ALL agreements, i.e. also including a land lease, entered between a husband and wife. Hence, unless a third name is entered a usufruct is simply only a guarantee for the non-Thai spouse to remain as resident should his/her Thai spouse pass away first.

3) In many cases a superficies is a much better way to go instead of a the standard land lease. A superficies has the advantage that it clearly states that the holder can build his own dwellings on the land. Also, a superficies can be inherited, which is not possible with a usufruct, and be for life or for 30 years, thus more flexible than the land lease.

[poosmate]

Is superficies bigger or just smellier

[Super Joe]

The cost for drawing up a proper usufruct agreement should not be more than 10 - 12 thousand baht. If one needs help by the solicitor during registration that cost would be added. 25 thousand baht sound like a rip off

You're right of course stgrhe about the costs. I was using 25k more as a hypothetical figure to show that no matter what inflated fees you're paying, its still better than the standard land office Usufruct which can be cancelled in event of divorce.

Also, a superficies can be inherited, which is not possible with a usufruct, and be for life or for 30 years, thus more flexible than the land lease. The person granted the right of superficies has the right to transfer the right of superficies, and, if registered for a period of time, is transferable by way of inheritance.

I'm not really familiar with Superficies, but is it the case that they can only be inherited if was originally set-up for a 'fixed period of time', which is a maximum of 30 years. In other words if you set it up for your entire lifetime, then it can not be inherited ? or have I read it wrong, it doesn't state this in the CCC's, but all the lawyers articles seem to say it!?

Very informative post by the way

SJ

[JimmyGreaves]

Hornets nest, even the lawyers can't give you definative answers to these questions and beat around the bush!

[Super Joe]

Edited:posted in wrong thread, moved it now to 'Protecting Assets' thread.

SJ