Enforcement and Punishment Measures in Land Holding as an Agent for a foreigner
If it appears the fact last that there is the threat of land holding as an agent for a foreigner, the measures to the land disposal and the offender punishment shall be enforced as follows;
1- Measures on land by enforcement to dispose of the land in accordance with legal procedures.
Under Section 94 and 96 of the Land Code, stipulate the regulation when it appears that person who obtained the land as an agent for a foreigner or foreign entity or foreigner who obtained the land illegitimately, he/she shall dispose of such land in the portion of his/her possession within the period of time specified by the Director-General of the Department of Lands which shall be not less than one hundred eighty days and not more than one year. The Director-General shall have the power to dispose of such land if time limit elapses.
2- Measures on individuals with criminal offense and to be punished in accordance with laws.
In the case of applying for land registration as an agent for a foreigner, there will be a criminal offense as follows;
- 2.1 Offenses against the Criminal Code Section 267Section 267: Whoever, notifying the official doing oneself's duty to make any false entry in the public or official document for the aims to be used as evidence, shall be imprisoned not out of three years or fined not out of six thousand Baht, or both. due to information the competent official to recode false statement in the official documents shall be subject to punishment with an imprisonment of not exceeding three years or a fine of not exceeding 6,000 Baht or both.
- 2.2 Offenses against the Land Code. The alien who commits the offenses under the Land Code Section 111, due to the acquisition of land illegitimately; shall be subject to punishment with a fine of not exceeding 20,000 Baht or an imprisonment of not exceeding two years or both. Juristic person who commits the offense under the Land Code Section 112, or Section 113 in case of Thai people; due to the acquisition of land as the agent for a foreigner or foreign entity shall be subject to punishment with a fine of not exceeding 20,000 Baht or imprisonment of not exceeding two years or both.
Source: Thailand Land Department
When a nominee land ownership is put in place both parties risk being fined and jailed.
The Land Code Act
The Land Code Act prohibits foreigners from land ownership in Thailand:
- Section 94 Land Code Act: 'All the land which as alien has acquired unlawfully or without permission shall be disposed of by such alien within the time limit prescribed by the Director-General which shall not be less than one hundred eighty days nor more than one year. If the land is not disposed of within the time prescribed the Director-General shall have the power to dispose of it. The provisions on the forced sale of land in CHAPTER 3 shall apply mutatis mutandis'.
- Section 96 Land Code Act: 'When it appears that any person (including a juristic person) has acquired land as the owner in place of an alien or juristic person under the provisions of Section 97 and 98, the Director-General shall have the authority to dispose of such land and the provisions of Section 94 shall apply mutatis mutandis'.
- Section 113 Land Code Act: 'Any person who acquires land as an agent of an alien or juristic person under the provisions of Section 97 or 98 shall be punished with a fine not exceeding twenty thousand baht or an imprisonment not exceeding two years, or both'.
The legal restriction in this setup is that the Thai may not be deemed the agent of or nominee owner on behalf of the foreigner. This structure becomes illegal when the Thai national can’t be seen as the freehold owner any more. Freehold owner can be defined as the person with the right to sell, mortgage, transfer or exchange the property, and/or to exclude others from doing these things. If the contract structure is too much in favor of the foreigner, and puts too many restrictions upon the Thai owner's rights inherent to ownership, this structure could become illegal (for both parties).
Related: Technically a Thai spouse could be deemed a nominee on behalf of a foreign spouse, unless the correct procedure has been followed read more...
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