The usufruct contract (สัญญาให้สิทธิเก็บกิน) states and confirms the terms and conditions and formal agreement between the owner and the person or persons granted the right of usufruct (view sample contract). Usufruct in Thailand can only concern titled immovable property and is created by registration with the local land office. Usufruct registration fees are 1,1% over the amount paid for the right of usufruct or if given without the exchange of value (in the form of a gift) the registration fees will be less than 100 baht. After registration the right of possession, use and enjoyment of the property are transferred from the owner to the usufructuary for the term of the usufruct.
A right of usufruct is often registered and used to protect the interest of a foreign spouse in a real estate property in Thailand registered as a personal property of his or her Thai spouse. The foreign spouse has transferred the money used for the purchase as a (conditional) gift to the Thai spouse (read land purchase on the name of a Thai spouse) and the Thai spouse in return gives the right of usufruct to the foreign spouse.
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Section 1417. An immovable property may be subjected to a usufruct (usufruct contract granting the right of 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.
The usufruct of a forest, mine or quarry entitles the usufructuary to the exploitation of the forest, mine or quarry.
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.
If it is created for a period of time, the provisions of Section 1403 paragraph 3 shall apply mutatis mutandis.
In any case the usufuct comes to an end on the death of the usufructuary.
Section 1419. If property is destroyed without compensation being paid, the owner is not bound to restore it; but, if he does so to any extent, the usufruct revives to that extent.
If any compensation is paid, the owner or the usufructuary must restore the property so far as it is impossible to do so, having regard to the amount of the compensation received, and the usufruct revives to that extent; but, if restoration is impossible, the usufruct come to an end and the compensation must be divided between the owner and the usufructuary in proportion to the damages suffered by them respectively.
The same rules apply mutais mutandis in case of expropriation as well as in case of partial destruction of the property or of partial impossibility to restore the property.
Section 1420. When usufruct comes to an end, the usufructuary must return the property to the owner.
The usufructuary is liable for the destruction or depreciation in value of the property, unless he proves that the damage was not caused by his fault.
He must replace anything which he has wrongfully consumed.
He is not bound to give compensation for depreciation in value caused by reasonable use.
Section 1421. The usufructuary must, in the exercise of his rights, take as must care of the property as a person of ordinary prudence would take of his own property.
Section 1422. Unless otherwise provided in the act creating the usufruct, the usufructuary may transfer the exercise of his right to the third person. In such case the owner of the property may sue the transferee direct.
Section 1423. The owner may object to any unlawful or unreasonable use of the property.
If the owner proves that his rights are in peril, he may demand security from the usufructuary, except in the case of donor who has reserved to himself the usufruct of the property given.
If the usufructuary fails to give security within a reasonable time fixed for the purpose, or if, in spite of the owner's objection he continues to make use of the property unlawfully or unreasonably, the Court may appoint a Receiver to manage the property in his stead. Upon security being given the Court may release the Receiver so appointed.
Section 1424. The usufructuary is bound to keep the substance of the property unaltered, and is responsible for ordinary maintenance and pretty repairs.
If important repairs or measures are necessary for the preservation of the property, the usufructuary must forthwith inform the owner thereof and permit them to be carried out. In case of default by the owner, the usufructuary may have the work carried out at the owner's expense.
Section 1425. All extraordinary expense must be borne by the owner, but in order to meet these or expenses coming under the foregoing section he may realize part of the property unless the usufructuary is willing to advance the necessary funds without charging interest.
Section 1426. The usufructuary shall, for the duration of the usufruct, bear expenses for the management of the property, pay taxes and duties, and be responsible for interests payable on debts charged upon it.
Section 1427. If required by the owner, the usufructuary is bound to ensure the property against loss for the benefit of the owner; and if the property is already insures he is bound to renew such insurance when due He must pay the premiums of the insurance for the duration of his usufruct.
Section 1428. No action by the owner against the usufructuary or his transferee in connection with the usufruct or vice versa may be entered later than one year after the usufruct comes to an end. But in an action by the owner who could not have known of the end of the usufruct, the prescription of one year shall run from the time when he knew or ought to have known of it.
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