Real estate or property law in Thailand is the area of Thai law that governs the rights of use, possession and various forms of ownership of immovable property. In this article a brief introduction to the most common real estate laws in Thailand.
Primary sources of Thai property law for foreigners
Thailand Real Estate Laws Overview
1 - Land ownership for foreign nationals
2 - Apartment ownership in Thailand
3 - Leasehold interests in real estate
4 - House ownership separate from the land
5 - Land ownership by a Thai married to a foreigner
6 - Usufruct
7 - Superficies
8 - Habitation
9 - Servitude
10- Real estate ownership by a Thai company
11- Land Title deeds in Thailand
12- Property ownership transfer fees and tax
Foreign land ownership in Thailand
Land ownership in Thailand is governed by the Land Code Act and under Thai land laws only Thai nationals are allowed to own land or have a confirmed right of possession of land. Foreigners may not own land unless there is a treaty or exemption allowing the foreigner to own land in Thailand (section 86). Thailand has currently no treaty with any country allowing a foreigner to acquire land in Thailand. Any foreigner who violates foreign land ownership restrictions could be fined and/or sent to jail for a term of up to 2 years (Land Code act section 111). Only a foreigner who qualifies under section 96 bis of the Land Code Act may own up to 1600 square meters (or 1 rai) of land for residential purposes in specified areas. Foreign land ownership under section 96 bis among other requires an investement of not less than 40 million Baht in by the BOI approved Thai bonds and assets which must be beneficial to Thai economy and requires approval by the Minister of Interior. If granted foreign land ownership under this exemption is limited to the life of the person granted the right to own the land (not transferable, not inheritable). Permission for foreign land ownership under section 96 bis Land Code Act is rarely applied for or granted.
Foreign corporations operating a business in Thailand may for the duration of their business in Thailand obtain special privileges and exemptions for land ownership through the Board of Investement under section 27 of the Investment Promotion Act and under section 44 of the Industrial Estate Authority of Thailand Act or section 65 of the Petroleum Act. This exemption requires large investments and is limited to the duration of their business.
INHERITANCE OF LAND BY FOREIGNERS
According to section 93 of the Land Code Act a foreigner who acquires land as statutory heir can have an ownership in such land upon a permission of the Minister of Interior. Note that section 93 Land Code Act only refers to foreign land ownership under a treaty and not for example to foreigners inheriting land from their Thai spouse. A foreign spouse of a Thai national can inherit land but cannot register ownership of land and has to sell the land within one year from the date of acquisition.
Foreign condominium ownership in Thailand
Foreigners and foreign juristic persons may own an apartment unit in a building registered and licensed under the Thailand Condominium Act. Section 19 of this act governs foreign ownership of condos, which among others puts a limit on foreign ownership in a condo building and not more than 49% of all units in a condo project can be foreign owned. When the aggregate floor space of all units combined is 6000 square meters 2940 square meters can be foreign owned, or in case of 100 equal apartment units in one condo building up to 49 of the units can be foreign-owned, 51 or more must be Thai owned. In addition foreigners must qualify for ownership under section 19 which usually means that the foreigner must have brought into Thailand foreign currency at least equal to the total purchase of the condo and having exchanged this amount into Thai baht. The recipient bank inside Thailand will supply documents of the remittance and exchane of foreign currency and such proof must be submitted to the Land Department in order to register foreign ownership. It should be noted that foreign ownership is an individual personal right of the foreigner who qualified under section 19 and therefore foreign ownership of the unit is not transferable to another foreigner unless this foreigner (including foreign heirs) also individual qualifies for ownership under section 19 of the Condominium Act.
In case foreign freehold units in a condominium project are no longer available the remaining units may be leased to foreigners. Normal hire of property laws apply to the lease of a condo by foreigners. There is no separate law issued regulating the lease or rent of condominium units by foreigners as opposed to buying a condominium.
Foreign ownership only exists in a condominium registered and licensed under the Thailand Condominium Act. Common in the tourist areas of Thailand are apartment buildings not registered and licensed as a condominium. These apartment buildings are basically like any other building and the owner can rent out parts of his building under his own terms and conditions. Unregistered apartment buildings could for example be sold as a kind of time sharing in which the units are sold through leases to many different parties each having a specified block of time during which they may use the apartment.
Foreign lease contracts in Thailand
When it comes to rent or lease of immovable property in Thailand foreigners have the same rights as Thai nationals. Hire of immovable property (land, house, condominium) for residential purpose is governed by Civil and Commercial Code (sections 537 to 571) and further specified by the Thailand Supreme Court. Foreigners are under Thai law allowed to lease real estate property for terms of up to 30 years. Whether it concerns a lease of an apartment or land and/ or house for residential purposes by foreigners there is no requirement of bringing foreign currency into Thailand, as opposed to buying a condo unit freehold or leasing commercial property under the 'Hire of Immovable Property for Commerce and Industry by Aliens Act'.
Legally a lease agreement under Thai law can be best described as a prepaid tenancy contract. Lease is in the Thailand Civil and Commercial Code placed under the chapter 'specific contracts', meaning that it is not a real property right or true leasehold but a personal contract right primarily attached to the lessee. Lease in Thailand is not a fixed asset. A lease agreement in Thailand can be terminated premature (breach of contract), cannot be mortgaged, is under hire of property laws not automatically inheritable and the lessee only has a legal right to sub-let and assign the remaining period left on a lease when this is agreed in the lease agreement. Assignment of the lease agreement always requires cooperation and approval of the owner of the property and registration at the Land Department.
Foreign house ownership separate from the land
Ownership of a house in Thailand can be transferred separate from the land it stands on. Land and house could have different owners and in a long term lease construction it strongly advised to follow the correct procedure to obtain legal ownership of the house. Transfer of a structure separate from the land must be in writing and registered with the competent authority (i.e. the Land Department's branch or provincial office). The right to own a building upon another man's land always relates to the term an right to use and possess the land (i.e the term of the land lease and/ or the right of superficies term).
Thai house book
A Ta.Bian.Baan or Tabien Baan is the document which gives the address of a house or apartment unit and states the persons who have legal domicile at the address. A house book is issued by the local municipality and is merely a registration document. As opposed to Thai nationals a house book is generally not considered an important document for foreigners.
Land ownership by a Thai married to a foreigner
Foreigners married to a Thai national can't own land themselves but the Land Department will allow transfer of ownership of the land to the Thai national who is married to a foreigner after a joint statement 'letter of confirmation' by the couple stating that the money expended on the land is personal property of the Thai spouse. This procedural requirement is based on a regulation issued by the Ministry of Interior (March 1999), which is based on the principle of section 1472 of the Civil and Commercial Code that if personal property has been exchanged for other property during the marriage (in this case land) that property becomes and remains a personal property, and not a joint marital property between husband and wife. This way the foreign spouse does not obtain ownership rights in the land based on Thai family laws, ‘property between husband and wife’. That is, as a personal property of the Thai spouse, the Thai spouse has sole management of the property (she can sell, encumber the property), and as a non-marital property the real property is not subject to an equitably division between husband and wife upon termination of marriage.
Usufruct is the right to use or occupy another person's real property for one's life or up to 30 years under sections 1417 1428 of the Civil and Commercial Code. The right of usufruct is not complete unless registered with the Thailand land department. Established and recorded in the official land registry of the local land office for a fixed term or for the life of the usufructuary, the usufruct exists as long as the usufructuary is alive. After his or her death the real estate property reverts back to the owner. A usufruct is often given to a family member such as a foreign spouse with the intention that a foreign spouse is protected in the event of death of the Thai spouse (registered owner). The usufruct gives the right to the foreign spouse to remain in the property upon the death of his or her Thai spouse.
Right of superficies (sections 1410 to 1416 Civil and Commercial Code) in Thailand is a civil law real estate right. In France it is called 'droit de superficie', in Germany it is called 'Erbbaurecht' and in the Netherlands it is called 'recht van opstal'. The effect of the right of superficies in these countries is the same; it grants the superficiarius (meaning the person granted the right of superficies) the right to build and own buildings, structures or plantations upon land belonging to another person. The superficies agreement specifies the terms under which the right is granted, and by registration at the Land Department's provincial or local branch office it legally separates ownership of the land and everything on land. The right of superficies in Thailand is limited to a period of time of up to 30 years or for the life of the owner of the land or the life of the superficiarius. The person in the agreement granted the right of superficies obtains ownership over the building without obtaining or having ownership rights in the land. A superficies in Thailand will be allowed before construction or during the construction of a building, generally not for an existing building unless the building officially transferred and transfer taxes and fees have been paid.
The right of habitation under the civil and commercial law of Thailand (sections 1402 to 1409) refers to the right of a person to live in the house of another gratuitously. The right of habitation differs from a usufruct contract that the person granted a usufruct is allowed to transfer the exercise of his rights to a third person (not the actual usufruct), where the right of habitation grants only the use of a property for the residence of the grantee himself and family. A habitation contract refers to the right of dwelling in a house.
Servitude is s a non-possessory interest in land. Servitude is governed by the Civil and Commercial code sections 1387 to 1401. Servitude can involve several kinds of benefits and burdens, but usually it involves the use of neighboring well, the use of an access road over adjoining land plots, laying irrigation ditches, laying pipelines or utilities over neighboring plots, but it can also restricts building on a plot of land. A registered right of servitude is an important right in case a plot of land is surrounded by other plots without direct access to a public road. In this case a right of servitude registered over adjoining plots guarantees uninterrupted access to dominant property.
Up to the May 2006 Land Office guidelines it was common practice for foreigners to purchase land or condominium beyond the foreign ownership quota through a majority Thai owned but foreign controlled Thai limited company. As long as the company had majority Thai shareholdings there were no restrictions when purchasing a property and the partly foreign owned company was treated like any other Thai company. Currently the government is restricting the misuse of Thai companies by foreigners by enforcing laws that previously were not enforced. Under these laws they specify the procedures for the officials to follow when dealing with partly foreign owned companies registering land or rights over land. In this case the Thai shareholders in the company will be investigated to determine if they are not acting as nominee shareholders on behalf of foreigners.
The most important part of a real estate investment or buying a house in Thailand is the ownership title deed. Does the land have a suitable and legally issued land title deed. The land title deed is the official document administrated by the Land Department which states and proves a person's legal right to own or possess a piece of land, its survey status, as well as rights, obligations, or mortgages on the property as well as the right to dispose or encumber the land. The highest land title deed offering full private ownership in Thailand is the 'chanote', a freehold land title, also referred to a nor sor 4 (jor).
In a sale and purchase agreement of a new condominium unit or a land and house in an official government licensed housing development the law specifies that the developer may ONLY pass on up to half of the transfer fee to the buyer, all other tax and fees are by law the responsibility of the developer. In other situations (private sale, or private apartment or housing development) the parties are free to divide the transfer fees and taxes and it could vary from purchaser pays all to seller pays all depending on the agreement between the parties. The following conveyancing taxes and transfer fees are involved with transfer of real estate in Thailand:
- Specific Business Tax of 3.3% (if applicable)
- Stamp Duty of 0,5% (does not have to be paid when Specific Business Tax is charged)
- Withholding (Income) Tax calculated at a progressive rate for individuals and is fixed at 1% for corporations.
The above tax rates are the general tax rates that apply on the transfer of ownership of land, land and house, condominium or the transfer of a house separate from the land. The above taxes and fees are charged at the time of transfer of the property. For more specific information visit the page 'real property conveyancing and tax'.
Other areas of law:
- Family law in Thailand
- Business law in Thailand