Superficies in Thailand is an important part of property law. Since foreigners normally cannot own land in Thailand many place the land in the name of their Thai wife and then register a superficies over the land for the house they will build on the plot of land. In the event of a divorce the land will still belong to his wife but the house would then still be in his name if that is how they drafted their prenuptial agreement.
Superficies in Thailand
There are three options when it comes to superficies in Thailand. The first is to register a superficies over the property for up to 30 years, the other option is until the death of the land owner and the other is until the death of the superficies holder or owner of the house. Your mileage will vary however in a standard superficies agreement there will be certain clauses in and below is an example of some of these clauses. Note that the superficies has to be registered against the title deed of the property.
- You will have the right to own the building, structures or plantations on the property;
- The superficies will be enforced for a period of X years (See the 3 options above);
- The remuneration for the use of Land will be paid monthly/annually in the amount of?
- In the event of destruction or loss of buildings and structures the superficies continues;
- When the superficies expires the holder of the superficies has to remove the buildings?
- When the superficies expires the holder of the superficies sells buildings to the land owner?
- The holder cannot transfer the superficies without written consent from the land owner;
- On the death of the holder the heirs will inherit the superficies in Thailand?
These are the most important causes in a superficies. If you are going to build on land with a superficies and your Thai wife does not own the property, when you die what happens to your Thai wife with regards to the superficies. Are both of you going to be on the superficies or are you going to make other arrangements when you die.
The main issue is always what happens to the buildings when the superficies in Thailand is complete. Is the owner of the land going to buy it from your or your estate at market value when it comes to an end? Also if there is not going to be a sale will the property built on the land be demolished and who will cover the cost of demolition and clearing all the rouble. These are all issues to be considered when looking at the superficies. If the superficies is with your Thai wife as is commonly the case then this is normally not an issue as you wife would simply continue to live on the property.
Speak to an attorney about this as well as other options such as a leasehold agreement or a usufruct if the superficies is not what you are looking for while in Thailand.