Investing in real estate in Thailand
By foreign nationals
Foreigners can own an apartment in a condominium in Thailand, but ownership of land or land and house is limited to only Thai nationals. It is under the Thailand Land Code Act not possible for foreigners to obtain outright ownership over land and house in Thailand. Foreign land ownership limitations apply but many foreign investors have been duped into believing that they can own land in their own name in Thailand.
Types of real estate properties in Thailand:
- Condo apartments registered under the Condominium Act of Thailand;
- Condo apartments not registered under the Condominium Act;
- Land and house
Types of real estate ownership, rights of use and possession structures for foreigners:
- Freehold ownership of a condominium apartment registered under the Condominium Act within the 49% foreign ownership ratio of such a condominium
- Ownership of a building separate from the land it is on (this always relates to and for the term of the rights to use the land)
- A registered leasehold of up to 30 years of:
- a condominium unit registered under the condominium act
- an apartment unit not registered under the Condominium Act
- land and/ or house
- land (combined with ownership of any structures on the land)
- Right of superficies (for a period up to 30 years)
- Right of usufruct (for up to 30 years or for life)
- Right of habitation (for life of the grantee)
- Shares in a company that owns real estate
- Thai nominee owner or on the name of a Thai spouse
Thailand registered real-estate rights from a foreign property buyer's perspective:
Leasehold or lease agreement:
As foreigners cannot own land in Thailand a 30-year lease agreement is the most common and recognized right under Thai law confirming a foreigner's interest in a real estate property. Long term property leases should best include:
- (1) a land lease and,
- (2) separate ownership of the house separate from the land.
Long term real estate leases aimed at foreign buyers often include a variety of options and aim to give confidence to the foreign investor for future resale or extension of the registered lease term. If you make a leasehold investment with the purpose of making a profit on a future sale (assignment of the lease contract) an agreement must be reached with the registered owner of the property at that time in the future. Lease is under Thai law in essence a personal right of the lessee and a contract primarily attached to the lessee. A lease cannot be transferred as an asset (as it is essence a tenancy or hire as a personal right if the lessee) and can only be assigned as a contract with apporval and cooperation of the lessor.
It is possible to sublease the property without consent of the registered owner and to gain income from the property during the lease term (but only if agreed in the lease agreement). Income received from renting out the property is subject to personal income tax.
Note: despite lease agreements offering renewal terms there is under Thai law and supreme court judgments no guarantee that even one lease renewal term will be given when the registered 30 year term runs out. An investement in a property under a lease agreement in Thailand should be made with a 30 years term in mind only.
House ownership (separate from the land):
A house can be owned by a foreigner in Thailand as a form of confirmed right of possession relating to the right to use the land for this purpose. In any long term leasehold structure ownership over the house is recommended, however the right to own a building on land owned by another relates directly to the right to use the land (i.e. the term of the land lease agreement and or superficies). When the right to use and possess the land expires the house must be removed or renewal of the right to use the land must be agreed with the owner at that time. Home ownership cannot be seen separate from the land lease agreement or superficies (right to use the land for building). Ownership of a house seperate from the land cannot be described as an investment, Read more: Home ownership procedure
The right of usufruct grants the right to use and manage an immovable property owned by someone else and is usually registered over land and house. As usufruct can’t be sold or transferred it is for investment purposes unsuitable. The person granted the right of usufruct can only transfer the exercise of his rights to another person but not the actual right of usufruct. In any case the usufuct comes to an end on the death of the usufructuary (section 1418), usufruct is not transferable by inheritance, Read more: Usufruct in Thailand
The right of superficies (the right to use the land surface to construct and own a building upon land owned by someone else) is an inheritable right and can be passed on your heirs. The right of superficies can be registered as a separate right or in combination with a land lease. A land lease agreement and a superficies agreement can complement each other. A correctly structured land lease and superficies can passed on to the heirs. Superficies can be granted for a period of time up to 30 years, or for the life of the person granted the right of superficies. As superficies has a limited term of 30 years superficies is similar to lease in Thailand a diminishing asset. It secures an investement for a fixed period of time, Read more: Superficies in Thailand
The right of servitude (similar to easement) is more than a contractual obligation between 2 or more land owners, it is a real right that becomes part of the land and is binding on successors and transferee owners of the burdened or servient land. A servitude registered on the land can increase the value of the benefited land and opposite it could decrease the value of the burdened land plot. Servitude can give for example the right to use an access road over adjoining land plots, or laying irrigation ditches, laying pipelines or utilities over neighboring land plots, but it can also impose building restrictions on a neighboring land, Read more: Servitude in Thailand
The only vehicle available to foreigners to actually control a real estate investment (i.e. land, land and house) in Thailand is a Thai limited company (majority Thai owned on paper). The idea behind this legal set-up is that the Thai shareholders hold their shares in the company on behalf of the foreigner. The actual owner is considered the foreigner (this is what makes it illegal) and the nominee shareholders have no claim in the company nor its assets. Uptill 2006 this was a very popular method among foreign investors to buy land/ real estate in Thailand. Since 2006 the government is restricting this option by several anti-nominee regulations that must prevent the use of Thai nominee shareholders by foreigners. These regulations must be applied by the Government Land Offices and Business Registration Offices when registering a new company with foreigners involved or at the time of transfer of ownership of real estate to a company with foreigners involved (either on the shareholder list, memorandum of association or authorized to sign on behalf of the company). A Thai company formed as a vehicle to circumvent foreign land ownership laws is illegal under the Land Code Act and void under the Civil Code because of its illegal purpose, Read more: Nominees in a Thai company
Thai nominee owner
In practice it occurs that foreigners purchase land and register ownership in a Thai national’s name and in return is given a lease, superficies or usufruct. This structure could be combined with a loan agreement and sometimes a mortgage registration. This structure is legal as long as the Thai national is not restricted in exercising his or her absolute ownership rights in the land which in essence relates to the freedom to encumber, sell and transfer the land. If it is deemed that the Thai national acquired the land under section 96 of the Land Code Act ‘as the owner in place of a foreigner’ both the foreigner and the Thai national are liable for fines and even imprisonment, Read more: Thai land laws governing foreign ownership limitations.
A Thai national married to a foreigner can own land however the land must become a personal property of the Thai spouse and not a joint marital or jointly owned property between the spouses. The Thai spouse will have sole rights to the land (or land and house) and can sell or encumber the property without consent of the foreign spouse. Assets held as personal property are not part of an equitable division of property in a divorce, Read more: Land ownership by a Thai married to a foreigner.
Condominium in Thailand:
Thai condominium laws allow freehold foreign ownership of a condominium unit. The Condominium Act contains regulations relating to foreign ownership. The main restriction which limits foreign ownership of condos can be found in section 19 bis of the Condominium Act B.E.2522 and not more than 49% of the total unit floor space of all units combined (or sale-able area) in a condominium block can be foreign owned, Read more: Owning a condominium in Thailand.
- Land Code Act section foreign ownership
- Condominium Act section foreign ownership
- Land ownership and Thai spouse