Do I need a superficies?

Hi, i have a usufruct contract with my ex-wife(thai). Do i need a superficies for building a house on this land, and must it be registered by the land office, signed from my ex and certificated from a thai-authority before i like to build this house. Also i like to register this house at my name and my daughters name thai/german also the daughter from my ex.
Asked 4 years ago
Norman

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The most suitable property right in your situation would be a with the land office (on the land title deed) registered right of superficies but a usufruct will do also.

Note that your situation is different because you are married to the owner and the financial relationship between you and your wife is subject to the rules of property of husband and wife as specified in the the civil and commercial code (a court will always apply this system and could ignore any usufruct or superficies created during the marriage). You can circumvent this system a bit by including your daughter in the usufruct or superficies but personally I am not in favor of this.

In general you could say that both usufruct or superficies offer some protection for your investment or your rights towards the property but it is not a 100% guaranteed protection (because of the above mentioned system of property of husband and wife). It may offer protection when your wife would predecease you and/ or prevents your wife from easily disposing of the property during the marriage but it says nothing of who gets what when the marriage ends. At death it also depends if there is a will or testament by which spouses name each other as beneficiary (or not).

Who gets what at the end of the marriage is basically a simple calculation of separating personal property and deviding marital property (also what happens to the usufruct or superficies is part of this calculation and could be terminated by a court). Often parties are not able to prove what is personal or jointly owned and then the rule of section 1474 civil code applies that in case of doubt it will be considered jointly owned and equally devided. Therefore you should always jointly administrate your finances during the marriage on a yearly basis and keep proof, what is peronal, paid with personal assets, and what is or has become marital or jointly owned property of husband and wife.

Basically the above also means that when you have a superficies you must also pay for the building with personal assets and you must be able to prove that it comes fom personal assets, otherwise it would simply become jointly owned together with your wife and the superficies invalid.

Read more:

  • Who gets what in a Thai divorce
  • Does my Thai spouse own the house
  • Answered 2 years ago
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