Real rights in Thailand are basically property rights attached to a real property as opposed to contract rights which are in essence attached to a specific person or persons. The real rights of usufruct, superficies, habitation and servitude have 'droit de suite', meaning if the property is transferred (e.g. through succession, bankruptcy or sale) these rights follow the property and remain in full force against the new owner or any other third party. The second principle of these rights is called 'droit de priorite', meaning that when several rights are recorded on the same property the older real right has priority above the newer right. No real right is complete (enforceable) unless made in writing and registered by the competent official (meaning in Thailand the official Thai Land Registry).
The right of usufruct refers to the rights granted under the Civil and Commercial Code sections 1417 to 1434 whereby the owner of an immovable property (condominium, land and/or house) grants to another person for a limited period of time the right of possession, use, enjoyment, management and the benefits ('fruits') the property may produce. Some describe usufruct as a form of temporary ownership or a life estate.
The right of usufruct is an immovable property right and can be obtained by legal agreement with the owner of the property. The right of usufruct contract must be in writing and registered on the title deed at the local land office to be complete and enforceable. The Thai script version of the usufruct contract will be recorded as a 'memorandum of usufruct' in the official registers of the land office and noted on the backside of the land title deed copy of the owner and on the Land Registry's original. Usufruct follows the freehold title of the land and is not terminated on transfer of the land (e.g. at bankruptcy, transfer of ownership or death of the 'naked' owner of the property). The right of usufruct can be granted for a period of time, up to 30 years, or for the duration of a person or persons' life. Usufruct is a right granted to a specific person or persons, and in any case comes to an end at death of the person or last person granted the right of usufruct.
Superficies contract (granting the right of)
The Right of Superficies is a transferable and inheritable interest in land to own or acquire buildings construction in, on or above the land owned by another for a specified term. The right of superficies legally separates ownership of anything on or in the land (a structure or plantations) and ownership of the land itself. The right of superficies can be registered as a separate right or in combination with a land lease. A right of superficies and land lease registered on the land title deed is the recommended structure to protect a long term (30-year) land leasehold property investment in Thailand.
The right of superficies can be obtained by agreement with the land owner and must similar to a usufruct be registered on the land title deed by the Land Registry. As a registered right it follows the freehold title of the land and is enforceable against third parties and future (transferee) land owners. The right of superficies may be created either for a period of time up to 30-years, or for life of the owner of the land or the superficiary. If created for a period of time the right of superficies may be renewed upon expiration (Section 1412 Civil and Commercial Code).
The person granted the right of superficies has the right to transfer the right of superficies, and, if registered for a period of time, is transferable by way of inheritance.
Habitation (right of)
The right of habitation concerns only the right to dwell in a house. The grantee of the right of habitation does not pay rent to the grantor. If there is rental payment made, the matter becomes a rental (tenancy). A right of habitation may be created for either a specific period of time or for the lifetime of the grantee. In case the rights are granted for a specific time period, the law states that such a period may not exceed 30 years; if a longer period is fixed, it shall be enforceable for only 30 years. The right of habitation may be renewed for a period not exceeding 30 years from the time of renewal. Lastly, the right of habitation is not transferable, also not by way of inheritance.
Servitude in the form of a 'right of way' is the Thai legal equivalent of an English easement. It is s a non-possessory interest in land. Servitude is governed by the Civil and Commercial code sections 1387 to 1401. Section 1387: 'An immovable property may be subject to a servitude by virtue of which the owner of such property is bound, for the benefit of another immovable property, to suffer certain act affecting his property or to refrain from exercising certain rights inherent in his ownership'. Servitude usually involves two or more separate properties/ plots of land, one of which is burdened and the other benefited by the servitude. The burdened parcel is called the servient property and the benefited parcel the dominant property.
Servitude in Thailand 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 impose building restrictions on a neighboring land plot. A registered right of servitude as a right of way 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.
Various juristic acts and rights concerning immovable properties must be in writing and in Thai script (with or without an English translation) and require registration by the competent authorities (i.e. the Land Department) to be complete and enforceable.
- Civil and Commercial Code