Buying Real-Estate in Thailand in Your Thai Spouse’s Name
March 31st, 2009Foreigners 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 property is personal property of the Thai spouse. I.e. under section 1472 of Civil and Commercial Code (’property between husband and wife’) the land will become a personal property of the Thai spouse during marriage and not a joint property between husband and wife. This requirement is based on a regulation issued by the Ministry of Interior (March 1999). It would be illegal for a foreign spouse to have joint ownership in land with his/ her Thai spouse under the Thai Land Code Act. The regulation by the Ministry of Interior is aimed at preventing co-ownership by a foreign spouse in land during marriage and to assure that the land will become the sole property of a Thai national (foreigners can’t own land nor have co-ownership in land in Thailand).
Under Thai family law immovable property which is jointly owned by husband and wife must be jointly management, however, land or the property will not be a joint property between a foreign and a Thai national but a personal property of the Thai spouse, meaning owned and managed by the Thai national.
As the land, and in practice usually the land and house, will be registered in Thai spouses name it will be a personal property of the Thai national (irrespective any prenuptial agreement between husband and wife). Without a prenuptial agreement certain legal acts with regards and to certain jointly owned properties, like immovable property, must be managed jointly by the husband and wife (section 1476 of the Civil and Commercial Code). However, as the foreign spouse in Thailand can’t have ownership or joint ownership in land, the Thai spouse will irrespective a prenuptial agreement or Thai family law be the sole manager of the property (e.g. the Thai spouse can sell the property without the consent of the foreign spouse). Control over personal property (in this case the immovable property) can’t be arranged in a prenuptial agreement and is not restricted under Thai law regulating ‘property between husband and wife’.
Foreigners can however protect their interest in the property by entering into a separate right of usufruct agreement with their Thai spouse, or in case of undeveloped land a Right of Superficies. Secondly, it’s only the land aspect of the property that is restricted for foreign ownership, not the structures upon on the land or immovable property as a whole. Foreigner are allowed to have joint or sole ownership as a personal property over the structures built upon the land. If the foreigner has registered joint ownership over the house this prevents sole management by his or her spouse over the property as a whole. The spouses would require mutual consent to manage the property as a whole if the house is jointly owned. Ownership or co-ownership must be registered at the Land Department. Generally this is not common in Thailand and the real estate property is generally registered as a personal property of the Thai spouse.
In this (in case of joint or ownership by the foreign spouse over the house as distinct from its land) it is not possible to register a right of usufruct, but in case of undeveloped land a registered Right of Superficies is possible to achieve sole ownership over the structures by the foreign spouse.
The right to avoid any agreement between husband and wife in section 1469 of the Civil and Commercial Code will have partly effect on registered real rights (as long as they are registered on the title deed at the Land Department). In this case the Thai spouse would need a Court order to cancel the registered right of usufruct, therefore making registered real rights an acceptable protection for a foreign spouse, even though the usufruct could be avoided or canceled in Court in a divorce, however the land (or value) will not per definition be allocated to the Thai spouse.
To resume: Land must be registered in the Thai spouse’s name as a personal property during marriage, however; the building can be jointly owned or owned as a personal property of the foreign spouse. This prevents sole management over the property (land and house) by the Thai spouse. Instead of joint ownership (or sole ownership over the building) a registered real right of usufruct or superficies will also protect the foreign spouse’s interest in the property.
If you are not married to a Thai national but you are unmarried and have a Thai partner (Thai girlfriend) the situation is different. If you buy land in a Thai girlfriend’s or partner’s name the Land Department does not require proof that the money expended on the property is personal property of the Thai national. During marriage the reason for this ‘letter of confirmation’ by the Land Department is simply to prevent co-ownership in land by a foreign spouse based on ‘property between husband and wife’ during marriage according to Thai Family Law.
In case of a Thai girlfriend this is not the case. The foreigner may loan the money for the property to his girlfriend or she may accept the land as a gift. It is not allowed under the Land Code Act when the Thai national is ‘acting as the nominee owner or agent on behalf of the foreigner’. On registration the Land Office could require proof from the Thai national that he or she is not acting as a nominee owner or agent on behalf of a foreign buyer as this would not be allowed under the Thailand Land Code Act.
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