Having knowledge about the superficies agreement in Thailand is crucial since it is a common practice in this area. The superficies right is known for creating a distinction between ownership of a building and building upon the land that you do not own.
The right of superficies is used when you build upon land you do not own. It creates the registered right to use the land and to own the structures you build upon the land without obtaining ownership rights over the land itself.
A right of superficies may be established either for 1- a period of time up to 30-years, or 2- for life of the owner of the land or 3- for the life of the superficiary. A right of superficies registered for a specified term is a transferable and inheritable interest in land
Therefore, through a superficies agreement in Thailand, a right can be created in your name to use land and build upon it without being the owner of the land.
Term for Superficies in Thailand
The said right can be registered in Thailand for the following durations:
- A period of thirty years, or
- During the life of the owner, or
- During the life of the superficiary.
This right can be transferred to a third party and can also be inherited on the death of the superficiary.
Superficies right in Thailand
Now that you have a basic knowledge about superficies, we shall discuss the superficies right in Thailand in detail. In Thailand, the superficies right is attached to immovable property or a property that has a title deed. The superficies right can be used to separate the ownership of land from anything that is built on the land. In order for a superficies right to be legally enforced, such an agreement must be registered with the Land Department in Thailand. The laws relating to superficies in Thailand are available in the Civil and Commercial Code.
Benefits of Superficies right in Thailand
Now that you know what a right of superficiary is and how commonly it is practiced in Thailand, you must be wondering why people, especially foreigners are interested in the superficies right. In this section, we will be discussing some benefits of the superficies right in Thailand. There are many benefits attached to the superficies in Thailand.
One of the advantages of the said right is that it creates an interest in a land under a lease agreement and automatically transfers the ownership over something that is built on leased land. Another benefit of the said right is that it can be transferred to third parties.
In addition to this, the superficies right is also transferable through inheritance. Moreover, this right cannot be terminated on the death of either the owner or the superficiary, which means that it can be created for a long duration.
Transfer of Superficies
If you are wondering whether or not you can transfer your superficies to a third party in Thailand, then you have come to the right place as we are going to shed light on it. The superficies right can be transferred to a third party in Thailand. Moreover, the said right can also be transferred through inheritance.
However, it is crucial to note that the superficiary must not cause any damage to the land otherwise he will be held responsible in place of the third party and shall be sued directly in case of any destruction to the land. In situations where the superficies right is transferred through inheritance, the same terms shall be applied to the heirs of the superficiary.
Superficies and Foreigners in Thailand
A lot of foreigners come to law firms to seek legal advice regarding their superficies right in Thailand. It must be noted that section 1410 of the Civil and Commercial Code deals with the foreigner’s superficies right in Thailand. According to this section, a foreigner can register a superficies right in Thailand if there exists an agreement between the parties. Normally, there is no fee to register a superficies right in Thailand at the Land Department, but when it comes to a foreigner, there needs to be a mere consideration that may vary between the parties and also depends on the discretion of the Land Department. Moreover, the superficies right can be terminated by either one of the parties. A note has to be sent to the other party within a reasonable period of time.
Relation Between Superficies and land lease
Many people approach lawyers with a query about whether they can register their superficies right separately or along with their land lease. It is pertinent to note that the superficies right can be registered as both a separate right and along with a land lease. In addition to this, a superficies right can help in making your right to lease stronger.
Registration of Superficies Agreement in Thailand
In order to register a superficies right, it must be first entered in the Land Department’s register, which will then be copied by the relevant competent authority on the owner’s title deed’s backside. The registration fee for a superficies right amounts to 1.1% of the total consideration that is paid for the said right.
Superficies and an Existing Building
In situations where there already exists a building on the land, then the Land Department will not approve the registration of the new superficies right. The Land Department will grant approval only after the transfer of ownership of the building separate from the land.
Conclusion
The superficies right is both an alienable and transferable right.
It creates an interest in land and allows a person to acquire the building on the land.
The right will be available to both foreigners and nationals in Thailand.
It is crucial for the superficies right to be registered in the Land Department for it to be enforceable within the ambitions of law in Thailand.
Even though it is a transmissible right, it must be noted that the superficies right is temporary in nature.
In situations where the superficiary desires to further transfer the right to a third party, he should first attain the consent of the owner of the land.
One disadvantage of superficies in Thailand is that it is not common in commercial and local dealings.