Superficies in Thailand

Superficies in Thailand. A superficies is a legal right under Thai law that allows an individual or entity, known as the superficiary, to own buildings or structures on another person’s land. Unlike a lease or usufruct, a superficies grants ownership of structures independently from the land, making it a popular option for foreigners who cannot own land in Thailand but wish to secure rights over buildings they construct.

1. Legal Framework

Superficies are governed by the Civil and Commercial Code of Thailand, particularly Sections 1410–1416.

Key Features:

1. Ownership of Structures:
   • The superficiary retains ownership of buildings or other structures on the land for the agreed duration.
2. Duration of Rights:
   • A superficies can be granted for up to 30 years, for the lifetime of the superficiary or landowner, or perpetually if agreed.
3. Registration Requirements:
   • A superficies must be registered at the Land Office to be enforceable against third parties.

2. Rights and Obligations

2.1 Rights of the Superficiary:

1. Ownership:
   • The superficiary owns any buildings, structures, or plantations on the land.
2. Transferability:
   • Superficies can be sold, transferred, or inherited unless otherwise specified in the agreement.

2.2 Obligations of the Superficiary:

1. Maintenance:
   • Responsible for maintaining the structures and complying with local regulations.
2. Land Use:
   • Must use the land as agreed with the landowner, such as for residential, commercial, or agricultural purposes.

2.3 Rights of the Landowner:

1. Land Ownership Retention:
   • The land remains the property of the landowner throughout the term.
2. Reversionary Rights:
   • Upon termination of the superficies, ownership of the structures may revert to the landowner unless otherwise agreed.

3. Common Uses of Superficies

1. Residential Development:
   • Foreigners often use superficies to build homes on land owned by their Thai spouses or business partners.
2. Commercial Properties:
   • Businesses can use superficies to construct office spaces, factories, or warehouses without owning the underlying land.
3. Agricultural Operations:
   • Agricultural businesses may plant crops or build infrastructure on land owned by Thai nationals or entities.

4. Process of Establishing a Superficies

1. Drafting the Agreement:
   • The agreement must clearly define the term, purpose, and rights of both parties.
2. Registration at the Land Office:
   • Both parties must appear with required documents, including land title deeds, identification, and the superficies agreement.
3. Fees:
   • Registration fees are calculated based on the appraised value of the land and are typically shared by both parties.

5. Advantages of Superficies

1. Ownership of Structures:
   • Offers foreigners legal ownership of buildings while adhering to restrictions on land ownership.
2. Security for Long-Term Investments:
   • Provides long-term control over property development and use.
3. Transferability and Inheritance:
   • Rights under a superficies can be transferred or passed to heirs.

6. Limitations and Risks

1. Dependence on Landowner:
   • The rights of the superficiary depend on the cooperation of the landowner, particularly for renewals or changes to the agreement.
2. Termination Risks:
   • The superficies terminates upon the agreed duration or the death of one party if linked to their lifetime.
3. Unregistered Agreements:
   • Unregistered superficies are not enforceable, leaving the superficiary vulnerable to disputes.

7. Practical Considerations

1. Legal Assistance:
   • Engage a qualified lawyer to draft and review the superficies agreement to protect your interests.
2. Verify Land Ownership:
   • Conduct a title search at the Land Office to ensure the landowner has the right to grant superficies.
3. Include Clear Terms:
   • Address issues such as maintenance, tax obligations, and termination in the agreement.

Conclusion

A superficies in Thailand provides a secure legal framework for foreigners and businesses to own buildings or structures without owning land. With proper registration and clear agreements, this legal tool can support various residential, commercial, and agricultural purposes. By seeking legal advice and conducting due diligence, parties can maximize the benefits of superficies while minimizing risks.