Land ownership in Thailand is a right exclusive only to Thai nationals. This notwithstanding, foreigners desiring to acquire some lands are not left without options. There are a number of legally sanctioned ways to acquire interest over lands in the Kingdom. However, most foreign nationals are only aware of company structured land ownership and long term leaseholds when in fact there are more ways available. One of these little known options is “superficies”.
Superficies is a right to own, upon or under the land, buildings, structures or plantations. This right is granted by law to all persons, Thai and foreigners alike. This means that although a foreigner is not the owner of the land, his interests over the improvements thereon –e.g. house, building, crops, etc.– can be legally protected through the right of superficies.
Many foreigners — for a lack of knowledge on legally viable options — appoint Thai nominees to own land in their behalf. The problem with this scheme is, aside from the fact that it is a blatant circumvention of the law, the Foreigner financier is without any legal protection for his or her investment. There is no stopping the Thai nominee from exercising his or her legally recognized ownership rights over the land. To avoid this dreadful scenario, a foreigner should have a registered title over the land—e.g. superficies– that can serve as an effective deterrent from unscrupulous nominees.
Primarily, there must be an agreement between the land owner and the superficiary (the grantee) detailing the grant of Superficies. This Agreement should be registered in the competent Land Office in order to be binding against third persons. As to the duration of superficies, it can be created for a period not exceeding 30 years or for the duration of the lifetime of either the landowner or the superficiary.
Superficies can be terminated after the lapse of the agreed period or upon the death of the party whose lifetime the superficies is established to last. Either party can also terminate the superficies at anytime in the event that the other party is guilty of breach of an essential condition.
Superficies is a practical and beneficial scheme to protect a foreigner’s interest over the land. Taking chances with a nominee’s sense of moral obligation maybe noble– albeit foolish– but employing ways to protect one’s investment is more reasonable.
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