When I had my daughter several years ago, it raised some questions for me regarding both buying property and ownership laws that could possibly have some serious advantages for other foreigners in my situation.
We’ve all heard the barstool horror stories of the farang who bought the house in the wife/girlfriend’s name only to be shanghaied ‘x’ years/months/weeks later down the line. There is an extreme element of trust involved when a foreigner purchases a property and has said property titled under his spouse’s name. There are no laws to protect foreigners should the spouse decide that she’s had enough and shows her husband the curb. There are even stories (read: worst-case scenarios) of foreigners marrying Thai women (ceremony and all), buying a house under her name, going back to Europe for a short sojourn, and returning to Thailand to find their wife’s real Thai husband has moved in, added a few more locks and changed the name on the mailbox to Casa Del Somsak. Is this not a serious case of fraud? Sure it is, but what’s your recourse? From my understanding – legally, pretty much nothing.
Don’t get me wrong – I’ve met many great Thai women and there are many long-lasting, happy foreign/Thai couples who own property in the wife’s name and live happily ever after. But as I said, there is an extreme element of trust involved. So what are your options? Buying in a company name? Possible, but a bit more complicated than before (avoidance of nominee shareholders). Leasehold? I think we’ll be seeing a lot more of this in the future. Though the preferred method for a couple of developers and individuals I know, his concept is really still in its infancy in Pattaya. A number of property agents and developers in Hua Hin and Phuket are now finding this to be a preferred method, yet there are still a few unanswered questions with regard to its bankruptcy clauses and its ability to be renewed.
What if you and your wife/partner have a child together? Is it possible to turn the ownership of the property over to the child? Certainly, your own flesh and blood wouldn’t kick you out or sell it from under your nose, right? I decided to do a bit of digging on the subject, and here’s what I found on a Thai government website:
In the case where a Thai national who is a minor child of an alien applies for entering into a juristic act for the purpose of acquiring land, if an inquiry reveals no circumvention of the law, the competent official will proceed with the registration of rights and juristic act.
Sounds good, but a bit vague. The first questions that popped to mind: Would I have to be married to the mother, or as long as my name is on the birth certificate as the father, is all well? Does the child have to be a minimum age? Is it possible to have a lawyer draft an agreement stating that the child cannot sell the property before a certain age? Who signs the documentation on behalf of the child?
According to one of the area’s more reputable lawyers, children can own land from birth, but they are not permitted to sell the land until they are 20 years old – meaning this would only be good if you were planning on holding the property for at least 20 years. Also, the mother must sign on behalf of the child, not the father.
So, if you’re looking to hold a property for the long term, and are a bit skiddish about having your spouse hold the title to the property, this could very well be a good alternative. But of course, consult with a lawyer first.
I suppose another possibility here is signing a property into a Thai child’s name who is not your own. For example, if a friend of mine wanted to buy a house but didn’t want to set up a company or put it in his Thai wife’s name, could he ask to put it in my daughter’s name? I’ve yet to get a solid answer on this from a lawyer, but the best response I did get was ‘why not?’ You would have to draw an agreement that once she turned 20 she would have to then turn over the property to an entity of your choice or something along those lines, but this does seem like an untapped possibility for ownership options.
On another note, I did find another very interesting tidbit online about land ownership…
An alien may apply for acquisition of land in Thailand as a result of receiving inheritance as a statutory heir under section 93 of the Land Code, in this instance, the total area including the land which has already been acquired (or has not yet been acquired) shall not exceed that specified in section 87 of the Land Code, i.e. not more than 1 rai for a residential purpose;
So, basically, a foreigner can legally own land that is left to them as an inheritance, right? Wrong. You can inherit it but must change the ownership over to a legal form of holding (ie. Through a Thai registered company or Thai national) within 90 days (I read somewhere else this is 180 days, but I’ve had several sources tell me 90.)
By Stu Sutton
Stu Sutton is managing director of Jomtien Property and has worked exclusively in the Pattaya/Jomtien real estate market for 16 years. Please feel free to contact him with any queries, compliments, or good jokes at 086 108 6575, [email protected] or visit Jomtien Property’s website at www.jomtien-property.com