Superficies in Thailand. In Thai property law, superficies refers to a legal right allowing one party to build and own structures on land owned by another. This right is crucial for foreigners or Thai nationals seeking to build on land without owning it. Governed by the Civil and Commercial Code, superficies grants long-term land usage while maintaining the separation of land and building ownership. This legal arrangement can be beneficial for real estate investments, agricultural projects, or private homes.
1. Definition of Superficies
Superficies is a real right that allows the superficiary (the individual or entity granted the right) to build, use, or maintain structures such as houses, factories, or other buildings on another person’s land. This right can be granted for a specific period or for the life of the landowner or the superficiary.
Unlike a lease, which only provides temporary usage rights without ownership, superficies allows the superficiary to own the structures built on the land. The land itself remains under the ownership of the landowner, but the structures are treated as separate property.
2. Establishing Superficies
To create a right of superficies, the agreement must be registered at the Land Department, and both the landowner and superficiary must agree to the terms. The registration ensures that the right is legally recognized and enforceable, preventing disputes between the landowner and the superficiary.
The superficiary and the landowner can agree on several key aspects, including:
- Duration: The superficies can be granted for a fixed period (up to 30 years, renewable) or for the lifetime of either party.
- Ownership of Buildings: The superficiary retains ownership of any structures on the land.
- Transferability: The right of superficies can be transferred or inherited, depending on the agreement and whether the registration specifies these rights.
3. Rights and Obligations
a) Rights of the Superficiary
The superficiary has the right to:
- Build and own structures on the land.
- Use the structures and land as agreed in the superficies contract (e.g., for residential, commercial, or agricultural purposes).
- Transfer the right to a third party or pass it on to heirs, provided it is stipulated in the registration.
b) Obligations of the Superficiary
The superficiary must:
- Respect the terms of the contract, including limitations on the type of structure or purpose of use.
- Ensure that any construction or use complies with local laws, including building codes and zoning laws.
- Return the land to the owner at the end of the superficies term, unless agreed otherwise.
c) Rights of the Landowner
The landowner retains ownership of the land and can:
- Reclaim ownership of the land after the superficies term expires.
- Impose restrictions or conditions on the use of the land.
- Sell or transfer the land during the term of the superficies, although the superficies right will remain attached to the land.
4. Legal Considerations for Foreigners
Under Thai law, foreigners cannot own land outright, but they can own structures on leased land. Superficies offers a solution for foreigners looking to build and own property in Thailand while respecting the country’s restrictions on land ownership. For instance:
- A foreigner can purchase a condominium and enter into a superficies agreement to build and own a villa on land leased from a Thai national.
- The structure (house, building) remains under foreign ownership, while the land continues to belong to the Thai landowner.
5. Duration and Termination
The superficies agreement must clearly define its duration. The maximum period for superficies is generally 30 years, but it can be renewed. Additionally, the contract can specify whether the right of superficies will last for the lifetime of either the landowner or the superficiary, at which point the agreement ends.
Termination of the superficies can occur in several ways:
- Expiration: At the end of the agreed period, the landowner regains full control of the land, though the superficiary may have the option to renew.
- Agreement: Both parties can mutually agree to terminate the agreement before the expiration.
- Breach of Contract: If one party breaches the terms of the contract, it may be terminated by legal action.
6. Advantages of Superficies
Superficies offers several advantages, particularly for those looking to build and own property without owning the land:
- Security for the Superficiary: The superficiary can invest in the construction of buildings with the assurance of ownership over the structures, even if they do not own the land.
- Flexibility for Landowners: The landowner can allow development on their land without transferring ownership and can regain control of the land after the superficies period.
- Foreign Ownership: Superficies allows foreigners to legally own buildings in Thailand, circumventing the strict regulations on land ownership.
7. Common Uses of Superficies
Superficies is commonly used in several scenarios:
- Residential Development: Foreigners or Thai nationals building homes on leased land often use superficies to secure ownership over the home while the land remains with the landowner.
- Commercial Projects: Businesses constructing factories, hotels, or other commercial buildings may secure their rights through superficies, allowing them to develop land they do not own.
- Agricultural Projects: Farmers or agricultural businesses often use superficies to build infrastructure (e.g., barns, warehouses) on land owned by others.
Conclusion
The right of superficies in Thailand offers a flexible and secure way for individuals and businesses to develop and own structures on land they do not own. This legal arrangement is particularly beneficial for foreigners, who are prohibited from owning land but can still invest in and control property development through this legal mechanism. Proper registration of superficies and careful drafting of agreements ensure that the rights of both the landowner and the superficiary are protected, making it a valuable tool in Thailand’s real estate and property law framework.