Superficies in Thailand is a legal property right allowing an individual or entity to own buildings, structures, or plantings on another person’s land. Governed by the Thai Civil and Commercial Code, a superficies agreement can be invaluable for foreigners who are restricted from owning land outright in Thailand. By establishing superficies, a person can legally build on, occupy, or use the land without land ownership rights.
1. Definition and Purpose of Superficies
Superficies is essentially a long-term right that separates the ownership of structures from the ownership of the land itself. This agreement allows a superficiary to:
- Build and own structures (houses, buildings, factories) on the land.
- Plant and own trees or crops on the land.
- Sell or lease the structures independently from the land, providing flexibility and security.
Superficies is particularly beneficial for foreign nationals looking to construct and own a home or business in Thailand while complying with land ownership laws.
2. Key Characteristics of Superficies Rights
Superficies in Thailand offers several distinct features:
- Duration: Superficies can be granted for up to 30 years or for the superficiary’s lifetime. If specified, it can also be granted for the lifetime of the landowner.
- Ownership Rights: The superficiary has full ownership of any structures or plantings built on the land, independent of the landowner’s rights.
- Transferability: The superficiary can transfer, sell, or lease their rights, allowing flexibility for future sales or succession.
- Inheritance: In cases where the superficies is not limited to a specific term, it can be inherited by the superficiary’s heirs, providing continuity across generations.
3. Establishing Superficies in Thailand
The process for creating a superficies agreement involves several steps:
a) Agreement Drafting
Both the landowner and the superficiary must draft an agreement outlining the terms of the superficies, including duration, rights, and obligations of both parties. It should clearly specify whether the superficies is for a limited term or lifetime.
b) Registration with the Land Office
To be legally enforceable, the superficies must be registered at the local Land Office where the property is located. Both the landowner and the superficiary must be present, or their representatives must have the legal authority to act on their behalf.
c) Land Title Notation
Once registered, the superficies is recorded on the land title deed, providing official recognition and protection for the superficiary’s rights. This notation protects the superficiary in case of a sale or transfer of the land, ensuring continued ownership of any structures.
4. Costs and Fees Associated with Superficies
Fees for registering a superficies include:
- Registration Fee: Usually a small percentage of the property’s appraised value, paid at the Land Office.
- Stamp Duty: Depending on the superficies agreement, stamp duty may be applicable.
- Legal Fees: Consulting with a Thai lawyer to ensure compliance and proper documentation is highly recommended, and legal fees vary depending on the attorney and case complexity.
5. Rights and Obligations of the Superficiary and Landowner
A superficies arrangement creates rights and obligations for both parties:
- Superficiary Rights: The superficiary has full ownership and usage rights over the buildings or crops on the land. They may sell, lease, or inherit the structure or plantings independently of the land.
- Landowner Obligations: The landowner agrees to the superficiary’s rights and may not interfere with the structures on the land, even in cases of sale or transfer.
- Maintenance and Compliance: The superficiary is responsible for maintaining the structures and ensuring compliance with local laws and building codes.
If the landowner sells the land, the superficies agreement remains valid, and the new landowner is obligated to honor the terms of the registered superficies.
6. Termination of Superficies
Superficies can be terminated in several ways:
- Expiration of Term: If the superficies was granted for a fixed term, it expires at the end of the period unless renewed.
- Death of Superficiary or Landowner: In cases where the superficies is for a lifetime, it terminates upon the death of the superficiary (or landowner, if specified).
- Agreement Termination: Both parties may mutually agree to terminate the superficies before the end of the term, often involving compensation.
Upon termination, ownership of any buildings or plantings reverts to the landowner unless otherwise agreed.
7. Benefits and Limitations of Superficies
Benefits
- Foreign Ownership of Buildings: Superficies offers an alternative for foreigners to own structures on Thai land legally.
- Inheritance Flexibility: Superficies can be transferred or inherited, allowing long-term family use.
- Protection from Land Sale Impacts: Registered superficies rights are secure even if the land changes ownership.
Limitations
- No Land Ownership: Superficies provides building ownership, but the superficiary does not own the land itself.
- Renewal Uncertainty: For fixed-term agreements, renewal depends on the landowner’s willingness.
- Restrictions on Land Use: The landowner’s agreement may limit the superficiary’s activities on the land.
Conclusion
Superficies in Thailand is a valuable legal tool for those seeking long-term access to land without ownership, particularly for foreigners looking to build homes or businesses. With registered rights, superficiaries gain security over their investments, making it a practical solution within the Thai property law framework. Consulting a legal professional and registering the agreement are essential steps in ensuring the validity and enforceability of a superficies, providing both security and flexibility for long-term use.
