Bangkok Law Online Article Base2009Marital Property (land)

Buying land and registering ownership in your Thai spouse's name

As foreigners can't own land themselves in Thailand foreigners who are married to a Thai national often buy land and register ownership in their Thai spouse's name. The Land Department will only allow transfer of ownership of the land to a Thai spouse after a joint statement (written confirmation) by both the husband and wife that the money expended on the land is personal property of the Thai spouse, or alternatively they require evidence from the Thai spouse that the money is personal property according to section 1471 and 1472 of the Civil and Commercial Code.

If the money expended on the land is a personal of the Thai spouse the land becomes a personal property of the Thai spouse and not a jointly owned marital property (Sin Somros) between husband and wife (section 1472 of Civil and Commercial Code), and therefore it does not create foreign ownership rights in land. Even though it's only the land part that is restricted for joint ownership between husband and wife, in practice it is often the land and house that is registered in the Thai spouse's name as a personal property. This is not required.

The procedure at the Land Department is required under a regulation issued by the Ministry of Interior (March 1999). Prior to the 1999 regulation a Thai national married to a foreigner was not allowed to own land in Thailand.

Management during marriage of a real estate property owned by the Thai spouse

Immovable property which is jointly owned by the spouses must under Thai law be jointly managed by the spouses. In case of a foreign spouse the land cannot be jointly owned therefore it will be managed by the Thai spouse (e.g. the Thai spouse can sell the property without the consent of the foreign spouse). The foreign spouse can however protect their interest in the property by entering into a separate usufruct agreement with their Thai spouse, or in case of undeveloped land a right of superficies. Secondly, it's only the land aspect of the property that is restricted for foreign ownership, not the structures upon on the land or immovable property as a whole. Foreigner are allowed to have joint or sole ownership in the building upon the land. If the foreigner has registered joint or sole ownership over the house this prevents sole management by one of the spouse over the real estate property as a whole (ownership or co-ownership over the building must be registered at the Land Department). Certain legal acts with regards to jointly owned immovable properties between husband and wife must be jointly managed by husband and wife, unless parties have arranged differently in a prenuptial agreement (section 1476 of the Civil and Commercial Code). It is recommended as a moral duty between the spouses to prepare a 'last will' leaving their share in the residential property to each other.

Agreements between husband and wife
Section 1469 Civil and Commercial Code: 'Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby'.

Thai law in section 1469 gives each spouse the right to cancel or void any agreement entered between them during their marriage. In case of a registered right of usufruct or superficies the spouses can't directly cancel real rights like the right of usufruct or superficies (as long as it's registered on the title deed at the Land Department). If it's not on mutual consent it needs a Court order to cancel the usufruct or superficies, therefore making registered real rights an acceptable protection for a foreign spouse. It is possible to registered the rights to the land prior to the transfer to the Thai spouse. The Thai spouse will in this case obtain the land subject to the registered rights of usufruct, lease or superficies and section 1469 wil not directly apply.

Protection in case of land and house purchase on the name of the Thai spouse during their marriage:

agree on the registration of a Right of Usufruct in favour of the foreign spouse, or;
separate land and house and register the structure upon the land as joint or personal property of the foreign spouse. (in this case an additional Right of Usufruct is not possible, but as a general protection keep a record of all documents and payments made to be used as proof in case of a divorce ), or;
land and house is registered in the Thai spouse's name and the foreign spouse accepts full management and ownership by his or her Thai spouse.

In case of undeveloped land registered in the Thai spouse's name the options are:

agree on the registration of a Right of Superficies in favor of the foreign spouse, or;
apply for the building permit in the foreign spouse's name (option a an b guarantee full ownership of the structure and use of the land by the foreign spouse, or;
the building permit is in the name of both spouses and the house becomes a joint property (in this case a Right of Superficies is not possible, but as a general protection keep a record of all documents and payments made to be used as proof in case of a divorce ), or;
the land and building permit is in the Thai spouse's name and the foreigner accepts full ownership and management by his or her Thai spouse.

If the usufruct or superficies is canceled in a divorce procedure by the Court this will not per definition mean that the land or value will be allocated to the Thai spouse (even though it is registered as a personal property of the Thai spouse, under Thai law all property acquired throughout the course of the marriage is marital property regardless of how title is held). The land can be allocated to the foreign spouse by the Court . In this case the foreigner has 1 year to dispose of the land.

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The following information is supplied by the Land Department (2009):

A Thai, who has an alien spouse (legal or illegal), would like to purchase land, an alien spouse has to confirm in a certify letter that the spending on land is his/her separate property (sin suan tua) or personal asset. The proceeding of certify letters are as follows:

1. In case an alien spouse lives in Thailand:
1.1 In case an alien is a legally spouse, a Thai and an alien spouse have to give joint confirmation in certify letter according to the forms which were specified by the Department of Lands in front of the competent officer in the date of registration of rights and juristic act that the spending on land is sin suan tau of a Thai not sin som ros of the spouse.
1.2 In case an alien is an illegally spouse, a Thai and an alien spouse have to give joint confirmation in certify letter according to the forms which were specified by the Department of Lands in front of the competent officer in the date of registration of rights and juristic act that the spending on land is personal asset of a Thai only not common property.
2. In case an alien spouse lives in Thailand but could not proceed according to No.1: In case an alien spouse lives in Thailand but in the date of registration an alien could not give written confirmation together with a Thai in front of the competent officer at the registration land office. A Thai and an alien spouse shall lodge the application of testimony form for confirming that the spending on land is sin suan tau or personal asset of only a Thai not sin som ros or common property by lodging the application to the competent officer at provincial land office or any branch land office.
3. In case an alien spouse lives in oversea: n case an alien spouse lives in oversea and could not lodge the application of testimony form according to No.1 and No.2. An alien has to contacts the embassy, consular or notary public for giving testimony of an alien spouse in certify letter according to the forms which were specified by the Department of Lands that the spending on land is sin suan tau or personal asset of a Thai not sin som ros or common property one. The embassy, consular or notary public has to certify that person, who applies for certify letter, is truly spouse or they live together as husband and wife with a Thai. After, a Thai who would like to purchase land shall bring original of certify letter to the competent officer for registration of rights and juristic act accordingly.
4. In case a Thai who has legal or illegal alien spouse, if a Thai could show the evidence indicates that the spending on land is sin suan tau or personal asset according to section 1471 and section 1472 of The Civil and Commercial Code, the competent officer could registers rights and juristic act for a Thai without testimony form of Thai nationality and an alien spouse according No.1 – No.3.
5. In case a Thai, who has alien spouse, purchased land before 23 March B.E. 2542 but informed or submitted a false document declaring that he/she is single. For relaxation of rule to a Thai, who has legal or illegal alien spouse, purchased or owned land after the date of marriage. And a Thai informed or submitted a false document to the competent officer declaring that he/she is single or a Thai has no alien spouse prior to the date of issuing letter of Ministry of Interior, Urgent No. MOI 0710/Circulation 792 dated 23 March B.E. 2542. An alien spouse and a Thai shall together give a written confirmation in certify letter in front of the competent officer that the spending on land is sin suan tau or personal asset of only a Thai not sin som ros or common property one. After, the competent officer retains documents in dealing file. If an alien spouse who lives oversea and could not give written confirmation together in front of the competent officer, an alien has to contacts the embassy, consular or notary public for giving testimony of an alien spouse in certify letter according to the forms which were specified by the Department of Lands that the spending on land is sin suan tau or personal asset of a Thai not sin som ros or common property one. The embassy, consular or notary public has to certify that person, who applies the certify letter, is truly spouse or they live together as husband and wife with a Thai. After, a Thai who would like to purchase land shall bring original of certify letter to the competent officer for retaining documents in dealing file.

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(Sample content land office 'Letter of Confirmation'):

Letter of Confirmation

At:.....................................

Date:............. Month ............................ Year..............

I, Mr./ Mrs..................................... and Mr./ Mrs............................... are registered/ unregistered both spouses. We together confirm that the money which Mr./ Mrs.............. ................................ shall expend on the purchase of land title deed/ N.S.3 K/ N.S 3 no..................... ... ............... Sub-district...... .... ...............District.................................................... Province.................................. or Condominium Unit no......... Floor.................... Name of the Condominium................................. Sub-district.......................................... District........................................ ... Province...................................... ............... is wholly Suan Tun or the personal property of Mr./ Mrs............................................ alone, not Sin Som Ros or the matrimonial property between husband and wife.

(Signature)................................ Certified spouse

(Signature)................................ Certified spouse

(Signature)................................ Witness

(Signature)................................ Witness

This agreement is made in the presence of ............................ Competent Official

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