Basics of the Right of Superficies in Thailand
The right of superficies is found in Sections 1410 to 1416 of the Civil and Commercial Code. It is a right in land granted by the owner to the holder of the right, called the superficiary, in order to own structures built upon or under the land.
The superficiary may either hold the right of superficies for a term of up to 30 years or for the lifetime of the superficiary. The right is transferable and transmitted by inheritance. In principle, foreign nationals and foreign companies are allowed to be granted the right of superficies. A few other principles concerning the right of superficies are explained in the following Thai Supreme Court decisions:
- Decision No. 2577/2551: In the case where the Plaintiff and Defendant are co-owners of a single plot of land, but the Defendant constructs a house upon the land with permission from the Plaintiff, the Court held that, in such a case, the house belongs entirely to the Defendant and is not included in Plaintiff’s co-ownership of the land. However, the Court held that in the case as described, where the Defendant constructs a house on land that is co-owned by the Plaintiff, the right of superficies is created for the benefit of the Defendant. In this case, where the right of superficies is not in writing and registered before the proper government official, the right is limited to being merely a “personal right” as between the grantor and the grantee and is not enforceable against third parties. Furthermore, where the time period for the right of superficies is not specified, the grantor of the right may terminate it at anytime with notice to the grantee given at a reasonable time in advance.
- Decision No. 1170/2543: In this decision, the Court held that where the grant of superficies does not designate its duration, the right of the grantor to terminate at anytime with notice to the grantee given at a reasonable time in advance shall be enforced strictly. For example, in the situation where the land owner grants the superficiary the right to use the land to cultivate a particular type of crop and the right of superficies has not been designated with a specific duration of time, the land owner may still terminate the right at anytime with notice given to the superficiary a reasonable time in advance even if it is known that it requires at least a year to cultivate that particular type of crop.
The right of superficies may be an option for foreigners interested in investing in land in Thailand. Nevertheless, the law regarding superficies is complicated and it is advised that foreign investors consult with competent legal counsel.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.