some bad news for Farang house owners

[khunsanuk]

Hi,

 

So, to confuse this situation even more, what about this scenario.

 

The Thai wife buys the house and takes out a mortgage as she doesn't have enough money to buy it cash. The husband then pays her monthly rent equal to the monthly mortgage payments.

 

While the husband is still paying for the entire house, the wife can then afford to buy it herself.

 

So, would this be legal or not?

 

Sanuk!

 

[ThaiHome]

all Thai wifes of Farang husbands are nominees if they can't prove that their personal wealth/income is high enough to buy the real-estate.

 

Exactly right. So there is your context. In everyone of the examples I provide, the Land Department could say she is breaking the law.

 

Remember that what he actually said - from my direct full paragraph quote from the Phuket Gazatte - was real simple: if she doesn't have enough money to buy property, and she uses money she got from a foreigner to buy property, it is against the law and the land title can be revoked. It was that simple and straight forward.

 

Since others are claiming he mis-spoke and really didn't mean what he actaully said (I guess this can always say this someon doesn't like what an oficial says), look at the actual practices of the Land Department. That provides the real context.

 

Up until shortly after the 1997 Constitution, if a Thai woman was married to a Farang she couldn't buy property. It was that simple.

 

Doesen't that provide all the context we really need to understand what he is saying?

 

No, it is exactly wrong.

 

Here is a legal opinion as posted on TV some days ago. You might also want to look up the definition of nominee and then explain how when the farang signs the statement mentioned below he still controls the property.

 

TH

 

 

QUOTE (Isaanlawyers @ 2009-05-28 14:39:18)

NO REASON TO PANIC HERE.

 

Foreigners can't use nominees to buy land. We all knew it. No?

Yes, foreigners CAN'T OWN LAND (few exceptions) in Thailand.

 

I receive emails EVERY WEEK of foreigners saying: "I'm buying land with my wife.."

NO! She buys land. Not you...

 

This is the letter of confirmation that foreigners sign when their spouse buys land in Thailand:

http://www.isaanlawyers.com/images/letter%...onfirmation.jpg

 

Now, I don't think these statements were made in English and there might have been some "translations problems".

The only sentence making problems is this one:

 

If the Thai spouse has enough money to buy the house that is fine, but if the Thai has no money and uses money given to him or her by a foreigner to acquire property, that is against the law. If we check and find out later that a Thai person has been using money from a foreigner to buy land anywhere in Thailand, we will revoke title deeds," he said.

 

Why? Because it's perfectly legal to make a loan agreement, to GIVE money to your spouse, and it's perfectly legal for a Thai to acquire land.

Perfectly legal for a spouse to make a lease, a usufruct, a loan agreement to a foreigner. Married or not.

 

You just have to make it clear: The married foreign husband (or spouse) doesn't own. The THAI PERSON OWNS.

 

If you for more information about PROPERTY LAW, try http://www.thailawonline.com (We will update this section in the next 2 weeks)

 

The LAND CODE is there, in the LAWS section.

 

The Civil Code is there. (Left menu, CIVIL CODE)

 

Usufruct is at 1417 of the Thai Commercial and Civil Code. (book 4)

Lease is under HIRE OF PROPERTY (537 Civil Code, book 3 title 4))

Superficies are at 1410.

Common property under marriage is called SIN SOMROS (1474 of Civil Code, Book 5, family)

 

Seb.

 

 

 

 

[Gadfly]

You might also want to look up the definition of nominee

 

You might provide a reference in Thai law to the word "nominee" is defined. You won't be able to find one.

 

And before going off on that diversion, let's go back to what the Land Department official actually said. If a Thai doesn't have enough money to buy property and a foreigner provides the money, the transaction is unlawful. He didn't stay, "but only if she is a nominee".

 

You are trying to read this into his comments, but he didn't say this. What he said was quite simple and straightforward. It also obviously leads to absurd and unjust results, which is not something new here.

 

And even if this rule only applies if she is a nominee, what does that mean. In all of the examples provided, including particularly the one by Khun Sanuk, a land official could claim she is a nominee.

 

Indeed, since Thai law doesn't say anything about what constitutes a nominee, your proposed unilateral re-translation of what the official said makes things even more ambigious.

 

And if Thai law now defines "nominee", and starts applying it to exisiting arrangements, that a retroactive taking of property. Taking property (stealing is what I would call it) of someone else based on a very ambigious and shaky theories on foreign ownership at a time when the Thai economy is in the shits?? It's not only unfair, its crazy.

[ThaiHome]

I can only assume you didn't actually comprehend my post.

 

In the KS's example, the husband would have signed the letter of confirmation that the property is not Sin Somros, so how could the wife be considered a nominee? The husband has signed a statement saying exactly the opposite. This is why they have the husband sign the letter.

 

I realize there is no hope of convincing you, you have your agenda and pursue it relentlessly, but I do hope other readers listen to what I have said and what many others on all the other forums are saying about this. It is a nothing new, just a restating of current policy.

 

TH

 

[CTO]

Nah - i'M WITH gADDIE - He actually makes sense

[ThaiHome]

Figures.

I give up. You people can just go on thinking he was talking about direct ownership by a Thai wife when the husband has signed a statement saying he has no claim (and therefore no control) on the property.

I can only think this is because you want to be that way so you can feel like victims of Thai persecution.

 

TH

 

[CTO]

Nah - I don't think too much about Thai persecution - that's a poor excuse I think we both agree for many instances of dumbness - luck or otherwise.

[Gadfly]

The problem here is that this official's comments and Thai law itself leads to ridiculous results.

 

This senior Thai Land Deparment official said that if a Thai doesn't have enough money to buy property, and a foreginer provides that money, it's against the law and the title shoud be revoked. The quote was pretty clear.

 

It should be obvious to anyone reading this thread now that the Land Department's position leads ludicrous and grossly unjust results. Several examples have already been provided. This is true irrespective of where you stand on the foreign ownership of land issue. (Or should be, but maybe not, since these sorts of restrictions inevitably lead to these sorts of absurdities and this, in turn, creates an incentive for those who support these protectionist restrictions to turn a blind eye to those absurdities and stay in denial).

 

Revising the translation of the Land Department's official to add a "nominee" qualifier doesn't help TH's position. In fact, he is only digging yourself into a deeper hole.

 

All of you will notice that TH was asked to provide a definition of "nominee" under Thai law and he has not done so even though his whole argument turns on his argument that this restriction only applies to "nominees". As I said before, there isn't a definition of the word "nominee" in Thai law. And this creates several problems.

 

First, if a definition is created now and applied to Thais owning property because of money provided by foreigners it will lead to a situations where ownership arrangements that are legal now become illegal because the law has changed.

 

Applying some new law that criminalizes arrangements that are now legal is either a wrongful taking or compulsory divestiture of property. In other words, its government sanctioned theft.

 

That was the whole problem with the efforts to make the Foreign Business Act stricter. You will notice that none of the elected parties supported making the Foreign Business Act stricter. Neither the Democrats nor Thaksin's current proxy party went near the issue. It was the militarily appointed NLA was responsible for the efforts tot make the Foreign Business Act stricter. What does that tell us?

 

Second, if include a nominee requirement (as TH claims the official meant to say), but leave the term "nominee" undefined, you are leaving it to the discretion of Land Department officials. That should cause tremendous pause for anyone who lives or has lived in Thailand.

 

Doing this is an open invitation for uneven application of the law, abuse of power and and plain old corruption.

 

And this is a recognized big problem in Thailand that goes beyond land ownership. The laws here are written here to give officials tremendous discretion - much broader than you find in, say, the EU and the US - and this, not surprisingly, creates a tremendous opportunity for graft and grossly unjst applications of the law.

 

It's at the root of many, if not most, of the complaints about the legal and regulatory system here.

 

Basically what has happended here is this: This senior Land Department official, in his comments to the Phuket Gazatte, illustrated a fundamental problem with Thailand's land laws. He put the spotlight on the ludicrious problems these laws create. No matter how you try to spin what he said, there is simply no way to avoid these problems..

[Gadfly]

The husband is providing money to the spouse in the form rent. If she doesn't otherwise have money to buy the property, according to what Director General of the Land Department said, her acquistion is unlawful and the title deed should be revoked.

 

Actually, if you take this to its logical conclusion, this applies to any Thai landlord that uses rent paid by Farangs to meet his mortgage payments. But for the rent from Farangs, he wouldn't have the money to buy the property. Thus, applying the Director-General's logic, the Thai landlord's ownership of the property is illegal. And since the landlord is presumably not married to any of the tenants, the separate property registration mentioned above doesn't work at all.

 

See that is the problem with this "rule". If anyone is worried about a "nominee" problem, they can always say they paid "rent" or describe the funding in some other manner. Faced with these problems, the Land Department has to either adopt draconian across the board policies that make no sense and lead to absurd results or selectively enforce this "rule" without any guidance, let alone regulations, and this creates the basic rule of law problems when a law like this is enforced selectively - namely abuse of power, corruption and unfair results.

 

TM suggests there is an easy fix with the marriage registration, but it doesn't solve the fundamenatal problem. Indeed, the Director-General is aware of the marriage registration requirement, and that it doesn't solve this "problem" since it doesn't apply to Farangs in unregistered relationships with Thais.

 

Actually, there is a fix, but I doubt that we will ever see it. Adopt more sensical laws that allow foreign ownership of land in Thailand (limits could be allowed). Unless that sort of fundamental change occurs, these sorts of problems with persist.

[khunsanuk]

Hi,

 

"Adopt more sensical laws that allow foreign ownership of land in Thailand (limits could be allowed)."

 

Right. Limited purchase to a max of 1 rai, within city limits for residential purposes only. That would likely sort out 99% of farangs wanting to buy a house here.

 

As you said though, ain't gonna happen.

 

Sanuk!