Legal information and Laws related to purchasing Real Estate in Thailand
What happens next after you have found your dream property in Thailand, a spectacular piece of land on Phangan Island for example. You are now ready to go ahead but what about the current Thailand real estate Laws? One of the most common questions we are asked by new foreign investors is, Can I buy land or property in my name? and if so, what is the most secure and practical way to do so for the Thailand real estate market?
Thai law, in general, prohibits foreign citizens from buying land in their own name but you can obtain the rights of ownership of a building on the land or even lease the land over a long period. Condos are in high demand now as they can be owned freehold. Remember ownership of land is governed by the Land Code and as a foreigner the Foreign Business Act also applies if you are considering to set up a Thai registered company in order to buy land see below.
However there are still some various exceptions to the law, as well as methods for foreigners to acquire rights to land and property in Thailand. This is where we at A1Real.com will tell you the truth and always recommend buyers to consult an experienced and independent reputable law firm.
Here is an example of standard Property Legal Services offered:
1. The lawyer will conduct a Due Diligence Search on the land with the title deed at the Land Department to check status of properties, legal ownership, lien or encumbrance, or mortgage, and report findings
2. Prepare a draft and review Sales and Purchase Agreement in Thai and English
3. Negotiate, revise, finalize the sales agreements if necessary and assist with international money remittance such as obtaining Foreign Exchange Transaction form (Tor Tor 3)
4. Register the title deed and ownership transfer at the Land Department
They should also provide you contracts and agreements in both English and Thai languages.
Four options worth considering when buying property and using a independent reputable law firm to advise you.
Freehold ownership -condominiums
Now the most popular option when purchasing property in Thailand. In a condo building a foreigner can own 49% freehold of the total floor area. example 49 out of 100 units for sale in a building can be owned by foreigners. Or buyers can lease or use a Thai company. After the condo has been registered the condominium juristic body (all the co owners) own and have interest in the land and common areas.Each owner will receive a unit Title or detail on the land Title. Foreigners only have to purchase the condo in foreign currency T/T by bank from a overseas bank account and collect a FET Form (Tor Tor 3 ) to show as proof.
A leasehold agreement is fairly easy to set up. The land, with or without property, can be leased for 30 years maximum, some agents and sellers say they can renew or extend the lease period for you such as renewable 30+30+30 years. However you need to consult a Law firm about this practice as current laws do not ensure this extension can be enforced. However this can be set up with insurances just as good as Freehold. Please note that leases of more than 3 years are required to be registered with the Land Department, and these can be set up for leasing land on which to build properties, such as villas or houses.
Freehold ownership of land with a Thai registered company
This practice is slowly being fazed out by the government who are trying to create a safer and clearer guidelines for buyers. However it is still the most common way foreigners will purchase property as this offers more flexibility than leases because of finance and resale advantages. If the Thai company is correctly set up with foreigners not owning more than a max 49% however 39% has been suggested and the process has been structured with real/genuine Thai shareholders who can prove they have invested then this is still a legal method. Owning a registered company in Thailand does bare certain responsibilities such as filing an annual tax return. Normally if the company was only set up for land investment then a minimal annual auditing fee is paid to an accounting firm who will submit your annual fiscal report. There are advantages to having a Thai registered company as you can apply for a work permit, apply for a 1 year working visa, register vehicles, and apply for loans and finance.
Our suggestion to you is to use the service of a reputable independent law firm about the above options. They will advise you on all requirements and procedures related to real estate in Thailand. We can recommend some law firms which have no commercial interest in the Koh Samui and Phangan property markets. It is important for you to get the correct advice about the law ruling these important issues.
Other Real Estate legal info
Marrying a Thai spouse
The law also allows for a Thai person with a foreign spouse to buy land or properties in Thailand. Before registering the land at the Land Department, the couple may be asked to sign declarations, that the funds for the property came solely from the Thai spouse. This will in effect, result in the foreign spouse waiving his/her rights on any real estate. Such declarations may become problematic in a divorce case as the foreign spouse may have difficulty proving that the land was marital property. To prepare for such an event, a skillfully-drafted pre-nuptial agreement or loan agreement may be useful.
With significant investment of funds, foreigners may be allowed to own a limited amount of land under the property law of Thailand. Some foreign companies seek and obtain the approval of the Board of Investment (BOI) to purchase land for a limited period. This option, however, is not available to the vast majority of foreign nationals seeking to obtain a second or retirement home, villa or investment in real estate because of the legal restrictions involved. As a result, other options must be examined.
Issues related to American citizens
An American can own 100 per cent of a company registered in Thailand under the Amity Treaty. However this does not enable Americans to use an Amity Treaty company to buy land or properties.
Land Title Deeds
Below are the main types of land documents or title deeds you may come across which are classed as rights of possession or rights of ownership. We recommend that you acquire land that gives you rights of ownership as there are certain advantages. These include that the land can be sub-divided into smaller plots.
For example, you may want to start an environmental friendly Koh Samui villa project. However planning permission has to be applied for that will conform to the new zoning laws introduced to handle the growing Samui property market. And the other advantage to a rights of possession land document allows any such legal acts to be carried out immediately on the land.
NOR SOR 4 JOR (Chanote)
Titles are issued by the Land Department and accurately surveyed and plotted using GPS technology in relation to the national survey grid. They are also marked by unique numbered posts set in the ground. This is usually the most sought after title, especially for first time foreign investors Thailand real estate. However we also strongly recommend other titles such as the Nor Sor 3 Gor and the older Nor Sor 3.
NOR SOR 3 GOR
These titles are less accurately measured and surveyed. Parcel points are used according to an aerial survey to set the points and land area. A scale of 1:5,000 is used, as with the Chanote Title. The boundaries are recorded in relation to neighbouring plots and, as with the Chanote, it is possible to sub-divide the land.
NOR SOR 3
This is an older title and, unlike the Nor Sor 3 Gor title, is less accurately surveyed as no parcel points are used, only a floating map. This can cause problems with verifying the land area and size.
Rights of Possession
Two of the main title deeds in this category are Sor Kor 1 and Por Tor Bor 5. These titles are basically possession rights and are generally used for farming in Samui and Phangan.