Superficies in Thailand

Superficies in Thailand. In Thailand, land ownership by foreign nationals is restricted under the Land Code B.E. 2497 (1954). However, the Thai legal system provides for limited real rights over immovable property that can accommodate long-term use without conferring outright ownership. One such mechanism is the right of superficies.

Codified under Sections 1410–1416 of the Thai Civil and Commercial Code (CCC), superficies offers a way for an individual or juristic person to legally own buildings, structures, or plantations on land owned by another party. This right can be of particular interest to foreign individuals who are barred from owning land but wish to own immovable constructions.

II. Legal Framework of Superficies

A. Definition and Scope (Section 1410, CCC)

“The owner of a piece of land may grant to another person the right to own buildings, structures or plantations upon it.” — Section 1410, CCC

Superficies is a real right (in rem), distinct from leasehold or tenancy. It allows the superficiary to legally own and maintain physical structures on land without owning the land itself.

The right is registrable and inheritable, subject to statutory limits and contractual terms.

B. Key Characteristics

III. Procedures for Establishing Superficies

A. Required Documents

To register a right of superficies, the following are generally required:

1. Land Title Deed (Chanote) of the landowner

2. Written agreement specifying the grant of superficies

3. Identification documents of all parties (e.g., passports for foreigners, Thai IDs for Thais)

4. Consent of spouse if the land is jointly owned

5. Land Office registration forms and fee payment

B. Land Office Registration

The superficies right is not valid unless registered at the competent Provincial or Branch Land Office. Upon registration:

• The superficies holder’s name is entered on the back of the title deed

• The right becomes enforceable against third parties, including successors in title

Registration fees are typically 1.1% of the appraised value of the superficies interest, subject to local office discretion.

IV. Superficies vs. Other Legal Constructs

Superficies is stronger than leasehold in that it grants real, registrable ownership over buildings, making it especially valuable for foreign nationals constructing homes on Thai land owned by Thai spouses or companies.

V. Use Cases and Practical Scenarios

A. Foreigners Building on Spouse’s Land

Thailand prohibits foreigners from owning land, but not from owning structures. In a marriage where the Thai spouse holds title to the land:

• The landowner (Thai spouse) may grant the foreign spouse a registered superficies

• The foreign spouse may then construct, own, and maintain a house on that land independently

• The right protects the foreigner’s investment in the structure, even after separation or death of the landowner

Note: The land remains part of the Thai spouse’s separate property. Superficies does not confer control over the land, only the building.

B. Corporate Land Ownership

A Thai company owning land may grant superficies to a foreign director or related entity to allow for:

• Construction of offices or commercial buildings

• Legal clarity of asset ownership on corporate balance sheets

• Planning for asset separation in case of transfer or dissolution

C. Real Estate Development

A Thai landowner may grant superficies to an individual or entity wishing to:

• Construct and sell condominiums

• Operate structures separate from the land (e.g., warehousing, cell towers)

• Use land where sale is not legally or economically viable

In such cases, superficies is often paired with lease agreements or mortgage arrangements to structure control and financing.

VI. Termination and Legal Outcomes

Superficies terminates by:

1. Expiration of fixed term (max 30 years unless renewed)

2. Death of superficiary (if granted for life)

3. Mutual agreement or revocation clause in contract

4. Court judgment in case of breach or dispute

Post-Termination Rights

Unless otherwise agreed:

• Ownership of the building reverts to the landowner unless the building is removed

• The superficiary may be entitled to compensation or removal rights, subject to contract

• If structures remain, the landowner may acquire them without compensation under certain interpretations (Section 1415)

Contractual drafting must address these outcomes explicitly to avoid default application of the CCC.

VII. Taxation and Fees

There are no annual taxes on superficies per se, but the owner of the land or building may be subject to:

• Land and Building Tax Act B.E. 2562 (2019)

• Local development taxes, depending on usage

VIII. Drafting and Legal Considerations

A well-drafted superficies contract should address:

• Precise scope of the right (e.g., right to renovate, lease, mortgage the structure)

• Duration and renewal provisions

• Removal rights and obligations upon termination

• Compensation clause (if applicable)

• Transferability and inheritance terms

• Dispute resolution clause (court jurisdiction or arbitration)

Given that superficies interacts with family law, tax law, land law, and succession, it is advisable to seek legal counsel to customize the agreement to the parties’ intentions.

IX. Conclusion

The right of superficies provides a legally secure and flexible means for non-landowners—particularly foreigners—to obtain real property rights in Thailand. While it does not grant land ownership, it offers:

• Full ownership of buildings on another’s land

• Registrable and inheritable real rights

• Protection of investment without violating land ownership restrictions

However, its effective use requires meticulous drafting, proper registration, and awareness of succession and termination risks. Superficies is not a universal solution but, when correctly implemented, it serves as a critical legal tool in Thailand’s complex property landscape.