Superficies Agreement in Thailand

A Superficies Agreement in Thailand

A Superficies Agreement in Thailand, known as สิทธิเหนือพื้นดิน (Sitti Neua Peun Din), is a specialized property right that legally separates the ownership of the land from the ownership of any buildings, structures, or plantations upon or under that land.

Description and Legal Basis

• Definition: It is a real right (jus in rem) granted by the landowner (Grantor) to another person, known as the superficiary (Grantee), allowing the superficiary to own and maintain constructions on the land for a specific duration or the life of a party.
• Legal Citation: The right of superficies is governed by the Thai Civil and Commercial Code (CCC), Sections 1410 to 1416.
• Duration and Registration:
  • It may be granted for a period of time, which is registrable for a maximum of 30 years.
  • It may also be granted for the life of the landowner or the superficiary.
  • To be legally enforceable against third parties (such as subsequent purchasers of the land), the agreement must be in writing and registered at the local Land Department office, where it will be noted on the back of the land’s title deed (e.g., Chanote).
• Documentation: The agreement and associated registration forms are typically prepared and executed in three copies which are bilingual (Thai-English) for clarity and registration purposes.

Benefits for Foreign Nationals

The Superficies Agreement provides a crucial and legally robust mechanism for foreign nationals to secure long-term property rights in Thailand, despite the general prohibition on foreign land ownership under the Land Code.

1. Separate Ownership of House/Structure:
   • Core Benefit: It allows the foreign national to legally own the house, building, or structure constructed on the land, even though they do not own the land itself. This directly addresses the restriction on foreign land ownership.
   • Citing Law: Section 1410 of the Civil and Commercial Code specifically states: “The owner of a piece of land may create a right of superficies in favour of another person by giving him the right to own, upon or under the land, buildings, structures or plantations.” This legal separation ensures the structure is an independent asset owned by the foreigner.
2. Security of Investment:
   • As a real right (jus in rem), once registered, the right of superficies is binding not only on the current landowner but also on any future purchasers of the land, providing strong legal protection against eviction for the agreed term.
   • The right is not extinguished by the destruction of the buildings (CCC Section 1415), ensuring the right to rebuild or maintain the structure remains for the duration of the agreement.
3. Transferable and Inheritable:
   • Unless restricted by the agreement, the right of superficies is generally transferable to a third party and transmissible by way of inheritance (CCC Section 1411), allowing for estate planning.
4. Long-Term Control:
   • The maximum 30-year term provides long-term security, which is often considered stronger when paired with an existing land lease (also 30 years), offering a combined structure that maximizes a foreigner’s control over the property. Granting the superficies for the life of the superficiary can offer even greater long-term security.

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