Superficies in Thailand is an attractive property right for foreigners interested in using Thai real property. Since foreigners cannot own land outright, investors must look for alternatives to absolute ownership. The Superficies option is a strong property right that offers long-term protection to potential investors.
A superficies is a property right whereby a landowner will grant the use of their land for a specified period to the superficiary. Unlike a lease, a superficies agreement is an actual property right. While the lease focuses on the people who sign the contract, the superficies focuses on the land stipulated in the contract. Since it is a property right, the superficies must be registered with the Land Office.
The superficies in Thailand grants the superficiary the right to build or plant on a piece of land. The term of the superficies can be defined in two ways. First, the landowner may grant a superficies for 30 years. Once the 30-year period has expired, the parties may extend the agreement for another 30 years. The second option involves structuring the agreement like a life estate. The parties may agree that the superficies will last for the life-term of one of the parties involved, either the landowner or superficiary.
Another beneficial aspect of the superficies is that it is transferable. This is because it is a true property right. The superficiary may sell or transfer his interest at any time. Additionally, the superficiary may devise the interest via a will. The transferability of superficies makes it a unique property right for foreigners in Thailand.
For Married Couples: Superficies in Thailand is commonly employed among married couples where one spouse is Thai and the other is a foreigner. Since the foreign spouse cannot own land, the Thai spouse may purchase property and grant a superficies to the foreign spouse. This requires somewhat complex contractual maneuvering so a couple should consult an attorney before choosing to avail of this option.
Practical Matters: While a foreign spouse, in the case of a divorce, may retain the rights associated with superficies, this does not always work out as a practical matter. This is particularly true in the more rural regions of Thailand. While a foreigner may actually retain the legal right to use their spouse’s property, local family and friends may disregard this right and just refuse to cooperate. In order for the foreign party to protect this right, he may consider entering into a prenuptial agreement with his Thai fiancé where this right is provided for in definite terms.