LEGAL INFORMATION
Foreign Ownership of Land
 The rules regarding foreign ownership of land in Thailand are actually quite straightforward. Foreign individuals or foreign owned companies are not allowed to own any direct interest in land, unless an exception to the rule applies. Thai Law may restrict foreigners from buying or owning land, however it is currently possible in the following circumstances:
- The Board of Investment (BOI) and the Industrial Estates Authority has the power to permit promoted companies to own land for the purpose of the promoted business.
-Permission can also be granted under the Petroleum Act for use in approved projects.
- Banks and financial institutes that have become foreign owned.
- A foreigner who invests at least 40 million Baht in authorized securities in Thailand may buy up to 1 rai (1,600 m2) of land for residential purposes.
These exceptions do not cater for the majority of foreign people that are looking to invest in Thailand. The following are legitimate exceptions to the rules and therefore legal ways in which a foreigner can purchase land or property.
Buying Leasehold Property
 Foreigners are allowed to lease land on short or long term contracts. The leases may be registered for up to 30 years and they often have a renewal clause for additional periods of 30 years. This is completely acceptable and the foreigner may have very broad rights to the land throughout the duration of the lease. However, it is important to note that the renewal will, quite possibly, not be enforceable, in law, against a transferee lessor.
It is important to understand that, however broad these rights may be, the foreigner will at no time own any interest in the actual land.
For long term leases (over 3 years) the lease agreement must be registered at the Land Office. This agreement is then shown on the land title papers. And it protects the terms of the lease and the rights of the tenant for the length of that lease (even if the land is sold to a third party). Failure to register the agreement will result in the terms of the lease only being valid for the initial 3 year period.
A recent change in the law now allows leases for industrial or commercial purposes to be for a term of up to 50 years. This again can be renewable for further periods of 50 years.
Buying Freehold Property through Company Ownership
 A Thai Limited Company can purchase land as a juristic person. Therefore, if a foreigner is a director and a shareholder of a Thai Limited Company, they can control land through the company. The company must be allowed to own land and invest in land in accordance with its objectives and Articles of Association. Foreigners can hold a maximum of 49% of the shares in a Thai Limited Company, the balance must be owned by Thai shareholders (each company must have a minimum of 7 shareholders). The foreigner can, however, be issued with a different category of shares from the Thai shareholders giving the foreigner superior voting power, allowing them to have control of the company and therefore control of the land. In order to be commercially legitimate, the Thai shares ought to be given some preferential right, such as a preferential dividend payout right, in return for their weaker voting power.
If the company is set up for the sole purpose of holding land then there is a risk of it being closed down if it is considered dormant. But if the company is trading and paying taxes, then it is contributing to the Thai economy and that risk is greatly reduced. It is therefore important that annual accounts are completed and all the required taxes are paid on time. "However, recent regulatory changes have had an impact and currently proposed legislation may also affect how companies with non-Thai shareholders and/or directors are structured. As always, competent legal counsel should be sought prior to investing in any Thai company."
Ownership of Condominiums
 The rules concerning the ownership of condominiums in Thailand are similar to those concerning the ownership of land.
Condominium units have a type of title deed and their ownership is transferred at the Land Office. Since each unit carries with it a proportionate ownership of the land, foreign ownership is strictly controlled. Foreigners as, natural persons, foreign owned Thai companies, or foreign companies may own up to 49% of the area of a condominium project.
For those who do not have permanent residence permits, there must be proof that the money used to purchase the unit was brought into Thailand from abroad. Generally, this precludes the foreigner from obtaining local financing to fund the purchase. However, if the foreigner is employed in Thailand, they can use monies earned through their employment in Thailand if the funds are held in a non-resident account. Separate rules apply to persons in BOI promoted companies and those with full permanent residence certificates.
In any event, condominium units may be leased by foreigners in the same way that they may lease land.
Transfer of Ownership
 To transfer the ownership of land or property, a written contract must be made before the Land Department or Amphur (District Office). The transaction is then recorded on the title deed or other land title document. All supporting documents are kept in the official records at the Land Office. (In leasehold situations where the lessee wishes to transfer the lease right to a third party, a lease registration fee and stamp duty will all be applicable.)
Mortgages
 A mortgage can secure funds loaned by foreigners to Thai nationals or Thai juristic entities. The fee for registering a mortgage is 1% of the amount declared in the mortgage agreement. Proof must be provided that stamp duty for any loan agreements has been fully paid.
Land Title Deeds
There are several different land titles in Thailand. Each title represents and denotes the holder’s rights to the land.
The following is a list of the most common:
The title deed or Chanote.
 This title deed contains a full description of the land, such as the size, the exact boundaries, marking posts and a history of all registered transactions concerning the land. The boundaries on this land have been plotted by satellite images and are accurate.
This is the only title that gives full ownership rights to the land; all the other land titles only give rights of possession. This is the equivalent to the title deeds that are common in Europe and is the highest land title available in Thailand.
The confirmed certificate of use or Ngor Sor Saam Gor.
This is similar to the Chanote title deed. It certifies that the named person has the right to use the land, that all the requirements of a title deed (Chanote) have been met and that the issuance of the title deed is pending deeds being issued for that particular area.
It is therefore possible, in most circumstances, to upgrade this title to a full Chanote Title Deed.
The Chanote and Nor Sor Saam Gor are the only titles over which a registerable right of ownership or lease can exist and are, as such, the only ones that a prudent or inexperienced foreign investor should consider purchasing.
The certificate of use or Ngor Sor Saam.
 This is similar to the confirmed certificate of use (Nor Sor Saam Gor) however not all the requirements of a title deed (Chanote) have been met and the right of use has not been confirmed. Before the transfer of this land to a third party, a notice of intent must be posted for 30 days. In some circumstances this title can be upgraded directly to a Chanote, however this can only occur in certain areas as marked on a map held by the Land Office.
The certificate of possession or Sor Kor Nung.
This is recognition of possession only. There are no rights associated with this possession at all.
Other land titles do exist, but the above are the most common.
Property Taxation
Building and Land Tax is imposed on the owners of a house, building, structure or land, which is rented or otherwise, put to commercial use. The tax rate is 12.5% of the actual or assessed annual rental value of the property (the annual value is the amount that a property may reasonably gain in rent for one year, if the property is offered for lease).
A Local Development Tax is imposed upon any person who either owns or is in possession of land. These tax rates vary according to the appraised value of the property, being determined by the local authorities. There is an allowance granted for land that is utilised for personal dwellings. This allowance differs according to the location of the land.
Land Office Fees
Transfer fee = 2% of the land office appraised value of property.
Withholding Tax = 1% of the land office appraised value or the actual transaction value of the property, whichever is higher, if the Seller is a corporation.
There is a sliding scale based on land office appraised value if the seller is an individual.
And
Stamp Duty = 0.5% of the land office appraised value, or the the actual transaction value of the property, whichever is higher.
Or
Business Tax = 3.3% of the land office appraised value or the the actual transaction value of the property, whichever is higher.
If the property has not been transferred for five years, or more, then stamp duty is payable. If the property has been transferred within the last five years, then business tax, and not stamp duty, is payable. The actual transaction value of the property is currently always higher than the land office appraised value of the property; however, for purposes of the stamp duty/specific business tax, the law requires that the higher of the two must be reported.
All taxes are paid at the land office and who pays is a matter of negotiation between the buyer and the seller. It is usual for the buyer and the seller to share the costs and pay 50% each.
Property Valuation
Property valuation in Thailand is done on a fairly ad-hoc basis at present. So it is very difficult to give accurate advice on the valuations of properties or land. A general rule of thumb used by established Real Estate Agents would be to work out the cost of the land, then add the building costs of the house and then add 40%. However this is only a guide and many sellers will look to market their property at a higher value.
Samui has a booming property market and houses are generally worth what someone is willing to pay. Many purchasers are from parts of the world where land and houses are far more expensive and therefore they may be willing to pay more than the market value if it is within their budget. This can subsequently raise the market value of the neighbouring land and houses.
Land Due Diligence Checklist
The due diligence process should be carried out by your lawyer and should include the following in their report to the client:
- The translation of the land title deed into English.
- The results of an investigation into the land title (Chanote/Nor Sor Saam Gor)
- The results of an investigation into any mortgages or charge registered against the land and recorded on the title deed.
- The results of a physical inspection of the land.
- The results of an investigation with the Land Office re: Land Taxes, registered value, registered powers of attorney, registered leases and the previous transfer date of the land.
- If the land is owned by a developer then the following should also be investigated and reported: the company registration date; its registered share capital; changes in the company name in the last 3 years; the possession of a valid building permit; a land allocation permit; the title to the land; and how many plots have been allocated on the land.
- The results of a review of any applicable law, such as zoning or building regulations, which might affect the use and control of the land.
Land Survey
If you own land on a Chanote title deed then you can use a private certified surveyor to sub-divide the land, following the approval of the Land Office. However with any other land title the Land Office must complete the survey of any land to be sub-divided. This can take in excess of one year to be completed.
The legal advice and information in Samui Property Info is supplied courtesy of:
115/49 Moo 6,
Tambon Bophut, Koh Samui,
Surat Thani 84320.
Tel: 0 77484510
Fax: 0 77427686
Email: samui@legalthai.com
Two Pacific Place, Suite 2100,
142 Sukhumvit Road, Klongtoey,
Bangkok, 10110.
Tel: 0 23052300
Fax: 0 26532163
E-mail: info@legalthai.com
Website: www.legalthai.com |
