Superficies in Thailand

If you are looking to secure land in Thailand for yourself and build a home or other structure on it for personal or business use, one of the easiest ways is to lease the land and obtain a right of superficies. With this legal arrangement, you have the freedom to own structures on Thai land without being the actual landowner. However, understanding superficies in the context of Thai law before signing a contract is crucial for avoiding fraud and legal issues.

This page will explain what a superficies is, how this right is viewed under Thai law, how to benefit from it as a foreign national, and how to acquire one.

What is Superficies?

Superficies is a legal right that allows you to build and acquire ownership rights to a building or structure on land that’s owned by someone else. While the landowner remains the sole owner of the land, you can legally own most types of buildings you have established on it.

Foreigners cannot buy Thai land or houses legally, and can only acquire freehold rights over a Thai condominium.  However, a right of superficies enables you to own certain restricted properties by enabling you to build a Thai house or a villa on leased land and own the structures outright.

Using Superficies as a Foreigner in Thailand

As the superficiary, you must be legally granted the right of superficies from the landowner, which is done through a written and registered agreement. Much like a usufruct, once you have been granted this legal right, you are held responsible for keeping the land in good condition. Superficies can last for a temporary period of time or for an entire lifetime, depending on what you and the owner agree on.

After you and the landowner reach an agreement, the superficies must be registered with the Thai Land Department. If there is no time period, you or the original owner can choose to terminate the legal right at any time, as long as there’s a reasonable notice period (if rent is involved, at least 1 year's notice must be provided).

Upon expiry, you may remove the structures and must restore the land to its original condition. However, if the original owner wishes to buy the building you have built at market price, you’re obligated to sell it unless you have reasonable grounds to refuse the offer.

How to Transfer Superficies in Thailand

Under Section 1411 of the Thai Civil and Commercial Code (TCCC), you can transfer the right of superficies to a third party, unless the agreement states otherwise. Unlike usufructs, superficies can also be inherited by a legal heir in the event of the superficiary’s death.

Once a superficies has been transferred to a third party, they will become liable for any damages they have caused to the land. The original landowners can also sue the new superficiary if they cause significant harm to the land.

Superficies Risk in Thailand: What Can Go Wrong?

There are also certain risks involved with holding superficies in Thailand. If you fail to adhere to any conditions outlined in the agreement or fail to pay rent on the land for 2 consecutive years, your right of superficies may be terminated. If the agreement states that the superficies is tied to the life of the landowner, it may be terminated upon their death, thereby terminating your right of use.

While there are no restrictions against registering superficies at the Thai Land Department, approval is at the discretion of the land officer. If you do not complete the process correctly or if any documents provided are inaccurate or incomplete, the officer may reject your proposal to register the superficies. Unregistered superficies or ones obtained in the wrong manner are unenforceable and can lead to a legal dispute, which you are likely to lose considering your right has no official recognition.

To avoid any adverse legal consequences related to superficies, retain a Thai Property Lawyer to assist you with drafting, reviewing, and registering your superficies agreement. This will ensure that not only will the agreement meet Thai legal standards, but also that the lessor has not included any unfair terms in your agreement that could negatively impact your usage rights.

Professional Assistance With Superficies in Thailand

Getting a registered superficies offers several legal and practical advantages if you want to own a home or business facility in Thailand under your name, but securing one can be challenging without the right legal guidance. To obtain this legal right efficiently and in compliance with Thai law, reach out to Siam Legal’s property team for professional assistance.

As a full-service law firm with over 20 years of expertise in helping foreigners secure real estate in Thailand, our lawyers can provide the legally sound and secure way of leveraging superficies while ensuring compliance with Thai law. Our legal team manages all critical aspects of the process. This includes reviewing the superficies agreement to ensure fairness, conducting a title search to confirm the landowner’s eligibility, and facilitating registration at the Land Office.

Contact Siam Legal and book a consultation with our lawyers today to avoid real estate restrictions on foreigners and build the home of your dreams without fear of legal issues.

Superficies in Thailand FAQs

Can You Lease Land as a Foreigner in Thailand?

Yes, while foreigners are restricted from owning land under Thai law, there are no restrictions on foreigners entering into leases. Land leases may be short-term or long-term, lasting up to a maximum of 30 years, with the option to extend.

Can You Build a Villa on Leased Land in Thailand?

Yes, if you carry a valid construction permit and the lease remains valid, you can construct a villa. While Thai law generally forbids foreigners from purchasing structures, this constitutes an exception, as the structure is constructed by the lessee and therefore may be legally owned in your name.

What is the Difference Between a Lease and a Superficies?

While sharing some similarities, a leasehold agreement and a right of superficies are very different from one another.

• A superficies grants the holder greater rights to make full use of the structure, while leases only enable you to rent it and are more limited.

• Superficies can either last for up to 30 years or for an entire lifetime of either the superficiary or the landowner. Leases may last up to 30 years, with the possibility of renewal.

• Superficies must be registered at the Thai Land Office before they can be legally enforced. Only leases that are valid for 3 years or more need to undergo registration at the land office.

You will need both a lease and a superficies to legally build and own a structure on Thai land.

Can a Lease be Terminated in Thailand?

Yes, if you fail to comply with the conditions of the agreement, the lessor may terminate the lease. If this happens, the lease term ends prematurely, and you may be unable to recover the deposit paid. Unless otherwise stipulated as inheritable, the lease will terminate upon the death of the lessee.

Should your lease be voided in this way, any structure you built on it will still belong to you, but you may have to demolish it if it cannot be sold.

Contact Us

If you have any questions regarding superficies or property issues that need to be addressed, feel free to contact us.