Define Superficies Thailand - right of superfices agreement
Right of Superficies in Thailand is a form of easement granting the right to use another person's land for a specific purpose. Thai law describes superficies as the rights to use and benefit another person's land in favour of the beneficiary by giving him the right to own, upon or under the land, buildings, structures or plantations.
An agreement superficies Thailand is created by agreement with the owner of the land and may be created for a period of time up to 30 years or for the lifetime of the beneficiary or the owner. Superficies upon lands in Thailand are effective against third parties following their registration in the land offices land registers.
The right of superficies often runs simultaneously with a long term land lease. Superficies, contrary to land leases, may be granted without payment of rent or consideration. If rent is paid the registration fees at the land department are 1% over the total consideration and 0,1% stamp duty over the total rental amount. If no rental is paid the total registration fees at the land department do not exceed 100 Thai baht.
Superficies is governed in the sections 1410 to 1416 of the Thailand Civil Code (see below).
Facts about superficies:
- when registered in the Thailand land registers the right of superficies becomes a real burden on the land, or real right as opposed to contractual rights,
- Superficies can involve a general or specific portion of the land,
- The superficies is not affected by transfer of ownership of the land,
- The superficies for a period of time is transferable by inheritance, unless restricted in the act creating the right of superficies,
- The right of superficies must be registered with the land department to be enforceable by action, therefore the land must have a land title deed (Nor Sor Sam, Nor Sor Sam Gor or Chanote).
In short the superficies is secured over the land itself and grants the right to use and to erect and own a building upon another person's land for a period of time without obtaining ownership over the land.
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Thailand Civil and Commercial Code 'Right of Superficies':
Section 1410. 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.
Section 1411. Unless otherwise provided in the act creating it, the right of superficies is transferable and transmissible by way of inheritance.
Section 1412. A right of superficies may be created either for a period of time or for life of the owner of the land or the superficiary.
If it is created for a period of time, the provisions of Section 1403 paragraph 3 shall apply mutatis mutandis
Section 1413. If no period of time has been fixed, the right of superficies may be terminated at any time by any partner giving reasonable notice to the other. But when rent is to be paid, either one year's previous notice must be given or rent for one year paid.
Section 1414. If the superficiary fails to comply with essential conditions specified in the act creating superficies or, when rent is to be paid, he fails to pay it for two consecutive years, his right of superficies may be terminated.
Section 1415. The right of superficies is not extinguished by destruction of the buildings, structures or plantations even if caused by force majeure.
Section 1416. When the right of superficies is extinguished, the superficiary may take away his buildings, structures or plantations, provided he restores the land to its former condition.
If instead of permitting the removal of the buildings, structures or plantations, the owner of the land notifies his intention to buy the at a market value, the superficiary may not refuse the offer except on reasonable ground.
