A superficies is defined as a conveyable and alienable right of interest in land to possess or get hold of buildings or constructions completed on or above the land of another person for a specific period of time. It is a real right over an immovable property granted by Thai law to both nationals and foreigners alike. The right is usually resorted to when the owner of the improvement is not the landowner.

 

The right of superficies granted to a person in Thailand lawfully separates ownership over the building and the land.

 

Right of Superficies in Other Countries

The right of superficies law in Thailand is based on the mainland real estate laws of European Civil Law. It is called “Droit de Superficie” in France, “Erbbaurecht” in Germany and “Recht van Opstal” in the Netherlands. All of these countries have the same principle as to granting the right of superficies.
Just like how other countries practice this right, superficies in Thailand creates the registered right to use and to own buildings, structures or plantations upon land belonging to another person.

 

Definition of Superficiarius

Superficiarius is defined as the person granted with the right of superficies. He or she is permitted to utilize the land and to possess the structures built upon the land even without obtaining ownership rights over the land itself.
If the superficiary or superficiarius dies, the right of superficies is terminated.

 

Creation of Right of Superficies
Under the Thailand Civil and Commercial Code, the right of superficies is used when one person builds any structure on a land he or she does not own. It is required that the agreement creating such a right emerge in writing that indicates the terms and conditions of the right. This must be registered with the Land Department Office. Registration brings about the presentation of the Superficies contract along with other significant documents including the land title deed, house registration book, ID cards and passports. The right of Superficies is deemed created upon recompense of the required transfer tax.

A right of superficies is a real property right in Thailand. This must be attached to the land or part of the land area covered by title deed.

 

Establishment of Rights of Superficies

The following are the three (3) ways that may be used to establish a right of superficies:

• A period of time up to thirty (30) years
• Period of life of the owner of the land
• Period of life of the superficiary or superficiarius

 

A right of superficies registered for a specified term is a conveyable and inheritable interest in land.

 

Laws Governing Superficies in Thailand

Sections 1410 to 1416 of Thailand Civil and Commercial Code govern superficies in Thailand. The following are some of the relevant provisions in the Code pertaining to superficies in certain situations.

 

• Acquisition of Superficies through Inheritance

Section 1411 of the code provides “Unless otherwise provided in the act creating it, the right of superficies is transferable and transmissible by way of inheritance.”

 

• No period of time has been fixed

Section 1413 of Thailand Civil and Commercial Code states that “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.”

 

• Failure of the Superficiary

Section 1414 of the Code provides “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.”

 

• Extinguishment of Right of Superficies

Section 1415 provides that “The right of superficies is not extinguished by destruction of the buildings, structures or plantations even if caused by force majeure.”

 

Section 1416 of the Code provides that “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 land at a market value, the superficiary may not refuse the offer except on reasonable ground.”

 

Superficies: Land Lease and Existing Building Set-ups

The right of superficies can be registered as a separate right or in combination with a land lease. Generally, superficies is used by someone such as a foreigner who gets hold of a lease interest in titled land and uses the land for the construction of a building. Superficies is a well-built supporting right to a lease agreement thus a person could lose his or her lease upon termination upon death but the superficies remains in full force and can be transferred to that person’s heirs.

If a building or a property is already existing, registration of a right of superficies will not be approved by the Land Department. However, this could be allowed after would-be superficiary have shown transfer of ownership of the structure separate from the land and after transfer fees and taxes have been paid. Moreover, the person could be dispensed from showing transfer of ownership if he or she can prove that he or she is owner of the house already.

 

Registration of Superficies

There are several steps to be followed in registering superficies in Thailand. These steps are enumerated as follows:

• It must be entered in the Land Department’s land registers.
• It will be noted by the competent authority (the local or provincial Land Department’s branch office) on the backside of the owner’s land title deed copy.
• As a registered property right, it follows the title (it is attached to the land, not the owner of the land) and is enforceable against any third parties. The right of superficies is not extinguished by transfer of ownership of the land.

 

Moreover, registration fees are 1.1% which includes a 0.1% stamp duty over the total consideration paid for the right of superficies. The registration will cost less than 100 baht per land plot if the superficies is granted without the exchange of value such as in the set-up of a land lease. Lastly, registration of a right of superficies will be allowed before construction or during the construction of a building, but an existing building must require first a transfer of ownership and payment of transfer tax.