PHUKET – On December 17, 2014, the deadline for an agreement to settle a debt for a troubled condominium project in Phuket passed. The developer, Napawan Co. Ltd, failed to pay a debt owed to the Industrial and Commercial Bank of China. The debt was secured using land titles and homes that were leased to foreign lessees.
The developer promised to provide the lessee freehold title in the property once the project was completed. When the developer defaulted on the debt, the lessees were shocked when they found out that they might be evicted from their homes.
The experience of the lessees who may lose their home and investment is an example of why due diligence is required when purchasing property. It is important for purchasers to be aware of the potential legal issues with their property purchases. For foreigners attempting to purchase or lease property or buildings in Thailand, it important to understand Thailand’s restrictions on foreign ownership of property.
Due Diligence goes beyond the terms of the contact. It is necessary to complete a title check, to physically inspect the property, review government permits, and review liens on the property. In addition, they need to complete a background check on the property developer and seller. The complex method of registering property creates situations where fraud can easily take place.
The Phuket Condominium project illustrates the importance of a title search prior to purchasing property or entering into a long-term lease. Condominium development projects may have to go heavily into debt to start development. It is necessary to ensure that the property does not have any liens or mortgages on the property. Liens or mortgages attached to a property may make the property unsellable.
Before placing a deposit on the property, buyers should search and review the legal documents pertaining to the property at the government land office. Each type of land title confers different property rights. There Tor Bor Tor Hok which was essentially squatter claims to a property to Chanote Title which is a true title deed that allows a property to be transferred or sold.
There are many other types of property rights in between. In addition, there may be easements or appurtenances that confer rights to third parties over portions of the property.
An independent surveyor should inspect the property to see if the property is connected to a public road. The boundaries of the land should be clear and the title deed accurately reflects the actual boundaries. Access from public roads to the property will affect the property price. If there isn’t a direct access to a public road, the owner can legally force adjacent property owners to provide access but there will be legal costs and problems with neighbors.
In addition, there should be a review of the local zoning ordinances to see what will be built in nearby lands. A view of the beach or mountains might be blocked by a planned tall resort hotel, a large super mart, or a loud highway.
The property value for property with an uninterrupted view of the ocean or the mountains may decline if the view is blocked.
Building Permits Review
It is important to ensure that the developer or seller has approved building permits and permission for development. Due diligence requires a review of the government filings to ensure that the type of development does not conflict with local restrictions in the area.
There have been recent news of condominium complexes and resorts being torn down because they encroach on national parks or government protected lands. An Environment Examination Report of the property can confirm that the property is being developed in accordance of environmental regulations.
Seller Background Review
The condominium project in Phuket is an example of the dangers of a developer who is not properly funded. There are also circumstances where people claim to own property which they do not actually own. In order to reduce the potential for fraud or abandoned projects, it is important to review the credentials of the seller or property developer.
The individual sellers and developers must be identified. If the developer or seller is a corporation, it is important to review the credentials of the primary shareholders of the company. The property developer and seller’s financial and criminal background should be checked.
The property owners and developers names should be crossed checked with check names in court records for ongoing or past litigation. Litigation against the property developers and sellers is a sign of past or current problems.
Due diligence requires a visit to the seller or property developers past projects or sales. The buyer should review the maintenance condition of the project and interview the current residences for any problems with the seller or ongoing issues with the property. The buyer should review the satisfaction level of the current owners. While not all projects are perfect, the investigation may reveal situations which can help the buyer bring up potential after sale concerns during the contract negotiation.
Thai Property Laws
Foreign ownership of property is complicated. The laws create hurdles for non-Thais to own property in Thailand. Under Thai law, foreign nationals are not allowed to outright own land in Thailand. The foreign national may lease the property but the lease cannot exceed thirty years.
If the terms of the property contract says the lease is more than thirty years, the term will be reduced to thirty years. The lease can contain a renewal option for another thirty years but there may be problems with the renewal.
There may also be complications with family law and ownership of property in Thailand. When the foreign national is married to a Thai citizen, there may be some benefits during the marriage and problems if there are a divorce.
The property can be purchased in the name of the Thai spouse but if there is a divorce, the foreign national may lose the property. There will also be issues with inheritance if the foreign national wants to transfer property such as a condominium to a non-Thai person.
Before embarking on the purchase of Thai property, it is in the buyer’s best interest to seek counsel of a disinterested English speaking Thai lawyer who can discuss Thai laws and regulations as it pertains to the buyer’s specific situation. In addition, a Thai attorney can review the contract terms and negotiate with the seller or property developer for changes to the purchase contract.
A property contract is required to be in Thai. An English translation is allowed but the Thai version controls in court.
Purchasing property in Thailand is a complex process. If a foreign national wants to purchase property, the buyer should seek the assistance of a non-interested, knowledgeable, and experienced professional to navigate them through the process. Be careful of guidance by someone who has a personal interest in the sale of the property. They may not have your best interest in their mind.
By Mr. Robert R. Virasin
Our licensed Thai lawyers at Siam Legal International in Bangkok have valuable knowledge in dealing with government agencies in Thailand, and this experience is of great importance when dealing with Thai legal cases and investigative service.