One aspect of Thai real property which seems strange to most of the Western world is the concept of superficies.

One aspect of Thai real property which seems strange to most of the Western world is the concept of superficies.  It is a distinctively Thai real estate term which, by its uniqueness, is a source of amusement among English law offices and firms.  The foreigner who wishes to buy a condominium unit in Thailand has to contend with this amusing albeit real concept of the right of superficies.

What is the right of superficies?

The right of superficies is granted on any individual—native or foreign—to own any structure, building or plantation on a particular piece of land for a maximum period of up to 30 years.  Such lengthy duration can only be interrupted when either the owner of the land or the superficies dies before the maximum period.

What are the benefits of the superficies?

When one is granted the right of a superficies, he enjoys the following legally-endowed privileges:

• The right of superficies can be granted to a foreigner.
• The superficies possesses an inalienable right to the property for up to 30 years.
• The superficies has the privilege of owning a fully-transferable property, that is, said property can be transferred to legal heirs for the applicable period.
• This right provides a foreigner an easier alternative to absolute property ownership which is quite difficult to obtain nowadays.
• The right of superficies is very helpful to the foreign buyer who has a Thai local for a spouse for then the Thai spouse can simply buy a condominium unit on a freehold basis and apply her husband for the right of superficies.

What are the disadvantages of the right of superficies?

Probably the biggest downside to the concept of superficies is its lack of acceptance among people.  In the history of Thai real estate, granting of the right of superficies is far from being the norm.  In fact, it can be quite hard to find developers and sellers who are willing to grant foreign buyers this right.  It is often the case that sellers wish to transfer all rights and responsibilities of the property so as to do away with paying annual taxes. On the side of the buyer, he may also have misgivings about the odd concept of owning a less-than-absolute right to the property.  The average buyer would much rather obtain a “real” and not just an “abstract” right.

How does one register to earn the right of superficies? Similar to other laws on real property, the right of superficies can be obtained by applying and submitting necessary documents to the Land Office.   

Requisite documents include the land title deed, house registration book, ID cards and passports.  Tax payment must also be made in the form of a 1.5% Transfer Tax.