Superficies is a real right known in most of civil law countries (like in France, Switzerland,Thailand, etc). Even if foreigners are normally not allowed to own land, they can be granted Superficies under Thai Law. In Thai, it is called “สิทธิเหนือพื้นดิน” (See Tee Nuea Tee Din)
The Thai Commercial and Civil code mentions:
“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.”
So under Thai law, the owner of land can grant this right to a person called a superficiary (can be a foreigner), to own any construction or structures built on upon a land.
This right can be created either for the life of the grantor or of the beneficiary.If superficies are made for a limited period of time, the maximum length can’t exceed 3O years. (clause 1412 of the Thai Commercial and Civil Code).
That right can be renewed at the end of the contract if both parties agree. Again, the renewal must not exceed 30 years. A right of superficies must be registered at the Land Department to bind third parties. The Land Department will ask some registration fees depending how your structure your contract.
Superficies can be combined to a lease agreement. This could be an excellent protection for a foreigner wanting to secure a real estate investment. However, most land department in Thailand will only allow you to register one of these rights. The other will only be in a private agreement and not registered.
To register this right, you must have a title deed like a “Nor Sor Sam” or a “Chanotte”. You can’t register a real right on a “Por Bor Tor 5”. You can consult our informative website at www.thailawonline.com to know more about Thai Law.
To find out even more on this subject, watch our explanatory video below about the Land Department: