Tagged in: Thailand Condominium Act

Progress In Preparing The Draft Condominium Statute

Progress in preparing the draft regulations under the Thailand Condominium Act amended in 2009 with the purchase and sale agreement is almost completed and will be presented to the meeting of the Council of Ministers (Cabinet) in August 2011. The essence of the contract will be to declare the act as another measure to protect consumers, which requires that any project or condominium units which will be open to the public for sale must be certified or approved by the Environment Impact Assessment Committee (EIA) and must have a valid license for construction.

The framework of this contract will provide fairness for the buyer. Many previous condominium projects were sold or booked but without passing the EIA assessment first which meant that there were many legal cases being brought against developers.

The legislation drafting committee has now approved Condominium Act law. Preliminary determination of the initial height from three stories up and the height of the building will be based on the building control act which regulates the rules or details already. Room sizes, for example, must have a minimum usage area of 20 square meters and a bathroom included. However, the editing of the various definitions will take a year to complete and make enforceable.

The new combined Bangkok city plans to include FAR (Floor Area Ratio) for land use along the metro system includes both open-for-business and under-construction projects and investment projects in the planning stages. According to the combined Bangkok city plan which is considering updating and prepare to announced a new city plan enacted for 2012. By taking lessons and shortcomings of the previous land use plan for revision as well as the growth rate of both residential and commercial development including the number of people using the area as a key element in determining the future layout of urban development.

The consideration of the new Bangkok city plan will increase the use of land along the entire metro route which is currently in service and currently under construction according to master plan and investment plan.

This is because the demand for land along metro lines is high from both investors interested in investing in all types of commercial ventures including shopping centers and low-rise housing and high-rise housing especially in the inner city and central areas and the demand of living near working areas and shopping centers. The city of Bangkok will increase the FAR ratio or total building area per land area to be able to construct more on the same piece of land as 1-2 times.

Apart from that, areas in Bangkok inner city and Bangkok middle areas that have the overhead train can be able to develop more high-rises with land high prices and are likely to be considered worth the investment of further rail systems including Bangkoks outer areas stations.

However, BMA has planned to raise the ceiling of a maximum FAR10: 1 to FAR 15:1 especially in some of the red zone area such as some part of Silom will also increase In descending order according to their suitability and land use. increasing the FAR to 11:1, FAR 12:1, FAR 13:1, FAR 14:1 and FAR15: 1. However, it must depend on the city planning committee for approval.

Buying A Leasehold Condominium In Thailand

Foreigners may under the Condominium Act own up to 49% of the units (in floor space) in a condominium complex in Thailand. The remaining 51% of the units must be owned by Thai nationals.

In the Thailand resort areas such as Phuket and Pattaya condo developments and sales are primarily aimed at foreigners. The 49% freehold units in a condo project are the first units to sell, but the remaining 51% units in the Thai side of the condominium are tough to sell. There is no interest from Thai nationals in these tourist resort condos and the remaining condo are often sold under a leasehold to foreigners. In the end part of the condominium will be owned freehold and leasehold by foreigners.

Buying a leasehold condo in Thailand

Whether you buy a condo leasehold or freehold the purchase price remains the same and foreigners often buy leasehold condominiums in Thailand because the leasehold contracts suggest more rights for the leasehold purchaser than is guaranteed and possible under Thai law. Foreigners often do not understand the concept of lease in Thailand.

What is leasehold in Thailand

What a foreigner pays for when he is buys a leasehold condominium is actually rental for up to 30 years. The leasehold contract is and must be read as a rental contract and is governed by the section hire of property in the Civil and Commercial Code. The foreign leasehold purchaser of a condo enters into a tenant-landlord or hirer- lessor relationship, often with the developer of the condominium as the landlord.

As a rental contract the foreigner must consider the following under Thai law:

Voting rights in the condominium juristic person associated with ownership remain with the owner of the unit and not with the leasehold purchaser. If a large part of the condominium is sold under lease contracts the developer of the condo will have a large part of the voting right and control in matters like condo management. Considering that most condos are managed by the developer’s management company common complaints relate to high maintenance and management fees. The selling of leasehold condos disturbs the democratic voting right system in a condominium.

Selling a leasehold condo down the road

As leasehold is a rental, and by law the leasehold purchaser does not have any rights or authority to sell or assign the leased condo. The buyer of a leasehold condo is a tenant and only has the exclusive right of possession of the condo for the term in the lease agreement. The only person with the right to sell the condo is the registered owner and assignment of the lease can only be done by the landlord/owner.

Sub-rent of the condo
A leasehold owner is only allowed to sub-rent the condo if this is agreed in the condominium lease contract. Otherwise the law stipulate that sub-rent is not allowed.

Inheritance of a condo in Thailand

Even though the Thailand Condominium Act in section 19 does not automatically qualify the heirs of a freehold owner for registration of ownership, freehold owners can pass on a condominium by inheritance to another foreigner.

A leasehold of a condominium is a rental and based on Supreme Court ruling this type of contract is terminated upon death of the tenant/ lessee party of the agreement. The lessee or tenant is an essential element of the agreement and under contract law this type of contract is terminated upon death of the lessee. The remaining term of the lease agreement will not pass on to the heirs of the condo. The lease agreement could include a succession clause however this does not offer any guarantee that the remaining lease term is also registered by the owner in the names of the heirs.

Transfer of ownership of the condominium does not break rent under Thai law, death of the lessee does!

Renewal options in the contract

Most foreigners who buy a leasehold condo are mislead by the term of the lease contract created by renewal options. Under present Thai law the renewal option is nothing more than a promise to renew the lease upon expiration of the first registered term after 30 year. Such a promise to renew has only effect between the parties to the contract. Should the lessee die or should the owner die or transfer ownership this contract option is lost. As confirmed by Supreme Court rulings a renewal option has no effect against third parties and do not transfer by law to any transferee owner.

Right to transfer to freehold

Like the renewal option this is a contract right between the parties only. It could be impossible or difficult to enforce. It is not a guaranteed right or option.

Term of the condominium lease contract

Any lease agreement in Thailand cannot exceed 30 years. Any longer term will be reduced to 30 years. The 30 year lease is not a fixed asset, it is a rental contract. As a contract it can be terminated prior to the expiration of the 30 year term, for example breach of contract by the tenant lessee or death of the lessee.

Taxes

As opposed to freehold condos rental or leasehold condos are subject to a rental tax of 12.5% over the actual yearly lease price or annual assessed lease price. This is often passed on in the lease contract to the leasehold buyer.

Before entering into a leasehold purchase of a condominium foreigners should consider the rights associated with lease in Thailand. Some matters can be anticipated if properly included in the contract, some rights included in the contract are not guaranteed and the relation with the owner remains a tenant/ landlord relationship.

Foreign Condominium Ownership In Thailand And Sale-able Floor Area

Foreigners are not allowed to own land in Thailand in their own name but foreigners are allowed to own and buy condos in Thailand freehold in their own name. Buying a condominium in Thailand is a popular real estate investment for foreigners but foreign ownership is limited to a quota. Foreign ownership in a condominium or condominium development project is limited to 49% of the sale-able total floor area within that condominium. The remaining 51% of the floor area in the condominium must be owned by Thais.

An important aspect of a condominium purchase is the fact that the unit falls within the 49% foreign ownership quota within such condominium.

With sale-able floor area is referred to the floor area of the condo, and not the common areas within a condominium. The floor area of a condominium unit is stated in the condominium unit title deed, which again relates to the voting rights in the condominium juristic person and co-ownership in the common areas.

Condominium projects in Thailand are often sold during the construction and prior to completion of the building and issuance of the official government issued ‘condominium unit title deed’. The foreigners buying a condominium under construction in Thailand will find in the sale and purchase agreement that the purchase price is based on the square meters of such unit to be built or completed. The purchase price usually contains the condition that the purchase price will be adjusted based on the final floor area as will be measured by the Thailand land office surveyor when the unit is finished. Upon completion of the condominium building in Thailand the final floor area will be stated in the official ownership condominium unit title deed. This size is based on the official survey by the Land Department. It is not uncommon that the final purchase price is adjusted with up to 10% difference from the purchase price in the condominium sale and purchase agreement. It is important to be aware of this aspect.

The final floor area is measured by the Land Department and stated in the condominium unit title deed which is administrated and issued by the Land Department. In the Thailand Condominium Act the floor area of a condominium is referred to as private ownership and the wall dividing apartment units shall be joint ownership between the adjoining units.

Common ownership in the condominium is among other the land on which the condominium is situated, the frame structure of a condominium, the office of the condominium juristic person.

When buying a condominium in Thailand it is important to understand the legal procedure and restrictions for ownership in a condominium based on the saleable floor area.

For more information samuiforsale offers free Thailand property related legal information for foreigners.