The rains have just ended in one of the wettest rainy season on record, and the sunshine and blue seas are welcoming back not only Phukets perennial winter visitors but also an unprecedented number of new ones. Despite the rains, Phuket has just undergone its strongest tourist season ever and the coming year promises to be even stronger. The change of season also marks the time when Ask William!! stops responding to off beat property issues and reverts to a series of article answering the more general inquiries of first time buyers as to how land titling works and what a foreign investor can legally acquire in Phuket.
There are restrictions to foreign land ownership in Thailand and while
these have been subject to serious debate to seek ways to ease the requirements
for foreign investors, despite several newspaper reports to the contrary,
there have yet to be any changes to the land code. Of the many issues
discussed, such as allowing foreign ownership of small land plots, increasing
the foreign ownership allowance in condominiums and extending the maximum
registrable lease term, the only one that made it from cabinet to the
lower house was the latter - but even this proposal has many more steps
to pass before it could possibly be passed.
I will begin by reviewing what a foreigner can and cannot own in the way of property in Thailand and then move on to the different types of land ownership documents and strata titles that are available.
So lets start with the most basic issue. Foreign nationals may not own freehold land in Thailand and if you should marry a Thai (male or female) they in turn will loose their rights to acquire (but not to own) land. There is a rare discretionary exception to this rule for the principal investor/manager in new export orientated BOI (Board of Investment) approved company. Or you can of course avoid the issue by obtaining Thai nationality, a lengthy process, possible in practice as well as theory, but not far removed in complexity from finding a needle in a haystack.
That may sound pretty restricting, but as I will explain, its really not as bad as it might at first appear. Lets look instead at what a foreigner may acquire. A condominium apartment title (with a proportional or strata interest in common land), long term registered
transferable lease rights to land and or buildings, options to purchase
land (but not to exercise that option in their own name, unless the
law should change), and freehold ownership of all buildings and improvements
either existing or to be constructed upon leased land. A foreigner may
also own up to 49% of the shares in a Thai company that owns property
in Thailand and may be a director of that company.
Through applying one or a combination of the above completely legal mechanisms, a foreign national may have effective ownership of property and may sell and transfer those rights to achieve capital gain - in other words just about everything that a freehold owner could do. I am not going to bore you in this article with the fine details of how all this works.
Purchasing a condominium is the easiest, simplest transaction, provided that an allocation remains within the 40% foreign allowance and the funds for the purchase have been remitted from abroad and correctly recorded as such by a Thai bank.. In popular buildings, you will often find that more than 40% of the units have been "sold" to foreign buyers, who have taken the unit through either some form of lease or nominee corporate structure. The foreign freehold is definitely the preferred structure for purchase of a Condo; if you do choose another structure of "ownership", have it checked carefully (since most are likely to have tax or other implications that are not immediately apparent) and certainly look for a price that is less than the freehold equivalent.
However if what you want is a house, dont be deterred by the fact that you cant acquire freehold land. You may own the building freehold and together with a well constructed leasehold (typically a 30 year lease with two prepaid 30 year renewals) and a purchase option for the land (that could be invoked in the event the laws of foreign ownership changed - or you sold the property on to a Thai) you will have effective ownership, yet still remain within the laws of Thailand.
The structure of such a lease/purchase is complex and needs to be reviewed carefully with respect the properties current ownership and your own personal needs - it is recommended that you always seek the advice of an independent lawyer or property consultant, who speaks your language before making any financial commitment regarding property.
(to be continued next month)