What is Superficies?
Superficies is "a right to build upon another's land or in essence to register a house separate from the relevant land therefore permitting the building of a structure or a plantation".
Similar to a Usufruct, if a right of superficies is intended, it must be noted that once granted, the "superficiary", or the one who benefits from the right of superficies, must keep the land intact and remain in good condition.
Once the right of superficies has expired, the land must be returned in the same condition as it was before the right was granted.
Upon expiration of the Superficies, if the the owner of the land wishes to buy the building at a market price the superficiary has to sell it.
The right of superficies may be granted for the lifetime of either party or for a period of up to 30 years and during that period any taxes on the land must be paid by the superficiary. The right does not extinguish even if there is complete destruction of the building or structure.
Use of Superficies to Foreigners
- Section 1410 of the Civil and Commercial code allows foreigners a right to register a right of superficies under if granted pursuant to an agreement between the parties.
- Generally, there is no fee for registration at the Land Department; however, there needs to be a mere consideration that has a monetary value of not more than 1,000 baht. However, this may vary between parties as well as Land Departments.
- The right of superficies can be terminated at any time so long as there is no particular fixed registration period upon reasonable notice by either party. However, if rent is to be paid for the superficies, at least one year notice must be given by either party to terminate or one year rent is to be paid.
The Transfer of Superficies
Superficies may be transferred to a third party as well as through inheritance. However, it must be noted that any destruction or damage to the land will become the responsibility of the third party. In that case, they and can directly sue the initial superficiary for the damage of the property.
If the superficies is inherited, the same conditions shall apply to the heir of superficies.
Superficies in Thailand Now
Superficies in Thailand are not as commonly used as much if compared to leases. Although the registrations of superficies in Thailand are not against the law, the land department will view the circumstances and it is upon their discretion whether the right of a superficies is granted or not.