Hua Hin LAND TITLES
What are the main types of land title deed in Thailand?
The land title deed is a Chanote (Nor Sor 4 Jor). The Nor Sor 3 Gor and Nor Sor 3, are equivalent to a land title deed for all practical purposes as the land can be sold, leased or mortgaged. However, the boundaries are less accurately surveyed compared to land with a Chanote. There are a number of other land titles though these do not afford the owner many rights to the land under Thai law.
As a buyer you need to be aware of the various land title deeds which exist to understand what you are being offered. A large percentage of the land in Phuket is not titled or even accurately surveyed. Actually, it is because there is a lack of complete surveys that comprehensive titling does not exist.
As a foreigner buying land in Thailand, you should only consider land that comes with a Chanote, Nor Sor 3 or Nor Sor 3 Gor. These can be sold, leased and used as mortgage collateral and are the only titles over which a registerable right of ownership or lease can exist. More importantly, you cannot apply for or obtain approval to build on such land without one of the aforementioned titles. In any event, make sure you have a good lawyer look over the paperwork before you commit to anything.
True land title deeds are officially called Nor Sor 4 Jor or more commonly Chanote.
This is a certificate for the ownership of land and can be used as evidence confirming the right to government authorities.
It is issued by the Hua Hin Provincial Land Office using GPS to accurately plot and survey the boundaries of the land. This is the most secure type of land title but land with a Chanote can often be hard to find an prices can be high.
NOR SOR 3
The Nor Sor 3 is a document certifying the use of land issued and maintained by the District Land Office to the proprietor of the land but is not a possessory title. That is to say the person holding the Nor Sor 3 has the legal right to possess the land in question and can use it as a legal document. Nor Sor 3 is a floating map with no parcel points issued for a specific plot of land and not connected to other land plots, but its boundaries are recorded according to its neighbouring plots. Therefore, it may cause some problems in verifying boundaries due to lack of accurate surveys. Any change in ownership of the land must be publicised for 30 days before it can be registered.
NOR SOR 3 GOR
The Nor Sor 3 Gor has the same legal basis as the Nor Sor 3, with the difference being that in general Nor Sor 3 Gor has parcel points on the map of the land area set by using an aerial survey with a scale of 1:5000. It is a more accurately surveyed title as each plot is crossed referenced to a master survey of the land area and a corresponding aerial photograph. Therefore, it is possible to verify the boundaries of the land. However, it is still less accurately surveyed compared to a Chanote.
SOR KOR 1
Sor Kor 1 is a notification form of possessed land, which shows and maintains the existing rights to the particular land. On December 1st 1954, the government advised all land proprietors to notify their possession of land to the government using a Sor Kor 1? form. After it was proven that such a proprietor had possessed and used the benefit of the land legally, the government would then issue Nor Sor 3? or Nor Sor 3 Gor as an evidence, which are legal certificates stating the owners name that they have the right to such land according to the principle land administration law. This right will be protected by the law and can be used as evidence in any dispute with a private individual or the government.
A condominium title is a title to a part of a building or buildings with multiple owners, a fractional interest in the land, other common assets (such as a swimming pool) and common parts of the building (such as the stairwell or lobby). The title will state the floor area of the private apartment, the ground area of the common land and the percentage interest, in which that apartment has in the common property. This percentage also represents the voting interest in the condominium company or owners association.
Buildings other than condominiums do not have any form of title document, but their sale or long lease can be registered at the District Land Office. Proof of ownership must be established either from proof of construction or a document showing sale and purchase. Do not confuse this with the House License document, which is only a registration of the house occupants. Transfer of a building, as distinct from its land, requires the posting of 30 days public notice, to see if anyone wishes to contest the ownership. Foreigners may own a building distinct from its land and register such transfer of ownership into their names at the Local District Office or Amphoe.
THAI LAND MEASUREMENT
How is land measured in Thailand?
Metric units are generally used in the construction and measurement of buildings, but land is usually measured in Wah or Rai.
Thailand has its very own units of measurements when dealing with land, which can be a little confusing at first. The units you will come across most often are talang wah and rai. Talang means squared, so 1 talang mett is 1 sqm. Metric units are used when dealing with buildings.
THAI TO METRIC
1 Wah = 2 m
1 Talang Wah = 4 sqm
1 Rai = 1600 sqm
1 Rai = 400 Talang Wah
1 Rai = 0.40 Acre (approx.)
1 Rai = 0.16 Hectare
1 Ngan = 100 Talang Wah
METRIC TO THAI
1 m = 0.5 Wah
1 sqm = 0.25 Talang Wah
1 Acre = 2.53 Rai
Hectare = 6.25 Rai
Are foreigners allowed to own land??According to Thai law, foreigners are prohibited from purchasing freehold land and not more than 49% of the shares in a Thai limited company that owns freehold land under the companys name. However, foreigners may own a building distinct from its land, such as a unit in a condominium.
HOW CAN FOREIGNERS OWN LAND IN THAILAND
The safest and easiest methods for owning land include using a leasehold agreement or setting up a Thai limited liability company.
What are the advantages of setting up a Thai company to buy land??Unlike land leasing, the ownership of such land is permanent as long as the company exists. Using this method is also convenient if you were already planning to set up a business in Thailand. This method is also suitable if you wish to purchase land as part of an investment as it is possible to mortgage or subdivide the land for resale, which is not normally possible with a leasehold.
What are the disadvantages of setting up a Thai company to buy land??Unless you are an American, as a foreigner you cannot own more than 49% of the shares in the company. This means that you need Thai shareholders who will sign over control of their shares to you. The minimum number of shareholders is 3, so you can have 1 foreigner and 2 Thai shareholders. However, even though you control these shares, proper legal procedures need to be put in place in order to protect your investment.
You also need to make sure that the regulatory compliance of the company is maintained. Inactive companies that are not generating income may be de-listed, so you need to make sure that balance sheets are filed annually and that the companys address is maintained.
PROPERTY & LAND
If you are considering buying property in Hua Hin, the first thing you should know is that under Thai law, foreigners are not allowed to own land. However, foreign nationals do have the right to the ownership of buildings distinct from the land such as condominiums.
FOREIGN NATIONALS MAY OWN:
A unit in a registered Condominium.
A building distinct from its land.
A registered leasehold of up to 30 years for all types of titled land or buildings.
FOREIGN NATIONALS MAY NOT OWN
More than 49% of the shares in a Thai company that owns freehold land.
NOTE: Before purchasing property in Thailand make sure you have a good lawyer.
PURCHASING A CONDOMINIUM
Under the Condominium Act (1979) foreigners can own the freehold of 49% of the total unit space in any legally registered condominium building. The purchaser must request a letter of guarantee from the condominium juristic person setting out the proportion of foreign ownership which must be submitted to the Land Department upon transfer of ownership.
FOREIGN EXCHANGE TRANSACTION FORM
A foreign purchaser must bring in 100% of the funds from overseas in foreign currency and will need a Foreign Exchange Transaction Form (FETF) from the Thai bank in order to provide evidence of this to the Land Department. Due to strict money laundering regulations, a FETF is also necessary to avoid complications and remittance tax when repatriating funds should the foreigner sell the condominium at a later date.
You can only obtain a FETF for any inward remittance for amounts not less than the equivalent of USD 20,000. You should clearly indicate the payment purpose on the payment order form in the field for a message for the beneficiary, including the name of the condominium and the unit number.
The two most popular ways for foreigners to purchase land are:
Registered leaseholds are secure and relatively straightforward. Long term leasehold can be structured to be tantamount to freehold ownership. Typically, the land is leased for a period of 30 years, renewable a further two times giving a total of 90 years. Security of the possession of land is assured by the fact that you are the legal owner of the buildings which occupy the land. Therefore, the lessor cannot take possession of the property upon expiration of the lease as the property is separated from the land and will not be a component part under the Civil Law.
LIMITED LIABILITY COMPANY
If you are not comfortable with the leasehold method, the alternative is to set up a Thai company that you control, and which can legally purchase land. Put simply, as a foreigner you are allowed to own 49% of the shares in a Thai company. The rest of the shares must be held by Thai juristic persons (which your lawyer can arrange), who will sign over control of their shares to you. The land will be owned by the company. However, as managing director of the company, you control the voting of the other shares, and therefore you have control over the ownership of the land.
Recently the Thai government announced that it will begin investigating the source of the money used by the Thai shareholders who own 51% of the shares in the company to determine if they are nominees. The use of nominee Thai shareholders is prohibited under the Foreign Business Act (1999).
THAI WOMAN MARRIED TO FOREIGNERS
Prior to 1998, any Thai woman who married a foreigner would lose her right to purchase land in Thailand. She could, however, still retain land that she owned prior to marrying the foreigner. However, the recent (1999) Ministerial regulation now allows Thai women married to foreigners the right to purchase land, but the Thai spouse must prove that the money used in the purchase of freehold land is legally solely theirs with no foreign claim to it. This is usually achieved by the foreign spouse signing a declaration stating that the funds used for the purchase of property belonged to the Thai spouse prior to the marriage and are beyond his claim.
Do you have to register the land lease at the Land Department??Leases up to 3 years dont need to be registered. Leases that are 3 years or longer must be registered at the Land Department.
WHAT IS THE MAXIMUM LEASE TERM AVAILABLE?
The maximum lease term is normally 30 years with an option for an extension of 30 years and a further 30 years after that.
Each lease renewal must be registered at the local land office. Land for industrial purposes may be leased for up to 50 years by a foreign company under certain circumstances with a possible lease extension of a further 50 years.
WHAT ARE THE DISADVANTAGES?
Its possible that the land owner may refuse to sign the registration for the lease extension after 30-years. The lessee can sue for breach of contract, but the entailed legal process is costly and time-consuming. Other disadvantages include the difficulty in obtaining a mortgage for the lease, a lower resale value and potential lawsuits from the land owner for lease violations.
HOW IS A CONDOMINIUM DEFINED UNDER THAI LAW?
A condominium is basically defined as a building with distinct portions that can be sold for personal ownership.
What are the requirements for a foreign individual or organization to purchase a condominium in Thailand?
A foreigner or foreign legal entity, who brings foreign currency into Thailand, or brings in Baht currency from the account of a person living abroad, and uses foreign currency from their deposit account. This requirement is normally met by the presentation of a Foreign Exchange Transaction Form, which is provided by the bank receiving an incoming remittance in foreign currency from abroad.
Are there restrictions to owning a condominium??A foreigner or foreign legal entity can acquire up to 49% of the total unit space of all the units in a registered condominium building.
Are condominium long-term leases available??Condominiums can be leased for periods of up to 30 years, which can be renewed. Leases of more than three years are required to be registered with the Land Department.
THAILAND PROPERTY & LAND TAXES
Taxes and fees is something that is not always mentioned when buying a property and you could get a nasty surprise a couple of months after making your purchase in the form of a hefty tax bill.
Whenever a property in Thailand is purchased or sold there are four potential taxes/fees to be paid. Which of these taxes/fees will be applicable depends on the details of the transaction, the seller and the duration of the sellers ownership. It is also significant to note that most of the fees are calculated relative to the governments tax assessment value of the property and this value is usually well below the market value.
Sale of Freehold Land
CATEGORY & Property Transfer of Leasehold Land Sale of Building Liability to Tax
Transfer Fee 2% N/A 2% Seller/Buyer
Lease Reg. Fee N/A 1% N/A Lessor/Lessee
Specific Business Tax 4.3%
Stamp Duty 0.5% or N/A 0.1% 0.5% or N/A Seller
Withholding Tax 1% or 5 37% N/A 1% or 5 37% Seller
This is based on the appraised value of the property and is normally shared equally between both buyer and seller, although this needs to be agreed by both parties.
LEASE REGISTRATION FEE
This is based on the total rent payable over the lease term, and is normally shared equally between the lessor and lessee, although this must be agreed by both parties.
SPECIFIC BUSINESS TAX
Specific Business Tax (SBT) is payable by companies and individuals who have owned the property for less than five years.
It is based on the official appraised value or the contracted price, whichever is highest.
An individual may be exempt from SBT if they have used the property as their principal residence and have had their name in the household registration certificate for at least one year.
Stamp Duty is only paid when SBT is not applicable and is based on the official appraised value or the contracted price, whichever is highest.
WITHHOLDING TAX (WTH)
If the seller is a company, the WHT on the sale of the property is calculated at 1% of the official appraised value or the contracted price, whichever is higher. If the seller is an individual, the WHT is based on the individuals marginal tax rate (except that the first 100,000 baht is taxed at 5% rather than falling under the tax-free threshold) after deducting from the official appraisal price a standard deduction based on the number of years of ownership.
Once you have acquired the property, there are 2 different types of tax levied on property in Thailand that you need to be aware of:
This is an annual tax levied on land ownership equivalent to just a few Baht per rai for properties held as private residences. For properties held by companies the tax can be significantly higher. Under current legislation the property owner is expected to pay at the local tessaban or local government office every year. However, there is no tax bill sent out and in practice it is rarely chased up. The problem of unpaid tax liability usually only surfaces when the property is being transferred, and no transfer can go ahead while there are unpaid taxes on the property.
There has also been ongoing parliamentary debates about resurrecting the land tax bill, which would introduce a more general tax on property that would apply to all land and/or any permanent structures built on the land with different tax rates for commercial property, private residences and agricultural land. Owners of undeveloped land will also come under the new taxation.
STRUCTURES USAGE TAX
This only applies to properties used for commercial purposes or rental properties. This is applicable at the rate of 12.5% on the actual or assessed gross rental value of the property. However, this notional value is well below the commercial market rental value.
If the house is purchased through a company, you need to consider that corporate tax is higher than personal tax, and the cost of setting up the company has to be considered as part of the initial investment, even if this is relatively modest.
If you wish to purchase property in Thailand using Thai Baht, ensure that your funds are transferred to Thailand in foreign currency and converted to Thai Baht here. The receiving bank will issue a Foreign Exchange Transaction Form confirming the transaction for individual inward transfers exceeding 20,000 US$, which is one of the documents you may need in the future if you wish to repatriate funds without incurring tax penalties.
Repatriation of investment funds and repayment of overseas borrowing in foreign currency can be remitted freely upon submission of supporting evidence. One of these documents would be the Foreign Exchange Transaction Form mentioned above, or in respect of a foreign currency loan and the loan contract. Remittance of funds without proper documentation could be regarded as income and become liable for tax.