Usufructs in Thailand (known in Thai as “สิทธิ์ใช้อาศัย” or “สิทธิเก็บกิน”) is a real right under the Civil and Commercial Code (CCC) that allows one person (the usufructuary) to use and benefit from another’s immovable property, usually land or a house, without acquiring ownership. The right is personal and non-transferable unless otherwise agreed, and it can be granted for a specified period or for the life of the usufructuary.
Usufruct is commonly used in Thailand to protect the residential or economic rights of foreign spouses who are prohibited from owning land, as well as elderly parents, cohabiting partners, or financially dependent individuals.
This article offers a comprehensive legal analysis of the usufruct arrangement in Thailand, grounded in statutory law and judicial precedent.
II. Legal Basis
The primary legislation governing usufruct in Thailand is:
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Civil and Commercial Code (Sections 1417–1428)
Key Definition (Section 1417):
“An immovable property may be subject to a usufruct under which the usufructuary has the right to possess, use and enjoy the property and its fruits.”
Usufruct is thus classified as a real right (right in rem), not a contractual right, and is enforceable against third parties once registered.
III. Creation of a Usufruct
A. Eligible Property
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Immovable property only (e.g., land, houses, condominiums)
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Must be owned by the grantor (naked owner) with legal title (Chanote or Nor Sor 3 Gor)
B. Process of Creation
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Written agreement between the owner and the usufructuary
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Registration at the Land Department
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Must be registered on the land title deed (Chanote)
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Not valid unless registered; oral agreements are unenforceable under Thai law
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C. Term of Usufruct
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Lifetime of the usufructuary (most common)
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Fixed term (not exceeding 30 years for juristic persons)
Section 1418: “A usufruct may be created either for a period of time or for the life of the usufructuary.”
IV. Rights of the Usufructuary
A usufructuary is entitled to use and enjoy the fruits (i.e., benefits, income) of the land or property.
Key Rights:
| Right | Legal Basis / Commentary |
|---|---|
| Possession and Use | Section 1417 CCC: Exclusive use and occupation allowed |
| Collecting Fruits | Right to harvest crops, earn rental income, or reside in property |
| Leasing to Third Parties | Permitted, but limited to the usufruct period |
| Minor Alterations | Allowed if consistent with normal use and not damaging |
The usufructuary may rent out the property, but cannot sell or mortgage it, nor can they register sub-rights like superficies or servitudes without owner consent.
V. Duties and Liabilities of the Usufructuary
Thailand’s Civil Code imposes fiduciary obligations on the usufructuary toward the naked owner:
| Duty | Section | Explanation |
|---|---|---|
| Preserve the property | 1421 | Must maintain the substance of the property |
| Pay ordinary taxes | 1422 | Responsible for annual taxes and land maintenance |
| Repair costs | 1423 | Minor repairs at own expense; major structural repairs borne by owner |
| Return property at end | 1425 | Must return possession in original condition, less normal wear |
Negligence may result in liability to the owner under Section 1424, including termination and compensation.
VI. Termination of Usufruct
A usufruct ends upon:
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Death of the usufructuary (if granted for life)
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Expiration of agreed term (if fixed duration)
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Merger of ownership and usufruct (e.g., if the usufructuary inherits the property)
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Renunciation by the usufructuary
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Destruction of the property
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Judicial termination for breach or abuse
Upon termination, the usufruct cannot be inherited or passed to heirs unless a new usufruct is executed and registered.
VII. Usufruct for Foreigners
Legal Context
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Foreigners are not allowed to own land under the Land Code B.E. 2497 (Section 86).
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However, they may hold usufruct over land legally owned by a Thai spouse or partner.
Practical Uses:
| Scenario | Purpose of Usufruct |
|---|---|
| Foreign spouse of Thai national | Ensures right to live on or rent out land they funded but don’t own |
| Elderly parent | Lifetime right of residence or income from farmland |
| Investment protection | Foreign investor secures use of land through long-term usufruct |
Note: Even though Thai law permits foreigners to be usufructuaries, some Land Offices may restrict or scrutinize such registrations, particularly in tourist-heavy provinces.
VIII. Differences Between Usufruct, Superficies, and Lease
| Feature | Usufruct | Superficies | Lease |
|---|---|---|---|
| Ownership | Retained by grantor | Retained by grantor | Retained by grantor |
| Duration | Life or up to 30 years | Up to 30 years | Max. 30 years (renewable) |
| Inheritance | Not inheritable | Inheritable | Not inheritable |
| Use Rights | Broad use + economic benefit | Right to build/use land | Possession and use only |
| Registration | Mandatory at Land Office | Mandatory | Mandatory if >3 years |
IX. Risks and Legal Limitations
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Cannot be inherited – Ends with death (unless renewed)
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Non-transferable – Cannot assign to another person without consent
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Limit on term for juristic persons – Max 30 years
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Challenge by heirs – Particularly common in mixed-nationality marriages
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Unclear language – If poorly drafted, may be unenforceable or lead to litigation
X. Best Practices for Drafting and Registering a Usufruct
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Clearly define scope: personal residence vs. commercial use
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Include right to lease, if intended
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Clarify maintenance obligations
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Register the usufruct in person with the local Land Office
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Accompany the agreement with a map or plan of the property, if only a portion is used
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Consider a lease + usufruct structure for complex arrangements
XI. Judicial Precedents and Commentary
Thai courts have consistently upheld registered usufructs when formal requirements are met. However, in Supreme Court Decision No. 2545/2546, the court emphasized that usufructs must not be used to circumvent land ownership prohibitions.
Other rulings confirm that:
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Income derived from a usufruct may be taxed as rental income (subject to PIT)
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Misuse or damage to property can justify termination under CCC Section 1424
XII. Conclusion
Usufruct in Thailand is a robust, statutorily grounded right that offers security of use and economic benefit without ownership. It is especially useful in personal, family, or foreign investment contexts where land ownership is prohibited or undesirable. However, because the right is non-transferable, ends on death, and must follow strict formalities to be valid, professional drafting and proper registration are critical.
Usufructs should be tailored to the intended use, clearly documented, and structured with consideration of tax, succession, and property regulations under Thai law.
