Superficies in Thailand. Under Thai property law, superficies (Thai: สิทธิเหนือพื้นดิน) is a real right that allows a person to own buildings or structures on land owned by another. It provides a legal mechanism whereby the land and the structure upon it are separately owned, an important legal construct in a jurisdiction where foreign ownership of land is prohibited but ownership of buildings is not.
The right of superficies is governed by the Civil and Commercial Code (CCC), particularly Sections 1410 to 1416, and is subject to registration with the Land Department. It is commonly used in foreign investment structuring, inheritance planning, agricultural leasing, and real estate development.
1. Legal Nature of Superficies
1.1 Definition
Section 1410 CCC defines superficies as:
“The right to have one’s own building, structure, or plantation upon or under the soil of another person.”
It is a real right, not a personal contractual right, which means it is attached to the land and enforceable against third parties once registered.
1.2 Scope
The superficiary (holder of superficies) has the legal right to:
- Construct, own, or retain ownership of structures (houses, warehouses, factories, etc.)
- Cultivate or plant trees
- Maintain such ownership independent of the landowner
The landowner retains title to the land, but is subject to the right of superficies for the agreed duration.
2. Legal Characteristics
2.1 Form and Creation
Superficies may arise by:
- Contract (e.g., between a landowner and a foreign investor)
- Will (bequeathing the right of superficies)
- Court judgment (in limited cases, e.g., dispute settlement)
However, under Section 1299, to be enforceable against third parties, superficies must be registered at the local Land Office. Unregistered superficies creates only personal obligations between parties—not a property right.
2.2 Duration
The CCC permits superficies to be granted:
- For a definite term (up to 30 years)
- For the life of the superficiary
- For the life of the landowner
Unlike leaseholds (which are strictly limited to 30 years), superficies may outlast the lease term in certain structuring scenarios.
2.3 Transferability
A registered superficies:
- Can be transferred, sold, gifted, or inherited (Section 1412)
- May be mortgaged, provided the structure has value
- Is separate from leasehold or tenancy rights
3. Strategic Uses and Benefits
3.1 Foreign Property Ownership
Thai law prohibits foreign individuals and most companies from owning land, but does not prohibit foreign ownership of buildings. Thus, many foreign nationals or companies:
- Purchase a long-term lease for the land
- Register a superficies to own the building constructed on it
This bifurcated ownership structure is widely used in:
- Residential villa developments
- Retirement homes
- Foreign-owned factories
Example: A foreign national leases land for 30 years and registers a superficies. They construct a villa and retain ownership of it, even though the land itself remains under Thai ownership.
3.2 Agricultural and Commercial Use
In rural Thailand, superficies allows farmers or businesses to plant trees or erect temporary structures on leased land without acquiring ownership of the soil.
- Plantations: Palm oil, rubber, orchards
- Warehousing: Construction of sheds or temporary facilities
4. Legal Requirements and Registration Process
4.1 Documentation
To register a superficies, parties must submit:
- Title deed (Chanote or Nor Sor 3 Gor)
- Agreement between landowner and superficiary
- Identification documents
- Power of attorney (if applicable)
- Application form to the Land Department
4.2 Land Department Review
Land officers will:
- Verify ownership of land
- Confirm that the right is not encumbered (e.g., mortgaged)
- Review purpose and duration of the superficies
- Collect registration fee (approximately 1.1% of the appraised value)
4.3 Title Annotation
Once approved, the right of superficies is annotated on the back of the title deed, indicating:
- Name of the superficiary
- Duration of the right
- Scope of the construction or use permitted
5. Comparison to Other Rights
| Feature | Superficies | Leasehold | Usufruct |
|---|---|---|---|
| Ownership of building | ✅ Yes | ❌ Lessee must surrender to owner | ❌ Belongs to landowner |
| Duration | Up to 30 years or lifetime | Max 30 years (renewable) | Lifetime only |
| Transferable | ✅ Yes | ✅ Yes (with consent) | ❌ No |
| Inheritable | ✅ Yes (if granted accordingly) | ✅ Sometimes | ❌ Terminates at death |
| Registerable | ✅ Required | ✅ Required (over 3 years) | ✅ Required |
6. Termination and Renewal
6.1 Natural Expiry
Superficies automatically terminates:
- At the end of the fixed term
- Upon death of the superficiary (if life-based)
- Upon death of the landowner (if so agreed)
If the structure remains upon termination, ownership reverts to the landowner unless otherwise agreed.
6.2 Early Termination
Superficies may be terminated by:
- Mutual agreement
- Revocation clause in the contract (rare)
- Breach of contract, such as unauthorized construction or use
Courts may terminate a superficies if it is proven that the superficiary materially violated the purpose of the agreement.
7. Taxation and Fees
- Registration Fee: 1.1% of the assessed value of the superficies (collected by the Land Department)
- Withholding Tax: May apply if a superficies is transferred for value
- Property Tax: Superficiaries may be liable under the Land and Building Tax Act B.E. 2562 (2019) depending on use (residential, commercial, etc.)
- Stamp Duty: May be payable depending on the form of agreement
There are no annual fees for maintaining a registered superficies.
8. Disputes and Litigation
8.1 Encroachment or Eviction
Disputes may arise when:
- Landowners sell the land without disclosing the registered superficies
- Superficiaries build structures that exceed agreed scope
- Structures deteriorate and pose a risk
Courts typically uphold valid, registered superficies rights. If ownership is disputed, documentary evidence and registration status are paramount.
8.2 Sale of the Land
A registered superficies survives the sale of the land. The new owner is bound by the superficies as a real right, but can challenge unregistered claims.
8.3 Bankruptcy of the Landowner
Superficies is protected in the event of landowner insolvency, as it constitutes a real encumbrance recorded in the land registry.
9. Risks and Practical Considerations
- Failure to register nullifies superficies as a real right
- Unclear contractual terms may lead to disputes regarding duration, transferability, or structural ownership
- Overlap with usufruct or lease must be carefully structured to avoid legal conflicts
- Due diligence is critical when acquiring land subject to existing superficies
It is advisable to engage qualified legal counsel to draft agreements, register rights, and coordinate with the Land Department to ensure enforceability.
Conclusion
Superficies is a powerful and flexible legal mechanism under Thai property law, allowing individuals—particularly foreigners—to legally separate ownership of buildings from land ownership. Properly structured and registered, a superficies can support residential, agricultural, or commercial use while maintaining compliance with foreign land ownership restrictions.
However, the utility of superficies depends on clear agreement terms, proper registration, tax awareness, and risk management. Used appropriately, superficies offers a secure and transparent method for building ownership in Thailand without violating the Land Code.