Superficies in Thailand. Foreigners in Thailand face restrictions on land ownership under the Land Code Act and related legislation. While direct land ownership is limited, there are legal mechanisms to secure rights over property. One such mechanism is the right of superficies, which allows an individual to own buildings, structures, or plantations upon land belonging to another person.
This right is recognized under the Civil and Commercial Code (CCC), Sections 1410–1416, and provides a powerful legal tool for both Thai nationals and foreigners to separate ownership of land from ownership of structures.
1. Legal Foundation
Superficies is governed by the Thai Civil and Commercial Code (CCC):
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Section 1410: Grants a person the right to own buildings, structures, or plantations on another person’s land.
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Section 1411: The right may be created for a fixed term (up to 30 years), for the lifetime of the landowner, or for the lifetime of the superficiary (the holder).
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Section 1412: Requires registration at the Land Office to be legally enforceable.
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Section 1416: Upon expiration, buildings and structures may revert to the landowner unless otherwise agreed.
2. Nature of the Right
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Real right: Superficies is a right in rem — it attaches to the property itself and is enforceable against third parties.
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Separate ownership: The superficiary can own and control buildings independently of the land.
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Transferable and inheritable: Depending on its form, the right can be sold, transferred, mortgaged, or inherited.
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Security for foreigners: Enables ownership of a house or building without owning the underlying land.
3. Duration of Superficies
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Fixed term: Maximum of 30 years.
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Lifetime: May be granted for the lifetime of the landowner or the superficiary.
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Renewal: Like leases, renewals are contractual promises, not guaranteed rights enforceable against new owners unless re-registered.
👉 Example: A foreigner may obtain a 30-year superficies on land owned by a Thai spouse. If granted “for life,” it can last until the foreigner’s death, regardless of the landowner’s ownership transfers.
4. Creation and Registration
Steps:
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Agreement between landowner and superficiary.
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Registration at the Land Office where the land is located.
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Required documents:
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Title deed (Chanote) of the land.
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Identification documents of both parties.
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Written superficies contract.
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Fees: Registration typically costs 1% of the declared value of the superficies (subject to caps).
👉 Without registration, the superficies is invalid against third parties and unenforceable in court.
5. Rights of the Superficiary
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Ownership of structures: The right to own and manage any buildings or plantations on the land.
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Transferability: Can be sold, mortgaged, or inherited, subject to terms of the agreement.
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Use of land: Limited to what is necessary to enjoy ownership of structures.
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Protection from eviction: Landowners cannot revoke the superficies during its legal term.
6. Duties of the Superficiary
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Compliance with contract terms: Use the land in accordance with the agreement.
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Maintenance: Responsible for upkeep of the buildings or structures.
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Return rights upon termination: If not otherwise agreed, buildings may revert to the landowner when the superficies ends.
7. Termination of Superficies
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Expiration of the term.
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Death of landowner or superficiary (if created for life).
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Mutual agreement.
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Renunciation by superficiary.
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Revocation by court due to breach of agreement.
After termination, unless otherwise specified, ownership of structures passes to the landowner.
8. Advantages of Superficies
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Legal certainty: Registered and enforceable against third parties.
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Security for foreigners: Allows ownership of houses even without land rights.
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Estate planning: Can be structured to last for life, protecting family members.
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Flexibility: Transferable, mortgageable, and usable as collateral.
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Protection from disputes: Provides stronger legal standing than private agreements.
9. Limitations and Risks
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Land ownership remains restricted: Foreigners cannot own the land itself.
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Duration cap: Fixed-term superficies cannot exceed 30 years.
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Reversion of ownership: Buildings may revert to landowner unless contract specifies otherwise.
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Administrative variation: Land Offices may interpret rules differently.
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Title deed requirement: Cannot be created if the land lacks a proper title (e.g., Sor Kor 1).
10. Practical Applications
A. Foreign Spouses
A foreign husband may register a superficies over land owned by his Thai wife. He becomes the legal owner of the house built on the land, independent of marital disputes or inheritance issues.
B. Commercial Development
A foreign company may secure a superficies to build a factory or warehouse on land owned by a Thai partner, ensuring ownership of structures.
C. Agricultural Use
Farmers may use superficies to secure rights over plantations while leasing land.
D. Inheritance Planning
Superficies can protect children or heirs by ensuring ownership of family homes separate from land succession disputes.
11. Comparison with Leasehold
| Feature | Superficies | Leasehold |
|---|---|---|
| Legal nature | Real right (in rem) | Personal contractual right (in personam) |
| Duration | 30 years or lifetime | Max 30 years |
| Ownership of structures | Superficiary owns | Landowner usually owns |
| Transferability | Transferable, inheritable | Requires consent of lessor |
| Security | Enforceable against third parties | Limited to contract parties |
👉 Many investors combine leasehold + superficies: leasing the land and registering superficies to secure building ownership.
12. Key Considerations for Foreigners
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Due diligence: Verify land title deed (Chanote recommended).
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Clarity in agreement: Specify what happens to buildings when the superficies ends.
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Heirs: Ensure inheritance terms are clear.
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Legal assistance: Contracts should be drafted and registered with the help of qualified Thai lawyers.
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Combination with leasehold: For maximum protection, combine leasehold rights with a superficies.
13. Case Example
A Swiss retiree leases land in Phuket for 30 years to build a villa. To secure ownership of the house, he registers a superficies agreement at the Land Office. The superficies grants him ownership of the villa for his lifetime. When he passes away, his heirs inherit the villa and leasehold rights for the remainder of the lease. The land, however, always remains owned by the Thai landlord.
Conclusion
The right of superficies in Thailand offers a practical and legally recognized solution for separating ownership of land and buildings. Governed by Sections 1410–1416 of the Civil and Commercial Code, it is a real right enforceable against third parties, providing stronger protection than simple lease contracts.
For foreigners, superficies is especially valuable: it allows ownership of houses or buildings, supports inheritance planning, and can be combined with leasehold for greater security. However, careful drafting, registration, and professional legal advice are essential to avoid pitfalls.
Disclaimer: This article provides general information about superficies in Thailand under the Civil and Commercial Code. It is not legal advice. For case-specific guidance, consult a licensed Thai property lawyer.
