Usufruct, superficies and right of habitation
Real rights under the Civil and Commercial Code that can be registered on the title, separating the right to use property from ownership — with the differences between them, the permitted duration and the documents the Land Office requires.
A usufruct under section 1417 gives the holder possession, use and enjoyment of immovable property, including the ability to let it to others within the limits of the law and the agreement. Section 1418 allows a usufruct for the holder's life or for a fixed term, and a fixed term may not exceed thirty years. A usufruct ends on the holder's death and cannot pass by inheritance.
Superficies under section 1410 gives the right to own buildings, structures or plantations on another person's land. Unlike usufruct, it centres on the structures, which makes it the usual tool where one person owns the house and another owns the land. Section 1412 permits it for a fixed term or for life, again capped at thirty years for a fixed term. Unlike a usufruct, superficies is transferable and can pass by inheritance unless the parties agree otherwise.
A right of habitation under section 1402 allows a person to live in another's building rent-free. Section 1403 caps a fixed term at thirty years, and section 1404 provides that the right is not transferable, even by inheritance, so its scope is clearly narrower than a usufruct.
All three are real rights that must be registered with the competent official at the Land Office to be raised against third parties. Once registered they appear in the registration record on the title and bind a subsequent owner of the land. A privately written arrangement that is never registered binds only the parties to it.
In practice, families with a foreign spouse often use a usufruct or superficies so the foreign spouse has a secure right to use a home or land the Thai spouse owns. Any such structure must not amount to holding land on behalf of a foreigner, which the Land Code prohibits, so have a lawyer assess the specific facts before proceeding.
Documents to prepare
- Owner's copy of the land title deed
- ID card or passport of both parties, with certified translation where needed
- House registration of the grantor and the grantee
- Spousal consent where the land is marital property
- Marriage certificate with translation where relevant to a foreign-spouse arrangement
- Department of Lands power of attorney form if a party will not attend
Order of steps
- Choose the right that matches what needs protecting: land, structures or occupation
- Check the title's registration record for a mortgage or earlier right
- Prepare identity documents and certified translations for the foreign party
- Register at the local Land Office with both parties present or by attorney
- Collect the title endorsed with the registered right and keep copies
Pre-filing checklist
- The right chosen matches the actual purpose
- Any fixed term is within thirty years, or life tenure is stated explicitly
- The right is registered at the Land Office, not just contracted privately
- You understand that usufruct and habitation do not pass by inheritance
- The structure does not amount to holding land on a foreigner's behalf
Frequently asked questions
How does a usufruct differ from a lease?
A usufruct is a real right under section 1417, registered on the title and capable of lasting for the holder's life. A lease is a personal right capped at thirty years under section 540, with rent payable under the contract.
Can a usufruct pass to my children?
No. The Civil and Commercial Code ends a usufruct on the holder's death, so it cannot be inherited. Superficies, by contrast, is transferable and inheritable unless the parties agree otherwise.
Can a foreign spouse use a usufruct instead of owning land?
A usufruct grants use and enjoyment, not ownership of land, and families do use it. The arrangement must not amount to holding land on behalf of a foreigner, which the Land Code prohibits, so have a lawyer review the specific facts.
When is superficies the better tool?
When the point is to own the house, structure or plantation standing on someone else's land under section 1410 — for example building on a relative's or spouse's land — registered so it appears on the title.
Is a private agreement enough without registration?
No. To be raised against third parties and bind a new owner of the land, the right must be registered with the competent official at the Land Office. An unregistered agreement binds only the parties.
For a document review before you file at the Land Office, contact us on LINE @nycli, phone +66-83-249-4999 or email nycli@ilc.ltd. Our team will confirm the steps, anything still missing and a realistic timeline.