Superficies in Thailand. Under Thailand’s Civil and Commercial Code, a right of superficies lets one person be the owner of buildings, structures or plantations on land owned by someone else. It’s a statutory real right (not just a loose contract) when properly created and registered, and is governed by Sections 1410–1416 of the Code.
Why people use it (the practical idea)
Superficies separates the ownership of improvements from the ownership of the soil. That makes it useful when (a) the landowner will not (or cannot) transfer freehold land, but a developer or investor wants a secure ownership interest in the buildings; (b) foreigners need a registrable, property-like right to protect costly construction on Thai soil; or (c) parties want a durable grant of improvements that survives sale of the underlying land.
How a superficies is created and made enforceable
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Creation: by express agreement (or by will). The parties must document the grant in writing.
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Registration: to be effective against third parties the superficies must be entered at the Land Office and noted on the title deed for the parcel. If it’s not registered it remains primarily a contractual right between the parties. Registration therefore converts the arrangement into a real right enforceable against transferees of the land.
Practical note: local Land Office practice varies (required forms, evidence of consideration, and fees). Always confirm the exact registration checklist with the Land Office that holds the title.
Term, transferability and inheritance
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Term: a superficies can be granted for a fixed term (the law caps a fixed term at 30 years), or for the life of the landowner or for the life of the superficiary (the holder). If a longer period is stipulated it will be reduced to 30 years by operation of law; renewals are possible by fresh agreement.
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Transfer and inheritance: unless the creating instrument says otherwise, the right of superficies is transferable and transmissible by inheritance — it behaves much like other property interests for transfer purposes. That makes it attractive where a transferrable ownership interest in buildings is needed while land ownership remains with someone else.
Rights and obligations of the superficiary (holder)
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Ownership of structures: the superficiary is owner of the buildings/plantations they build (subject to the agreement). The landowner retains title to the soil.
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Taxes & running obligations: in practice the superficiary is normally made responsible for taxes, maintenance and other burdens connected with the improvements during the grant period (parties can contract differently but tax exposure follows registered ownership of the improvements). National Land & Building Tax rules apply where relevant. Confirm which party pays annual land/building taxes in the agreement.
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Use and sub-dealing: the right can be used, assigned or in many cases sub-let unless the parties restrict those rights in the creating instrument. That flexibility is commercially useful for developers and investors.
Termination, destruction and removal
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Termination mechanics: if the superficies is time-limited it ends at expiry; if not time-limited either party may terminate with reasonable notice (special notice rules apply where rent is payable). Also, the superficiary’s failure to observe essential conditions — or, where rent is payable, failure to pay rent for two consecutive years — gives a termination ground under Section 1414.
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Destruction: destruction of the buildings (even by force majeure) does not automatically extinguish the right of superficies — the right survives the destruction.
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On expiry: when the right ends the superficiary may remove his buildings provided the land is restored; but if the landowner offers to buy the buildings at market value, the superficiary may not unreasonably refuse the sale. This statutory buy-out rule is important to negotiate around in big construction projects.
Superficies vs lease: quick practical differences
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Nature of interest: a superficies is a real right in the improvements and can look like ownership of the buildings; a lease grants a right of possession/use of land for a term (leasehold). Both can be registered, but their legal consequences differ. The superficies holder is owner of the improvement (useful for collateral and inheritance), while a lessee normally has only possession rights.
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Durations & renewals: both are commonly capped at 30-year terms in practice; however, the legal wording and renewal mechanics differ and should be chosen according to the commercial plan (financing, sale, tax).
Financing, mortgages and bank appetite
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Legal position: because a registered superficies creates a property-like right it can in principle be relied on as security or transferred; it is stronger than a mere contract. That said, whether a bank will accept a superficies as collateral depends on the lender’s risk policy, the term remaining on the right, and enforceability practicalities (the Land Office record, priority of other security and the credit package). Do not assume mortgage funding is automatic — expect lender due diligence and often conservative LTVs.
Practical drafting and transaction checklist (what to insist on)
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Register the superficies at the Land Office and record all documents on the title deed. Confirm registration fees and stamp duties with the Land Office.
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Define term, renewals and notice (if no fixed term, put explicit termination notice and rent-in-lieu rules in the instrument).
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Tax & costs clause: specify who pays Land & Building Tax, municipal fees, utilities, insurance and maintenance.
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Removal vs owner buy-out: fix a clear market-value buy-out mechanism on expiry (valuation method, timing and compensation) to avoid later disputes under Section 1416.
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Transfer, mortgage and right to encumber: state whether assignment, sub-letting or mortgage is permitted and obtain the landowner’s recorded consent to avoid priority fights with creditors.
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Dispute resolution and interim relief: include arbitration plus a carve-out for Thai court interim measures (common in cross-border development deals).
Bottom line
Superficies is a powerful civil-law tool in Thailand: when properly drafted and registered it gives the superficiary a property-like ownership of buildings while the landowner keeps the soil. It’s especially useful where foreign investors or developers need secured, transferable ownership of expensive improvements while land ownership cannot be transferred. But don’t treat it as a plug-and-play substitute for careful tax, mortgage and exit planning — practical enforcement, bank acceptance and Land Office practice vary and must be addressed in the deal documents.