Usufruct Between a Thai and a Foreign Spouse: How to Protect the Right to Use Real Property

Why a Foreign Spouse Needs a Usufruct

When a house and a plot of land in Thailand are registered in the Thai spouse's name, the foreign partner formally has no rights over them. Land ownership is unavailable to foreigners (Land Code), and a joint purchase does not make the foreign spouse a co-owner of the plot: upon divorce or the death of the Thai spouse, the foreigner risks losing both the home and any legal recourse.

Usufruct (Thai: sidhi-kep-kin; English: usufruct; Civil and Commercial Code - CCC, §§1417-1428) is a real right to use another person's immovable property and to derive benefit from it. It is registered with the Land Department as an encumbrance on the title (for example, a Chanote/Nor.Sor.4) and therefore operates against third parties, not merely between the spouses.

What Usufruct Actually Provides

The usufructuary (the person in whose favour the right is established) receives:

• the right to reside in the house and to use the plot;
• the right to manage the property and to collect income from it - for example, to lease it out and retain the rental income;
• the right to fruits (CCC §1417) - both natural fruits (crops) and civil fruits (rental proceeds).

What usufruct does not provide:

• ownership or the right to sell the property - title remains with the Thai spouse;
• the right to transfer the plot to the foreigner in circumvention of land legislation.

An important practical limitation: a foreigner cannot register a lease exceeding 3 years without a special permit. This means that a foreign usufructuary will still be unable to enter into a long-term lease with registration at the Land Department - this follows from the restrictions on foreigners' rights rather than from usufruct itself.

Duration: Up to 30 Years or for Life

Usufruct is established either for a fixed term (not exceeding 30 years, CCC §1418) or for the lifetime of the usufructuary. In either case, the right terminates upon the death of the person in whose favour it was established: usufruct is not inheritable (CCC §§1418, 1426).

For the protection of a foreign spouse, the lifetime option is generally chosen. The rationale is straightforward: the Thai spouse remains the owner and may, for example, bequeath the house to the couple's children who hold Thai citizenship, while the foreign spouse is guaranteed the use of the home for the remainder of their life. After the usufructuary's death, the encumbrance is lifted and the owner (or heirs) receive the property free of restriction.

Usufruct may also be established in favour of several persons simultaneously.

Obligations and the Risk of Losing the Right

The usufructuary is obliged to maintain the property and to treat it with ordinary care (CCC §§1422-1423). They bear liability for any diminution in value or destruction of the property, unless they can prove that the damage did not arise through their fault. If mismanagement causes the house to fall into disrepair or lose value, the owner is entitled to seek termination of the usufruct. Routine repairs and ordinary upkeep are the usufructuary's responsibility; major expenditure and property tax are allocated under the rules in §§1424-1425.

Usufruct and the Matrimonial Property Regime

There is a nuance that is frequently overlooked. Property acquired during the marriage is by default treated as common matrimonial property (sin somros, CCC §1474), and land purchased with the couple's funds could in principle be considered jointly owned. However, since a foreigner may not own land, the Thai spouse typically signs a declaration at the Land Department stating that the funds used are their personal property (sin suan tua) and that the plot does not form part of the matrimonial community. This removes the bar to registration but effectively cuts the foreigner off from any share in the land. It is precisely for this reason that a separately established usufruct becomes the primary - and sometimes the only - protective instrument available.

Usufruct, Superficies, Right of Residence and Lease - A Comparison

For a couple that intends to build a house on the Thai spouse's plot, superficies is often the more appropriate instrument: it secures the right to own a structure on another person's land. Usufruct, on the other hand, is the stronger tool where the property is already built and the goal is to ensure both use and income.

What to Check and What to Bear in Mind

• Registration with the Land Department. A usufruct that is not recorded on the title is merely a contract between the spouses; it will not be enforceable against heirs or purchasers.
• Wording of the duration clause. For protective purposes, choose 'for life' (throughout life) rather than a fixed 30-year term.
• Verify the title. Usufruct is reliable on a Chanote or Nor.Sor.4; on weaker title documents registration may not be possible.
• Existing encumbrances. Obtain a title extract - a mortgage or other registered rights may limit the usufruct.
• Declaration of personal funds. Understand what the Thai spouse is signing at the time of purchase: it excludes the land from the matrimonial community.
• Construction plans. If building is intended, discuss superficies as an alternative to, or in combination with, usufruct.
• Rental income. Keep in mind the restriction on a foreigner registering a lease of more than 3 years.
• Maintenance of the property. Negligence may constitute grounds for termination of the right - document the property's condition and all expenditure.