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  1. #1
    Thailand Expat
    William's Avatar
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    So you want to own property in Thailand?

    An article I have written for my fellow members to chew over and flame me for:

    So you want to own property in Thailand?

    * Note: the following is intend only to provide the reader with an overview of the issues that need to be considered when buying property (read "land") in Thailand; it is not intended to be a comprehensive guide, nor is it intended to constitute legal advice. In the event that you are contemplating buying property in Thailand, it is strongly recommended you seek the advice of a reputable lawyer in Thailand.

    At some point or another, nearly every foreigner who makes the decision to live in Thailand long-term will consider whether or not to buy property here. However, unlike [likely] the case in their home country, a quick search of Google will show that purchasing property in Thailand is nothing if not fraught with risk. The following is intended as a brief Guide providing an overview of the issues at-hand for just such a group of foreigners.

    Section 86 of the Land Code
    In effect, Section 86 of the Land Code 1954 ("Land Code") places a general prohibition on foreigners owning land in Thailand by providing, inter alia, that:

    "aliens may acquire land [in Thailand] by virtue of the provisions of a treat giving the right to own immovable properties* and subject to the provisions of this Code."

    [* note: By virtue of Section 139 of the Civil and Commercial Code of Thailand ("CCC"), "immovable properties" denotes "land or things fixed to, or forming a body with, land"]

    As, currently, there is no "provisions of a treaty" in place "giving [foreigners] the right to own immovable properties"; foreigners are generally not permitted to own land, unless (i) the provisions of the Land Code afford others; or (ii) other specific Thai law is in place which affords foreigners this right.

    Having said that there is a general prohibition on foreigners owning land in Thailand, by virtue of the aforementioned Land Code and other specific Thai law in place, foreigners may acquire and own land in Thailand in any one or more of the following three (3) circumstances:

    1 Section 96 bis of the Land Code
    Enacted in 2002 by virtue of the Ministerial Regulations Governing Bases, Procedures and Conditions Respecting Acquirement of Land for Use as a Residence of Aliens (2002), Section 96 bis of the Land Code permits a foreigner to acquire and own land in Thailand, with the following conditions:

    (a) the aggregate area of land purchased cannot be more than 1 Rai (equivalent to approximately 1,600 sq. meters)

    (b) the foreigner must import into Thailand a sum of not less than Baht 40 million

    (c) the Baht 40 million imported into Thailand must be invested in any one or more of the following investments for a period of not less than 5 years:
    (i) government bonds, bonds issued by the Ministry of Finance which secure capital or interest, Bank of Thailand bonds, and/or bonds issued by Thai State Enterprises (as defined under the State Enterprises Act)
    (ii) a property mutual fund or mutual fund for resolving the financial problems of financial institutions under the laws and regulations set out by the Stock Exchange of Thailand
    (iii) the share capital of either a private or public company that has been afford investment promotion privileges
    (iv) any investment declared an eligible investment by the Board of Investment

    (d) permission must be sought, and be given, by the Minster of Interior.
    Moreover, in addition to the above, it is important to note the following:
    (i) the investment of Baht 40 million does not include the amount you will pay as the purchase price of the property, nor any repairs/upgrades you make to the property;
    (ii) the property purchased must be used for your own, or your family’s, residential purposes
    (iii) the property cannot be used in a manner deemed contrary to the good morals and local custom of the people of Thailand, e.g. you cannot use the property as a casino
    (iv) if the Minster of Interior gives you his consent to purchase the property, you (or your family) must take up residence in the property within a period of 2 years from the date on which you register ownership of the land

    If you fail to abide by any of these requirements, you will be required to sell the land within a period of not less than 180 days nor more than 1 year; failing which, the Director-General of the Department of Land has the power to sell the property on your behalf.

    2 Section 93 of the Land Code
    Section 93 of the Land Code permits foreigners to own land in Thailand in the event that they acquire the ownership of such land by virtue of being the lawful heir to an estate. Nevertheless,

    (i) permission from the Minster of Interior to the ownership of the land needs to be sought and obtained
    (ii) the aggregate area of land allowed to be owned cannot exceed that permitted by law; for example, 1 Rai for residential purposes; but it is possible to owner a large area if the land is commercially used, such as a farm – for the exact area currently allowed, reference needs to be made to the regulation issued

    failing which, as is the case under Section 96 bis of the Land Code, you will be required to sell the land within a period of not less than 180 days nor more than 1 year; failing which, the Director-General of the Department of Land has the power to sell the property on your behalf.

    3 Foreign Company
    The term ‘alien’, as used in Section 86 of the Land Code denotes both individuals and corporate entities. Nevertheless, there are certain circumstances under which a foreign company may be able to acquire ownership of land in Thailand. The two most outstanding examples of this are under:

    (i) the Notification of the Board of the Industrial Estate Authority of Thailand No. 3/2535 (1992), issued under the Industrial Estate Authority Act of Thailand 1979
    (ii) by virtue of Section 27 of the Investment Promotion Act 1977.
    Even here though, the foreign company will have placed upon them severe eligibility requirements and will be forced to sell the property if they fail to maintain their eligible status.

    What are my alternatives?
    As you can no doubt see, being a foreign resident in Thailand is not all together conducive with owning property here. This is not to say, however, that you do not have alternative mechanism that you can make use of. The following are a few of the more common ones currently in place:

    1 Thai Limited Company
    The general prohibition in place under Section 86 of the Land Code relates to foreigners (the word actually used is "aliens", as is the common practice under Thai legislation – because the translation [in Thai] of the word "foreigner" normally denotes a Westerner, whereas "alien" is the broader term used for all non-Thais). In this regard, by virtue of Sections 97 and 98 of the Land Code, a "foreigner" is deemed to include:

    (i) a private or public company with more than 49 per. cent. of its registered capital held by foreigners, or where more than half the shareholders of the company are foreigners (regardless of the capital held by them)
    (ii) a limited partnership or registered ordinary partnership with more than 49 per. cent. of its registered capital held by foreigners, or where more than half the partners of the partnership are foreigners (regardless of the capital held by them)
    (iii) associations or co-operatives where more than half the members are foreigners, or which has as its major objective to operate to the benefit, or substantially to the benefit, of foreigners’ interests
    (iv) foundations (charitable organisations) that have as their major objective to operate to the benefit, or substantially to the benefit, of foreigners’ interests
    (v) non-Thai nationals.

    As a result of this restriction and definition, it is possible to own land in Thailand by means of a vehicle commonly known as "a Thai majority owned but foreign controlled company". In short, it is generally accepted corporate practice in Thailand that a company can be structured along a preference share structure whereby the majority in both capital and shares can be held by Thais, but where the controlling interest over the company’s management and affairs vests with foreigners.

    However, before you can consider incorporating a Thai company to own the land on your behalf, you do need to consider the following issues very carefully:

    (i) Under Section 150 of the CCC, an act is voided if its object is expressly prohibited by the laws of Thailand. As foreign ownership of land in Thailand is a general prohibition by means of default (i.e. there are no treaties in place which allow for foreign ownership of land), it is questionable whether or not this constitutes an express prohibition (which is the requirement under Section 150). That said, some academics do hold that the Thai company structure set out above is voidable under Section 150. The honest truth is, the jury is still out on this issue.
    (ii) Under Section 1097 of the CCC, the formation of a limited company requires the participation of, at minimum, 7 shareholders. At least 4 of these need to be Thai. That said, Section 113 of the Land Code specifies that "any Thai who acquires land as an agent of a foreigner or juristic person under Sections 97 and 98 of the Land Code shall be punished with a fine not exceeding 20,000 Baht or an imprisonment not exceed 2 years, or both." As is the case with Section 150, a number of Thai academics hold that Thais holding shares in Thai companies incorporated for the purpose set out above are falling foul of Section 113 of the Land Code.

    It is, however, generally accepted that if the company is a revenue generating company, as well as holding the land, then these problems are mitigated, but not all together eradicated. Moreover, although the shareholding limit under the definition set out in Sections 97 and 98 is 49 per. cent., it is generally accepted that prudent practice demand that the maximum foreign shareholding level be 39 per. cent., or less, in the company.

    In the event that holding land in Thailand by means of a "a Thai majority owned but foreign controlled company" appeals to you, you should review the article on this subject for further issues you’ll need to consider.

    2 Thai spouse/child
    Prior to 2001, any Thai [female] national who married a foreigner automatically lost her right to own land in Thailand. A number of reasons for this Draconian law were advanced, but the truth of the matter can be located in Section 1470 of the CCC, which stipulates that all property acquired after a marriage, under Thai law, is the common property of the husband and wife (minus any pre-nuptial agreement). As foreigners were not allowed to own land in Thailand, to avoid them having a common interest in land, neither were their spouses (and, it is worth noting, the wording used is spouse; thus, in theory, the law applied equally to Thai husbands with foreign wives. But, as the Thai husband was not required to change his surname, whereas the wife was (under Thai law in place at that time), the authorities rarely knew he was married to a foreigner).

    Following the publication of the Notification of the Ministry of Interior re Application for the Acquisition of Land by Thai National Who Has or Used to Have Alien Spouse and Juvenile Child of Alien Who Has Thai Nationality (published on 4 October 2001) this prohibition was lifted and Thai spouses of foreign nationals are now allowed to own land provided that the foreign spouse confirms in writing that all of the money used to purchase the land belongs to the Thai national spouse and that the foreign spouse has no claim over this money or the property as a common property of the marriage. As a result, foreigners married to Thais, or with half-Thai children, can use them as a vehicle to own land, provided that they accept they have no interest or claim over the land. Nevertheless, as mentioned above, under Section 93 of the Land Code, they can be named as heirs under a lawful will.

    3 Own the house, but not the land
    The general restriction in place under Section 86 of the Land Code relates to foreign ownership of land, there is nothing stopping you, as a foreigner, from owning a house. However, how practical would it be to own land, if you did not own the land? To answer that, you need to consider the following:

    (a) Lease: Under Title IV (Hire of Property): Chapter 1 of the CCC it is possible for a foreigner to lease land in Thailand; subject to two qualifications:

    (i) if the lease agreement is for more than 3 years, then the lease needs to be made in writing and registered at the Land Office (Section 538; and
    (ii) if the duration of the lease exceeds 30 years, the period will be reduced to 30 – which period may be renewed, but not for a period in excess of 30 years from the time of renewal (Section 540).

    Thus, subject to the above restrictions, you can enter into a lease agreement with the land owner, and thereafter build and own the house on the land.

    In the event that holding land in Thailand by means of a "lease arrangement" appeals to you, you should review the article on this subject for further issues you’ll need to consider.

    (b) Habitation: under Sections 1402 – 1409 of the CCC, a person inhabiting land has certain rights to that land, notwithstanding the fact they may not own the land. Thai law also has the concept of ‘adverse possession’, where you can acquire ownership of land if you inhabit it for a sufficiently long enough period without the express objection of the land owner; but this does not apply to foreign nationals.

    (c) Usufruct: currently a hot topic, usufruct allows the possessor of the land to posses and enjoy the land and to manage the land. Questions have been raised, however, whether foreigners making use of this structure is the acceptable manner in which its use was intended. We can only wait and see what the outcome will be.

    (d) Easement: it is possible for a Thai national (indeed Thai law itself) to provide a foreign national with an easement over the land – such as a right of access / right of way. The degree to the amount of area that an easement of such nature can be granted (i.e. 2 Rai?) is the debating point.

    4 Become a Thai national/citizen
    If you still want to own land in Thailand, and none of the above mechanisms works for you, then you are going to need to consider becoming a Thai citizen. In such an event, under Section of Thailand’s Nationality Act B.E. 2508 (1965), as amended by Act B.E. 2535 (1992) Nos. 2 & 3, a foreigner can apply to become a Thai national if they possess the following qualifications:

    (a) become sui juris in accordance with Thai law and under the law under which the applicant has nationality;

    (b) has good behaviour;

    (c) is regularly employed;

    (d) has been domiciled in Thailand for a period of not less than 10 years;

    (e) has knowledge and skill of Thai language sufficient to meet the requirements prescribed by the regulations under the act.

    Conclusion
    Although property ownership in Thailand can be problematic, it is not impossible. You will however need three essential requirements: (1) an ability to think outside of the box to construct a mechanism that best suits your needs; (2) plenty of patience; and (3) enough cash not to worry about the money you just invested in the Thai property. It is the last of these you should keep in the forefront of your mind: never invest in Thai property more than you are willing to walk away from.

    © Copyright ownership of this article belongs to William Jarvis. You are free to copy this article at liberty and you are also free to quote from this article in full. In either case you are asked, as a matter of courtesy, to make reference to the author as being just that. To this end, while not being particularly fussy, the author views the act of ‘passing off’ as being a particularly repugnant act done by those too stupid to work things out for themselves. Please respect my views on that – it’s not asking a lot!

    ...And finally
    If you have any questions relating to this article, please feel free to PM me or email me. I cannot promise that I’ll be able to answer your questions, but I’ll do my best.

  2. #2
    Elite Member kenkannif's Avatar
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    As always William....you're bloody brilliant (and thanks for the help yesterday mate!).

  3. #3
    Not an expat Fabian's Avatar
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    William, as a farang heir to a thai wife, how likely is it to get a permission under section 93 of the land code from the minister of the interior?

  4. #4
    punk douche bag
    ChiangMai noon's Avatar
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    why fabian are you dragging up these old threads?

    are you thinking of knocking your wife off?

  5. #5
    Not an expat Fabian's Avatar
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    No, CMN, she did not have any land because it's in my stepson's name. There just was a question on a german forum about this issue.

  6. #6
    Thailand Expat
    William's Avatar
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    Fabian:

    In all honesty, I think it would be remote. However, you would still have he right to seel the land if permission were not given - something you could not necessarily do if you were not the named beneficiary

  7. #7
    I am in Jail
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    It needs updating due to the new analysis made of the shareholder status of companies set up for land ownership purposes.

  8. #8
    Not an expat Fabian's Avatar
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    Thanks, William, but what do you mean by "seel"?
    Last edited by Fabian; 29-07-2006 at 10:14 PM.

  9. #9
    Thailand Expat
    William's Avatar
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    sorry Fabian, should read "sell"
    Last edited by William; 29-07-2006 at 10:33 PM.

  10. #10
    Thailand Expat
    William's Avatar
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    Quote Originally Posted by Smeg
    It needs updating due to the new analysis made of the shareholder status of companies set up for land ownership purposes.
    provided you can show that the shareholder is a "genuine" shareholder and not a "nominee" shareholder, then the fundamentals hold true.

    However, I would be the first to agree, this is probably not the best time to be using a ThaiCo to purchase land in Thailand

  11. #11
    ding ding ding
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    William, I became aware of this website the other day.

    I think it's the best out there, and no I dont have anything to do with it!

    Independent legal Internet Website - Property law, foreign land ownership. Koh Samui, Thailand

    It's pretty relevant to everywhere in Thailand and not just Samui, the owners dont seem to be selling anything and they really have worked hard to bring all that info into one place, I dont think they cntrl+c 'ed any of it!

    What do you reckon?

  12. #12
    Thailand Expat
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    I'll look at it, but whoever owns it best take down the Garuda symbol, as it's illegal to use this unless you have been award it. It's a little like getting the Queen's Award for export.

  13. #13
    ding ding ding
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    I just noticed the link to the list of Bangkok law firms on the homepage. I did not see that before. So they are painting the situation in dim light to drum up business for legal firms that pay for a link on the website?

    They state this:

    "To verify any legal information supplied in this website one should consult a reputable law firm in Bangkok without interest in the property market"

    and the link take you to a list of Real Estate related BKK lawyers?

  14. #14
    Not an expat Fabian's Avatar
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    Ah, now I understand. So you mean, if the farang is the beneficiary (or however that is spelt), he does not lose the money anyway?

  15. #15
    Thailand Expat
    William's Avatar
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    ^well Fabian, he may lose some money as a result of having to do a "fire sale" (minimum 180 days maximum 1 year), but it'll be a lot less than he would otherwise have lost

    EDIT - he might also be able to arrange a sale to a friendly 3rd. party

    Also, with luck, he may even get to keep the place

  16. #16
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    I have made some conclusions about "buying" land here. Hope they may help.

    1. Do not use a company unless you actually have a "real" reason to have one.

    2. Generally, use a lease.

    3. Do not try to tie your nominee up in legal knots that you think will keep you safe. It may only antagonise them and they are not safe.

    4. Rather, take pains to find the right nominee and make a pretty simple lease deal with them for 30 years. Add the extra 30 years even of it may not hold up. If you really want you could add a loan agreement. DO NOT make anything onerous or scary for them, it's not nice. Be willing to err on the loss side in the event of a loan agreement.

    5. Do not choose a nominee who asks for payment. Rather, buy them a meaningful present in appreciation.

    6. Tell them up front that you require very little from them apart from an hour if you sell or subdivide, but one thing you require is that they renew the 30 year agreement completely every, say 5 or 10 years. It may require a bit of tax to be paid.
    In the event of a turncoat nominee you will know 25 years before any possible eviction. The Thai mentality will not risk a definite modest payment now for possible benefit if they win the court case about validity of the extra 30 years in 25 years time.

    6. If you pick the right people with social connections to you, and remember the renewals, you'll probably have no problem at all.

    7. This one may be a brainfart or a sign of truly great deviousness. It has occurred to me that it may be possible to include rights to sell the earth from the land in the lease price. In many areas such as outside CM the dirt is worth about the same for fill as the land itself. So if you get a problem, get your money back by the truckload and give them back an unusable 60 ft deep hole in 30 years.

    having said this I've just been ripped off for a deposit by a farang here so I'm not that smart!
    good luck Cheeryble
    Last edited by cheeryble; 01-08-2006 at 12:49 AM.

  17. #17
    Thailand Expat
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    Quote Originally Posted by William
    EDIT - he might also be able to arrange a sale to a friendly 3rd. party
    I love this lawyer speak ie your mate who has Thai citezenship could pretend to buy it from you and then transfer it back, but lawyers aint allowed to say that in plain language, me , a cop mate and a lawyer were going to set up a company, the idea was that if it was a farang that was arrested I would speak to and prep him first and explain to him what he could tell the lawyer and what he couldn't, the policeman was there to advise, and then he would have his story to tell the lawyer, I would probably be rich by now or in jail if I had done it

  18. #18
    Newbie cozun's Avatar
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    I simply like to observe the situation that one may own a house but not the land it stands on.

    In Ayutthaya there is temple and Royal (belonging to the royal family) land, mainly found on what is called 'the island'. Some are known to live, practically to squat, on those 'properties' without legal permission. If the land is required and the people living on it have no proof or authorization of rightfully being there they have to move, understandably, but it can also happen to people living officially on those land surfaces. This means that many have sort of lease contracts in those areas to be able to stay. Still, the contracts can be annulled and you might be asked to leave if the land is needed, read can be seized.

    Further, because the 'island' is now a historical site protected under Unesco rules, if house or land owners can trace back or prove that their family owned, inhabited (may be lived) or leased the land they live on for a certain time (may be 100 years, I don't know anymore) or several generations (again I don't know how many), they are then the rightful title-holders or proprietors but (and this one is great) they are not allowed to sell it (because it is under historical protection rules) yet still the terrain can be forwarded to heirs (and renting or leasing might still be allowed).

    At least, that's what I heard lately and did not crosscheck it so can't confirm what is pretended, but it is interesting to contemplate the very possibility of the situation.
    So, remember, be careful if you rent, lease or buy land on or around the island of Ayutthaya.

  19. #19
    Razzaq
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    Great...

    nice useful information ...

    thanks for posting...

  20. #20
    Thailand Expat
    William's Avatar
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    ^just keep in mind that the article was written some 2.5 years ago and things may well have changed. As I no longer reside in Thailand, it is difficult for me to keep up-to-date with these sorts of things.

  21. #21
    Member Sebastien's Avatar
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    Very nice william. However, Usufructs are not a HOT topic and I would disagree to say "let's wait and see what will happen". This is civil law. It has been in the civil Code of Thailand since it's adoption. It has been tested in Supreme Court by many decisions. Not only that, but we have a copy of the land department manual and it's clear how it applies, what are the criteria, and how it works. Problems is corruption in Thailand, lack of stability in applying the law in different corners of Thailand. Commonwealth lawyers don't understand or didn't study Usufructs, how we can subdivise property in civil law. It's purely legal, no doubt about it, and there is nothing wrong with that. A sale is a sale. A gift is a gift. A lease is a lease. A usufruct is a usufruct. Some clauses of ANY agreements, including a preniptual or a marriage can be void. I would say that OVER warning people about usufruct against leases is only a misunderstanding of how usufructs work. Now, I am not saying that they are better for everyone. Each situation request to look at it, with all the factors and options available. You state many options and that's quite nice. You didn't mention SUPERFICIES and it's an important part of property.

    We uploaded the complete section of the civil code about property:
    http://isaanlawyers.com/images/Comme...20Property.pdf

    And the land code:
    http://isaanlawyers.com/images/Land%20Code.pdf

    No method is perfect as you perfectly noted, there are section prohibiting foreign ownership of land in Thailand and sections that allows it. If some lawyers and real estate agents are selling the idea to separate the land and the house, as you mentionned that it is possible, this could be a big problem when it comes to inheritance, divorce, etc. I know what "undue enrichment" is, I know "sin somros" and the confirmation letter that foreigner must sign when married and the spouse buys land:
    http://isaanlawyers.com/images/lette...nfirmation.jpg

    Samui for sale has good information. I respect the foreign lawyer, that I know, who worked on this site with Thai partner. However, I believe the following information about usufruct is MUCH more accurate and up to date:
    http://isaanlawyers.com/Usufruct%20a...20Thailand.pdf

    The right of habitation is very limited to the land. It's normally on the house. That's why a usufruct will be a better protection as it fully covers the land.

    I would have love to have a beer with you William but heard that you left for another paradise...

    Sebastian.

  22. #22
    The Cat
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    Quote Originally Posted by Sebastien View Post
    Very nice william. However, Usufructs are not a HOT topic and I would disagree to say "let's wait and see what will happen". This is civil law.
    Indeed and civil law does not allow foreigners to own land in Thailand.
    And it is not going to change soon.
    So, in conclusion, you can own property but not the land it is sitting on...

  23. #23
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    FYI (and depending on those who land on their feet and in power here in the coming weeks) the laws in Thailand may change and by adopting the same land lease laws as Singapore in the very near future.
    That means a foreigner can lease a property fo a period of 99 years and an increase from the existing 30/30 year lease terms offered.

    IMO leasing land here is the only real legal way to do it and as you own the house outright, with the house title books being registered in your name why risk buying land through a bogus company.

    Everything is registered at the land office and if you have proper contracts drawn up your as sweet as a nut.

  24. #24
    The Cat
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    Quote Originally Posted by Loy Toy View Post
    That means a foreigner can lease a property fo a period of 99 years .
    Considering that in the 99 years in question, he is sure not Thai government won't change the law or the constitution.
    He's indeed safe, they only change it every year...

  25. #25
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    Quote Originally Posted by Bluecat View Post
    Quote Originally Posted by Loy Toy View Post
    That means a foreigner can lease a property fo a period of 99 years .
    Considering that in the 99 years in question, he is sure not Thai government won't change the law or the constitution.
    He's indeed safe, they only change it every year...
    Quite correct Bluey. There are risks involved of course but I cannot see the government over turning a decision that they need to make because the country is bleeding at the moment. (particularly the real estate business)

    All of the land and properties I have purchased here is in my wifes name and I don't hope I regret my decision but what the heck. Gotta spend your money somewhere and for me here is as good a place as anywhere else.

    Shrewd and calculating Risk Takers usually prosper. The rest can suit themselves.

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