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 These are short articles on different  scenarios that foreigners can come up against, we hope you find them helpful


 Why does a Foreign Husband Rent the House from his Thai Wife?

Some foreign husbands have been advised to rent their houses from their Thai wife (during their marriage) by making a 30 year Lease Contract and register it with the Land Office.

The husband gave his wife the money to buy the house and then he has to rent that house from her.

It appears strange and does not make sense, but it may be the only way to protect the husband from an unexpected situation with his wife.

To rent a house from his wife is not contrary to the Law, it is enforceable.

There are other ways for a Foreigner to protect his own interests when he marries a Thai woman. Eg, a Pre-nuptial Agreement / Loan Agreement between his wife and an assigned third person / Mortgage and other methods.

Copyright : Jatupon Cherbangkaew 

 


 Construction Contract

 To construct a house, besides finding a good contractor, you have to be able to control him to work correctly in time, cost and quality.  This is when a good Construction Contract is required.

 The following relevant documents and details should be contained within the Construction Contract.

Relevant Documents required for Contract Drafting:

  • Company Certificate / ID and address of the Contractor
  • Construction Drawing / Architectural and Engineering Drawing / Material List and its Specification . Quotation and BOQ (Bill of Quantities)
  • Working Schedule
  • Payment Schedule

Contract Detail - the contract basically should include the following:

  1. The Parties
  2. Scope of Work
  3. Contract Documents (attachment)
  4. Completion Date
  5. Extension of Time (under specific condition / event)
  6. Contract Price
  7. Payment Terms
  8. Variation
  9. Inspection
  10. Defect Liability
  11. Force Majeure
  12. Labour / Material / Equipment
  13. Testing / Sample
  14. Retention
  15. Fine / Penalty
  16. Breaching and Termination
  17. Consequence of Termination
  18. Notice
  19. Warranty Period

Before signing the Contract, check all details for accuracy.

 copyright : Jatupon Cherbangkaew 

 


 Renew Lease Contract

 Most foreigners in Thailand lease the land for their residence with 30 year terms and renewable conditions.  Such terms and conditions are legally effective and enforceable.

 In Hua Hin, some Housing Project Contracts will soon be approaching the final 7 to 5 years of their Lease Contracts.  In general every Lessee will need to renew the Lease Contract but may have worries about the possibility of the renewal in practice.

 In order to reduce this worry The Lessee should check the Contract and carry out the following actions:

  1. ​Check the Contract, is there any Clause of Renewal?  Renewal Conditions should clarify the future rental rate, and whether the same or a change in Terms and Conditions will be used.
  2. Is the Lessor alive?
  3. Is the Leased Property still under the ownership of the Lessor or has it changed?
  4. Before the expiry date of the Lease, The Lessee should notify The Lessor in writing that he wishes to renew The Lease Contract for another 30 years.

​​If  The Lessor defaults or refuses to renew The Contract, The Lessee may take the case to Court for legal enforcement.  The judgement will be made in favour of the Lessee in the end.

 

​copyright : Jatupon Cherbangkaew 

 


 Arbitration

Arbitration is a good and modern legal word when put into a Contract.  It sounds like a future problem amongst the Parties will be solved easily with the decision of the Arbitrator.

 

Yes it is, when applied to International Trading, which is unable to verify the jurisdiction of the case, or the matter of fact in a case is complicated and needs to be judged by a Specialist or Expert.

 

But it will cause a big problem when it is put into a simple Contract, eg House Construction Contract / Land Purchasing Contract / Lease Contract where the parties involved are in the same Country and same Jurisdiction.  Why?

 

  1. The legal action process is longer, by at least two times the normal process, therefore wasting time.
  2. The cost of legal action is at least two higher, or more than the normal process.
  3. The Loser of the case never accepts the decision of The Arbitrator.
  4. ​The argument will return to the Court again.

 

​copyright : Jatupon Cherbangkaew 

 


 Working in Thailand

When and Where to Apply for the Non-Immigrant ‘B’ Visa and the Work Permit

 APPLYING OUTSIDE THAILAND

 First Step: Non-Immigrant ‘B’ Visa

 The condition for applying for a Type ‘B’ Visa at the Thai Embassy, within your Own Country, in compliance with Thai Immigration Regulations, the Applicant needs to submit a W.P.3 to the Embassy.

To apply for a W.P.3, the Employer is responsible for applying on behalf of the Applicant while the Applicant remains outside of Thailand.  Once this document has been received by the Employer from the Ministry of Labour, it will only be valid for 30 days.  The Employer will, therefore, apply for the W.P.3 30 days before the Applicant next comes to Thailand.  Once the Employer receives the papers they will send the WP3 together with the Company Documents of the Employer to the Applicant via the Postal Service.  The Applicant is then required to take the document to the Thai Embassy in their own Country to apply for the Type’ ‘B Visa.

 Second Step: Work Permit

 When the Applicant arrives in Thailand, the Applicant will apply for the Work Permit by submitting Application and documentation required as stated below to the Labour Department.  After approval of the Labour Department the Applicant will receive the Work Permit.

 APPLYING INSIDE THAILAND

 First Step: Non-Immigrant ‘B’ Visa

 After arriving in Thailand and obtaining the 30 Day Transit Stamp or Tourist Visa, the Applicant needs to go to the Employer, who will then complete the necessary Immigration Forms to apply for a Change of Visa Status to a Non Immigrant ‘B’ Visa, which is required to work in Thailand.  The Application Forms will be submitted to the Local Immigration Office, who will check all the details.  Once everything is satisfactory, the Immigration Office will forward everything on to the Main Immigration Office in Bangkok for consideration.  This will take approximately 14 days.  Once the approval has been received you will need to go to the Immigration Department for the 90 day Non Immigrant ‘B’ Visa to be stamped in your Passport.  Within the last 30 days of the 90 day Visa expiring the Employee will then apply for the Visa to be extended for 1 year.

 Second Step: Work Permit

 The same as Second Step of Applying Outside Thailand

 Documentation Required

 The documentation required from the Applicant when applying for a Work Permit is as follows:

 

1                     Copy of Education Certificates

2                     The Curriculum Vitae or Resume

3                     Here address in Sweden

4                     Photographs (Size 3.5 x 4.5 cm) which must be taken in the last 6 months

5                     Marriage Certificate

6                     Birth Certificates of any Children they have

7                     Medical Certificate (apply in Thailand) to certify the Applicants do not suffer from the following: Insanity, Mentally Sick, Leprosy, Tuberculosis, Drug Addiction, Alcoholism, Elephantiasis or Tertiary Syphilis.

8                     The Employer’s Company Documents, eg, Company Certificate, Shareholder List, Corporate Tax Receipt, Company Employee List, Social Fund Receipt and Company Balance Sheet.

 

© Jatupon Cherbangkaew

 


 Which One is the Evidence for House Ownership?

 It is generally known that Foreigners cannot have Ownership of Land because it is forbidden by law, but they can have Ownership of a Building on the Land because there is no provision of law to clearly prevent this, therefore, to buy Property in Thailand it is often advised by a Lawyer or the Seller that Foreigners buy a Leasehold for Land and Freehold for House together.

 The evidence of Land Ownership is legally shown by the Land Title Deed which is issued by the competent Land Office, as provided by the Land Code.

 With regard to the House there is No Official Evidence, as provided by law, which has been issued by any Government Department, e.g. Title Deed, Certificate etc.  This matter leads to legal problems of what is legal evidence of Ownership for the House or Building.

 In practice many different kinds of documents have been used to show Ownership of the House e.g. Blue Book / Yellow Book / Construction Permit / House Construction Contract / House Purchasing Contract / and Court Order, but which one of these can be legally used?

 Blue Book and Yellow Book - There is a misunderstanding that the Blue and Yellow Books are Evidence of House Ownership, but in reality it is actually not evidence.  This document is only evidence of the Official House Address and a list of people living there.  The Blue Book is for Thai Nationals and the Yellow Book is for Foreigners, therefore, the Blue Book and Yellow Book are not to be used as Evidence of the House Ownership.

 Construction Permit – This type of document is issued by the Local Official under the Construction Control Law because before the construction of any Building / House the Owner or the Contractor must apply for Permission to Build and submit the Architectural and Engineering Drawings of the House to the Authorities to prove that the House will be constructed following to the Engineering Standards, then the Authority may issue the Permit to construct and will make an inspection of the construction to ensure compliance with the Drawings.  The said Construction Permit is not actually the evidence of the House Ownership but in such a document the House Owner is named and it is issued by the Local Officer so that the Holder of that document can use this as the evidence of House Ownership.

 Occasionally when applying for such permission, the House Owner does not submit the Application himself, he appoints his Construction Contractor / his Lawyer / Agent / etc to do this on his behalf, and the appointed person applies for the Construction Permit in his name as the Applicant and not the Owner.  The Local Office occasionally issues the Permit in the name of the Applicant as the Owner and not the actual House Owner.  When the house is constructed such person claims that they have Ownership of the House because they were named in the Construction Permit, in this matter the Contractor / Lawyer / etc cannot claim that they have Ownership of the House because the real Owner is the Employer, as defined in the Construction Contract, therefore, the real Owner is legally able to correct the Construction Permit at a later date.  It is important that the Application for the Construction Permit needs is made correct from the beginning to prevent the legal issue of the House Ownership.

 House Construction Contract – This is the document made between the Employer and the Contractor.  The House and its Ownership which is constructed under this document belongs to the Employer by law because he built his own House and did not buy or receive the House from anyone, therefore, this kind of House Ownership acquisition is not subject to Registration / Tax or any Fee the same as purchasing a House.  The House Construction Contract is one of the best documents for legal evidence for House Ownership.

 House Purchasing Contract – This is a direct evidence of House Ownership because you bought it.  The House is an immovable property and when buying or selling the Purchasing Contract will be void unless it is made in writing and its Ownership Transfer must be registered with the competent Registrar (Land Office), paying Tax and Transfer Fees as provided by law.  For the First Transfer of Ownership of the House, the Land Office always asks the Seller to submit the House Construction Permit as the evidence of House Ownership for his consideration before approval.  For Subsequent Transfers of House Ownership the Seller/s can refer to the evidence of the previous registration of transfer/s.

 Court Order – In case there are many people who claim Ownership of one House e.g. Mr A claims that he has Ownership of the House according to the Construction Permit, and Mr B claims he has Ownership of the House via the Construction Contract, then they can take this matter to the Court for a decision.  The Court decision, which is made in favour of any Party, is the evidence of House Ownership, binding to the Parties involved and also any Third Person as provided by the Civil Procedure Code.

 Hopefully this article will give you some insight into the actual Ownership of your House.  Any reader who is suspicious regarding the acquisition of Ownership of their house can refer to the above.

© Jatupon Cherbangkaew

 


 Advice when making a Last Will and Testimony

 Discuss with the Lawyer, the forecasting of all eventualities including problems which may occur after your death, and may cause problems in the implementation of the Will.

 The following matters should be considered:

 

1                     Confirmation / Verification of the Testator’s State of Mind / Legal Capacity / Sick / Ill / Incapable needs to be certified by a doctor or some liable person.

2                     List of Legatees

3                     Ranking of Legatees

Ranking is important and needs to be arranged / someone may die before the other.

4                     Disposition of Estates (Asset List)

5                     Nomination of Executor
There should be more than one / someone may die before the other.

6                     Function of Executor
Should be clear about how to deal with a medical cost / funeral cost / debt / claims / Executor Fee and necessary items to do through the Execution process

7                     Nomination of Child/ren Guardian
It should be planned who will take care of the child/ren if the Testator die / or the Testator and Legatee die together.

8                     Funeral Undertaking

9                     Two Witnesses are necessary for writing a Will.

Note

 The following persons cannot be witnesses in the Will:

1         Person/s sui juris (under 20 years of age)

2         Person/s of unsound mind / adjudged quasi-incompetent

3         Person/s who are deaf or blind

 

The writer of the Will or Witness/es cannot be a Legatee of the Will

 © Jatupon Cherbangkaew

 


 

Majority Control

Many Foreigners set up a Company in Thailand, and without an Alien Business Licence they need to have at least two (2) Thai Nationals holding not less than 51% Shares in the Company, and the remaining 49% of Shares held by Foreigner/s.

 Some Companies are real investments of both Thai and Foreigners, but some Companies are totally invested by Foreigners.  The Thais in such a Company are nominees.

 A foreign investor using Thai nominees holding 51% of the Shares in his Company need to protect himself from the majority vote of the Thai nominees in Shareholder meetings.

 A majority vote can legally get any resolution against the Foreigner investor to do anything in the Company such as dismissing or appointing Authorised Company Director, selling Company property etc.

 How can the foreign investor protect his investment?

 He needs to set or to amend the Company Articles with regard to the General Meeting of the Shareholders, fixing that ‘Resolution of the meeting requires at least …% of Shares in voting’.  The percentage of Shares can be fixed at 52% up to 100%, as the case may be.  The Thai nominee is, then, no longer a majority unless having foreign investor consent.

 

© Jatupon Cherbangkaew

 

 

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