If you are a foreigner who has purchased a
condominium unit on a freehold ownership basis in Thailand, you may be under the
impression that part of the value you purchased was the peace of mind in knowing
that you could easily leave the unit to your heir. However, if your heir is also
a foreigner then, unfortunately, this is only partially true. Thailand's well
known stringent restrictions on foreign freehold ownership of immovable property
also curtail if and how a foreigner can own an inherited freehold condominium
unit.
Thailand's legislation
on condominium ownership is laid out in the Condominium Act (1979) and as
further amended (the “Condominium Act”). Only under certain conditions
does the Condominium Act allow foreigners to own a freehold condominium unit.
Perhaps the best known current foreign ownership restriction is the “49% foreign
freehold quota”; with very limited exceptions, foreign freehold ownership cannot
exceed 49% of the total floor space of a condominium project in Thailand.
Furthermore, pursuant to Section 19 of the Condominium Act, even where foreign
freehold space is available, only foreigners who meet one or more of the
following conditions are entitled to receive a freehold title to a condominium
unit in Thailand, regardless of how they received the unit:
1)
Any foreigner permitted to permanently reside in the Kingdom under the
Immigration Act;
2)
Any foreign immigrants permitted to enter the Kingdom under the Board of
Investment Act;
3)
Any alien juristic person registered under Section 97 and 98 of the Land
Code;
4)
Any alien juristic person qualified under the 24 November 1972
Announcement of the Revolution Committee No. 281 and which has had a Board of
Investment Certificate granted under the Board of Investment Act; or
5)
Any alien or alien juristic person who has brought foreign currency into
Thailand or who has withdrawn Thai Baht currency from their foreign resident
Thai Baht account or who has withdrawn money from a foreign bank on deposit in
Thailand. [Pursuant to Section 19 ter (5) of the Condominium Act, the amount of
currency required under this paragraph (5) is defined as “not less than the
price of the unit to be purchased”.]
The Condominium Act
outlines clearly that any foreign person who does not fulfil at least one
of these conditions is not entitled to own a condominium unit in
Thailand.
What does this mean with
regard to inheritance? Obviously, if you are a foreigner and your heir is a
foreigner then, the 49% quota would not be an issue as the unit would pass from
one foreigner to another maintaining the same foreign/Thai ownership ratio
before and after inheritance. However it is quite possible, even quite likely,
that your foreign heir might not meet any of the additional Section 19 criteria
for foreign freehold ownership of a condominium. In such case, while your heir
may have legally inherited your condominium unit, they will not be
legally eligible to continue owning it and Section 19 septem of the Condominium
Act, as follows, would then be applicable:
All foreigners not
qualified under Section 19 who receive the condominium unit either by
inheritance or in any other way, must report the matter to the relevant
administrative official within 60 days from the date they receive such property
and they must then sell the property within one year from the date they receive
it, otherwise, the provisions of Section 19 quinque shall be applied mutatis
mutandis.
Section 19 quinque of
the Condominium Act provides that if the said foreigner fails to sell the
condominium unit within the time allotted, the Director of the Land Department
shall have the right to sell the unit.
Thus, if your
condominium unit is inherited by your foreign heir, such heir must inform the
land officer at the Provincial Land Office or the Branch Land Office
respectively where the condominium is located within 60 days of such
inheritance. Then, if your foreign heir does not meet the criteria under Section
of 19 of the Condominium Act, such heir must comply with Section 19
septem Condominium Act and either sell the condominium unit themselves or face
having the Director of the Land Department sell the unit. Note, however, that
your foreign heir would have up to one year after inheriting the unit to either
sell the unit or comply with Section 19. Most likely the best, if not the
only, option for your heir to comply with Section 19 would be for your heir to
then transfer the relevant foreign currency into Thailand. After such transfer
your foreign heir would then be entitled to continue to own the freehold
condominium unit in perpetuity.
Duensing Kippen is a multi-service boutique
law firm specializing in real estate and corporate/commercial transactional
matters as well as arbitration proceedings arising therefrom. It is the only
such firm in Thailand that also compliments its transactional expertise with a
core tax law practice. Duensing Kippen can be reached at:
chiangmai@dktaxandlaw.com or for more information please visit them
at:
www.dktaxandlaw.com
Chiang Mai Creative City is a network and think tank of
representatives and participants who, together, aim to develop and diversify
Chiang Mai’s economy as well as create jobs and opportunities. As part of
this ongoing vision, the Chiang Mai Creative City has initiated the
Innovative Design Awards (IDA 2012) which aims to showcase and promote
innovative designs across several categories.
The Innovative Design Awards (IDA)
exists to recognise, celebrate and promote good, innovative and creative
designs, highlight uncovered and emerging talent, as well as show Chiang Mai
to the outside world in new and exciting light. Designs will be considered
if they are creative, show innovation in design, materials or functionality
as well as are of high quality. The designs also need to be created or have
a physical presence in Chiang Mai.
To this end, a panel of 20 judges
including designers, exporters, business owners, academics, architects,
members of the media and representatives from design and crafts
organisations, have been invited to select and propose some of the city’s
most innovative designs. The public is also invited to submit designs and
ideas for consideration. Once a shortlist has been agreed upon by the panel
of judges at the end of January 2012, the designs will be placed on line and
the public will be asked to vote for the final award winners.
The Innovative Design Awards is run on
a voluntary basis and designs and designers who are selected for the award
will receive recognition as well as support and mentorship from the
distinguished members of the panel as well as Chiang Mai Creative City’s
commitment to support their growth and talent by publicising the awards and
its winners around the world.
Innovative Design Awards is open for
submission until 31st of January 2012
http://www.creativechiangmai.com/en/ida/submissions/. The public will also
be able to make their votes online by mid February 2012 and the final
results will be announced in late March 2012.
Categories for consideration include
Public spaces, ‘urban furniture’; furniture and decorative items; garments;
jewellery, and ornaments (fashion) ; handicrafts (ceramics, wood based,
etc.); printed media; new media, software, web design, interfaces;
architecture and interior design; packaging; product design (e.g. food and
spa products).
Once the top innovative designs have
been selected and awarded there will be a press kit sent out to Thai and
international media of all showcased products, in the hopes that the world
can see the exciting designs and products coming out of Chiang Mai.
For more information please visit
www.creativechiangmai.com/en/ida/ or join the Facebook page at
www.facebook.com/idabycmcc.
