Land purchase in GFs name?

[KoratCat]

In another local forum the Nakhon Ratchasima District Court is said not to have upheld its former diction in a similar case known to me and the constant diction of the Supreme Court of Thailand in numerous cases over the last 40 years that land purchased by a foreigner (and evidently with the foreigner's money only) in an agent's name (girlfriend etc) in violation of sections 111 and 113 LandCode still does belong to the foreigner and has to be disposed of by him according to these sections or it will be auctioned by the Land Office on his behalf and the proceeds given to him.

The details of the case discussed in that forum are not known to me. In the topic it is stated that the plaintiff lost the case and is given hope for a settlement of 50 % during the appeal by the lawyers he consulted. :

In that former case the court had decided formally against the foreigner because the lawyer was not pleading on the foreigner having acquired the land for himself with the gf acting as agent as in these sections. He asked for the money back from the GF claiming she had cheated his client. The court denied this and said the foreigner cannot claim the money for the purchase because he purchased and owns the land through her, she acting on his behalf though illegally. Therefore he has to be given at least six months to sell the land, in case of failure to sell within the given period of at least six but not more than twelve month the land had to be auctioned by the Land Office on behalf of the foreigner and the proceeds given to him.

Because the foreigner's lawyer did not understand this decision he only advised him to appeal against it, keep on claiming he had been cheated and wanted to be refunded. The foreigner asked many different thai friends of his to try and translate the decision to him, and then decided not to appeal. His lawyer cancelled further representation upon this. So the foreigner went to the Land Office alone where the officials agreed with him that he has to sell the land, and of course the proceeds were to be his. Little problem point was the foreigner's lawyer's attitude who did not understand the court's decision being fully to his client's advantage. So the foreigner could not secure the landpaper given to him by the court, the court gave it back to the GF's lawyer.

She then transferred the land to her cousin, one official in the land office complying for unknown reasons. Then the cousin let a lawyer write a notice of eviction to the foreigner from the land where he would live as a dweller only. Foreigner wrote back, that he thinks the transfer to the cousin is invalid because she had neither purchased the land in Good Faith nor for its value. But she could buy it from him. The cousin took him to court for eviction.

The foreigner filed a counter claim for cancelling the transfer of the land to the cousin. First thing the court did was ask the cousin for a much higher court fee than the 200 Baht for an eviction case since her apparent intention was to have an ownership "court-certified". 9.800 Baht more she had to pay to get her case not thrown out. During the court's hearings of course she could neither prove that she had acquired in Good Faith nor that she had actually paid for the value of the land. So the court regarded the transfer as fraudulent and denied her eviction claim, cancelled the transfer from the GF to the cousin, ordered the Land Office to make sure the land got disposed of as provided by the law and the foreigner was given the proceeds. The lawyer who was representing the foreigner in this second case easily obtained the landpaper from the court.

The gf who was ordered by the court to be co-defendant to the counter-claim went to Appeal Court. The Appeal Court confirmed the Nakhon Ratchasima District Court's decision. She still didn't have insight and went to the Supreme Court. The Supreme Court also confirmed the District Court's decision and declared it as final. The Land Office did not order the foreigner to sell the land within six months or one year. He had a lot of time to find a buyer. Upon being presented the final decision of the Supreme Court confirming the Nakhon Ratchasima District Court's decision they complied and everything was ok. Foreigner got the full proceeds from the sale of the land.

The moral of the true story is that the lawyer in the first case caused all the trouble of the second case by his not understanding the court's decision, though everybody in Korat said "He's a very good lawyer, he even writes books for teaching law . . .". There are no doubts about his integrity. Just sometimes it's good to look for a second and maybe even third opinion . . . and maybe better not by lawyers only . . . There are lots of people around with the ability to think and without the ties of lawyers making money one way or the other . . .

[mcmurphy]

Interesting!
Heard of many cases where the girlfriends declared the land their own because their name was on the landpaper. About every farang goes for claiming money back from the girlfriend instead of admitting that he bought the land in violation of the law not permitting him to buy land. Usually the farangs in those cases end up in getting half of the value when selling it because they surrendered to the persuasion of their own lawyers to settle. Guess the lawyers had a hand in that making more money than their fee. It's certainly better to think a case over by yourself and make sure the lawyer agrees on the way you want it to be done. Well, admit that many people who think they're so clever don't know anything about how law works either. They only "know" a lot when filled up. But for the appointments with the lawyers of course they gotta stay sober. And then all they can do is say "Yes Sir! Please do it for me miserable creature the way you think best. Because only you know. Amen!"

[sebastien]

Dear Koratcat,

You start your post with:
"The details of the case discussed in that forum are not known to me." I believe I know this case very well. It's not an easy one and it's not finished. The client gave us permission to talk about his case but I prefer not to mention too many details. We are not happy with the decision but I can tell you he had no other choices than go to Court. Negotiations were impossible at the beginning and they are still not completed.

If you can, I would like to have more details about the other case you are talking about? The one that went to the supreme Court? Who are the lawyers, who is this person from? I am very interested by this decision. I almost thought you were talking about our case but the way you tell the story, it CAN'T be the same. I believe foreigners should help each others and you can help a friend of mine, also a client.


Because the foreigner's lawyer did not understand this decision he only advised him to appeal against it, keep on claiming he had been cheated and wanted to be refunded.

A lawyer that doesn't understand a decision will not advise anyone to appeal! It is stupid. You appeal if you have grounds....I am a Canadian lawyer and would never do this. Anyway, can't always understand in Thailand!

The gf who was ordered by the court to be co-defendant to the counter-claim went to Appeal Court. The Appeal Court confirmed the Nakhon Ratchasima District Court's decision. She still didn't have insight and went to the Supreme Court. The Supreme Court also confirmed the District Court's decision and declared it as final. The Land Office did not order the foreigner to sell the land within six months or one year. He had a lot of time to find a buyer. Upon being presented the final decision of the Supreme Court confirming the Nakhon Ratchasima District Court's decision they complied and everything was ok. Foreigner got the full proceeds from the sale of the land.

Again, this decision could help a lot a British man in Korat. It would be great for me to have more details and talk to this foreigner. I also have one or two decisions involving the same matter.

Everybody in Korat said "He's a very good lawyer, he even writes books for teaching law . . .". There are no doubts about his integrity. Just sometimes it's good to look for a second and maybe even third opinion . . . and maybe better not by lawyers only . . . There are lots of people around with the ability to think and without the ties of lawyers making money one or the other way . . .

I am not sure who you are talking. Who is a very good lawyer? It looks tainted when try to insinuate things but I agree with you on some points: You don't always need a lawyer. However some lawyers work hard, help people and don't cost so much money. I did 5 years working for some NGOs without any salary. So, it wasn't for money. Why? Why do people teach? Why do the join the police? Are all politicians corrupted?

When it comes to doctors or dentist, engineers or architects, we never say it's usuless. Some lawyers cheat, many don't. I might be preaching for my profession but lawyers can also make you save a lot of money. If this client had come to see me before buying his house on his gf's name, I would have protected him with a usufruct contract, or a lease, or a loan contract, or build a company or partnership, and it would have cost him less than 15K all included for most of these services. He wouldn't have lost his house and land. And have a look about what I wrote on our website about fees:

"We encourage potential clients to research law firms for services provided and cost of those services prior to choosing a firm to work with." (http://www.koratlawyers.com) That's how it should be. Look for the price, and look for the services and quality.

You can send me a private message at koratlawyers@gmail.com with all the information you know. It could help a lot of people. Forums like this one are also a good source of information. Thanks.

[KoratCat]

Everybody in Korat said "He's a very good lawyer, he even writes books for teaching law . . .". There are no doubts about his integrity. Just sometimes it's good to look for a second and maybe even third opinion . . . and maybe better not by lawyers only . . . There are lots of people around with the ability to think and without the ties of lawyers making money one or the other way . . .

I am not sure who you are talking. Who is a very good lawyer?

That's what everybody in Korat said about the lawyer who represented the foreigner in the first case and contradicted him about the interpretation and value of the court decision. But some other people in Korat (lawyers, government officials etc.) helped the foreigner to understand the decision being really in his favour though he lost that first case formally.

Don't worry, I was not talking about you or your associates. He was very old, so I guess he might have died already. It's been a while . . .

[sebastien]

I don't worry: and my partners are old too! Could have been them!

There are many things I don't understand in Thailand and one is how they judge lawyers. With respect, many of them don't really know the REAL law. Real debates like abortion, death penalty, etc. I know it's more about politic than law but law IS the expression of politics.

Most Thai lawyers, especially in rual areas or in Isaan, have the same practice for years and they are not really up to do researches, to prevent problems, etc. Thailand is not a country where 'contradiction' is well seen. They always want to get some agreements...to avoid a trial. I love alternative justice, mediation, and believe they worst agreement is better than the best judgment. But I was not impressed so far by the quality of lawyers here. In the near future, I intend to work with younger lawyers, speaking English and who studied in BKK (if possible). They are more westernized, understand our needs, are quicker. Working now in Pattaya with many of them, I feel more confident and get a better response.

Anyway, thanks for all information you can send me about this case. I appreciate.

[KoratCat]

Anyway, thanks for all information you can send me about this case. I appreciate.

OK, most important is the first case since it was there where the court established that the GF doesn't own the land but is registered on the landpaper on behalf of the foreigner only. The second case that went up to the Supreme Court was only about cancelling the fraudulent transfer from the GF to her cousin. But of course the Court acknowledged there the interpretation that actually the foreigner owned the land.

It is not known to me what the lawyer wrote as claim and reason on the written complaint. There were language barriers.

Anyway, more important is what the foreigner explained through a translator when asked by the judge at his deposition. Told here in specific terms he was asking for restitution by compensation for the breach of contract between him and the GF which had been breached by the GF. The contract was the GF's promise to marry him, upon which he bought the land in her name as a future home for the family. And that he wanted his "investments" back since she immediately broke off when the land was paid and transferred, and before a marriage. What to answer upon that most important question had not been rehearsed with him by his lawyer. He was just told to tell the truth.

During the investigation mainly documented evidence was submitted to the court on the foreigner's behalf that the land had been paid fully by the foreigner: bankbook with transfer from abroad and withdrawal entries. As witness a bank manager was questioned for the meaning of the entries in the bankbook. The GF's lawyer tried to argue his client had paid half of the price for the land, submitting as evidence the receipt signed by the seller at the Land Office when transferred. It said on that receipt that the seller had received the full amount from her. The receipts the foreigner had for having given the money to the seller and the Land Paper (Chanod) had been stolen from him by the GF in the night before she broke off. The seller was heard by the court and testified to have received money from the foreigner for the land but left it unclear whether the foreigner had made all of the payments. The memory! The GF could not submit any documented evidence that she actually had the money she pretended to have paid as share. The foreigner's lawyer got her to many contradictions during cross-questioning. She said she had been given the money by another foreigner she named and who had died shortly before.

During his deposition the foreigner also mentioned a fact he had found out about the GF after she broke off: that she had had a buddhist marriage ceremony to this other foreigner shortly before she promised to him, and that in the night after she broke off she stayed with that other foreigner at a hotel in Korat.

In our analysis the court based it's decision mainly on those findings:

- that the foreigner had paid for all,

- that the GF was married to the other foreigner at the time of the purchase - even if it was a buddhist marriage only - and therefore was not allowed to purchase any land herself.

- that land ownership by a foreigner through an agent who is registered as owner on behalf of a foreigner is possible because Sections 111 and 113 LandCode provide the Land Office with the power to punish offenders (up to 20.000 baht or up to three months in prison for agent and foreign owner) and resolve such unlawful ownership by ordering to sell within a given period of six to 12 months or auction for him if not complied.

Though the foreigner lost this first case formally the court did not include an obligation for him to reimburse the GF's expenses for defense.

And the "beauty" of that decision is that the GF would have had a hard time appealing against it because she formally won.

Please ask if you need to know more about this.

If there is an urgent need for more information copies of the decisions (in thai) could be obtained by the foreigner at the archive of the Nakhon Ratchasima District Court or the lawyer who handled the second case could be approached for help. IMO he has proven that he is a lawyer qualified for this. Problem is though that he does not easily take up cases for new clients, because he's very demanded. But for nice people in need he might have an open ear.

[Isaan Rollie]

If this client had come to see me before buying his house on his gf's name, I would have protected him with a usufruct contract, or a lease, or a loan contract, or build a company or partnership, and it would have cost him less than 15K all included for most of these services. He wouldn't have lost his house and land.

I wonder what good a usufruct is, when you feel like running far away after you've just made a fool of yourself.

[sebastien]

You are absolutely right!

Let's face it: it's illegal for a foreigner to own land in Thailand (with few exceptions, BOI, etc.)
There are no 100% safe solutions. But a lease, a usufruct are quite safe.
Some build a Thai limited company, but that's another illegal way, you have to pay accounting, etc.

You want a safe way, be able to go back in your country anytime without paying too much, RENT.
You have a nice wife, live happy together and trust her enough, maybe kids, LEASE or USUFRUCT.
It's a better investment than renting a place.

There is another way, with superficies and a lease. But that is starting to be complicated.
Superficies are a kind of usufruct where the owner grant a right on the superficies of the land to someone else, for the
rest of her/his life. Meaning a Thai wife or gf gives superficies. If she dies, it's finished but not the lease. This is why you combine the two. If you build a house on this right, and separate (for example) you can use a theory called UNDUE ENRICHMENT and claim the plus value of the land because of the house you build...
I know a Dutch Lawyer in Phuket who likes this method. He used to work in Samui for a large international law firm.
I still prefer the usufruct option...

[Naam Jai (?2008)]

Thanks
Very helpful Sebastian.

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[Harry]

Hello Koratcat,
thanks for your detailed account. It's very interesting. I heard of handling the problem like that before instead of giving in to the lady's greed. Could you tell us a little more like how long did it take to get to the court's decision and whether there had been any punishment for the illegal purchase?
Thanks

Harry

[KoratCat]

Hi Harry,

welcome. The first case establishing the real ownership took not more than 8 months. The second case with the appeals to Appeal Court and Supreme Court took about five years. But that was mainly due to the GF appealing two years after the deadline.

As to a punishment the court had recommended to the Land Office to seek punishment for the GF for her role as agent. Whether the Land Office did follow that advice is not known. But considering the circumstance that they let her transfer the land to her cousin it is not likely at all.

As to the foreigner he did not receive anything about a punishment. But that one official at the Land Office who signed for the transfer to the cousin made a remark to the foreigner obviously meant to scare him to leave and give up: the police were looking for him.

When his lawyer in the second case was looking at the court file from the first case he saw a letter from the Land Office to the court, signed by a known official at the Land Office asking the court to punish that foreigner. The members of that court for civil matters obviously didn't know what to do about that. So they just filed that piece of paper. In any case the limitation of time for a misdemeanour like that had run out already.

I hope that answers your question.

KC

[Jimmie1958]

Thank you for this very clear and informative description of that case and matter. Confirms totally that I was taken for a ride in my own very similar case when the lawyer advised me to agree to a settlement.

And those farangs who talked about THE STRENGTH TO WALK AWAY

Even if it is a long road you feel a lot better having tried!

Aloha

Jimmie (back in the US)

[KoratCat]

Excellent info to this topic can also be found there

http://www.samuiforsale.com/knowledge/t ... rship.html

[Stanley]

Many thanks for this report, KoratCat! I do understand things a lot better now. Hope my lawyer does, too, or that I can make him understand.
greetings
stan