Thailand’s restrictive land ownership laws—particularly concerning foreign individuals—have led to the widespread use of legal instruments that grant land use rights without transferring ownership. Among these, the right of superficies stands out as a particularly effective tool for those seeking long-term use of land for residential or commercial purposes.
This article offers a detailed analysis of the right of superficies in Thailand, covering its legal basis, scope, registration process, practical use cases, limitations, and termination. It is particularly relevant for property investors, foreign spouses, developers, and estate planners.
Legal Foundation
The right of superficies is codified in Thailand’s Civil and Commercial Code (CCC), Sections 1410–1416. It is classified as a real right (jus in re), meaning it attaches to the land itself rather than the person who holds it.
The CCC defines superficies as:
“The right to own buildings, structures, or plantations on land belonging to another person.”
This arrangement allows a party (called the superficiary) to own what is built upon the land, without owning the land itself.
Parties Involved
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Landowner: Retains legal ownership of the land.
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Superficiary (Grantee): Gains the right to use the land and hold ownership of the structures built upon it.
Key Features of Superficies
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Grants the right to construct and own buildings or other fixtures on another person’s land.
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The superficiary is not a tenant but a legal holder of a registrable real right.
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It may be granted for a specified period or for the life of the landowner or superficiary.
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Transferable and inheritable, subject to the agreed terms and proper registration.
Duration
Under Thai law:
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A superficies right may be granted for up to 30 years (fixed-term).
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Alternatively, it may be granted for the lifetime of the superficiary or the landowner.
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It can be renewed by agreement but cannot be automatically extended beyond the original maximum.
Registration Requirement
To be enforceable against third parties, a superficies agreement must be registered at the Land Office where the land is located. Unregistered agreements only create personal obligations (contractual), not real rights.
Registration Process:
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Submission of land title deed (Chanote only; Nor Sor 3 and lower titles may not be accepted).
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Superficies agreement (in Thai), signed by both parties.
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Identity documents of landowner and superficiary.
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Registration fees and government taxes paid.
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Annotation on the land title showing superficies registration.
Fees and Costs
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Registration fee: 1% of the declared value of the right.
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Stamp duty: 0.5% (if compensation is paid for granting the right).
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Legal fees: Optional, varies by firm (recommended for foreigners).
Use Cases and Practical Applications
1. Foreigners Building on Thai-Owned Land
Foreigners are prohibited from owning land in Thailand but may own a house built on land if granted a superficies right. Common in:
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Marriages where the Thai spouse owns the land.
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Long-term foreign residents wishing to build private homes.
⚠ In such cases, the foreigner should:
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Register the superficies before or alongside building construction.
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Maintain evidence that the house is separate property, not a gift to the spouse.
2. Real Estate Development
A Thai developer or landowner may grant superficies to a third party:
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For construction of a commercial building or resort.
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As part of a joint venture where ownership of land and structure is divided.
It provides a flexible, non-ownership-based model for land development, especially when long-term leases are insufficient.
3. Estate and Succession Planning
Superficies can be inherited if this is specified in the original agreement. This allows parents to grant use rights to children or family members without transferring land ownership.
Rights of the Superficiary
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Exclusive right to construct, own, and use buildings on the land.
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Right to transfer the superficies to another party (if permitted by contract).
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Right to mortgage the building (though mortgaging the superficies right itself is limited).
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Right to lease the structure or buildings erected.
Importantly, the superficiary does not have possession rights over the land beyond what is required to enjoy the right (unlike a leasehold).
Obligations of the Parties
Superficiary:
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Must use the land in accordance with the purpose defined in the agreement.
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Must maintain structures in compliance with local laws and zoning.
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May be required to return land to original condition if agreed upon after expiration.
Landowner:
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Must not interfere with the use rights of the superficiary.
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Cannot transfer or encumber the land in a way that contradicts the superficies.
If the land is sold, the new owner remains bound by the superficies right (if registered).
Termination of Superficies
A superficies may terminate due to:
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Expiration of the agreed period.
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Death of the superficiary or landowner (if life-based).
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Mutual agreement between the parties.
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Non-use or breach of agreement terms (if stipulated).
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Court revocation in rare cases of fraud or coercion.
Upon termination:
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Ownership of the building may revert to the landowner if no removal clause exists.
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Alternatively, the superficiary may be allowed or required to remove the structure.
Negotiating a clear exit clause is critical to prevent future disputes.
Comparison with Leasehold and Usufruct
| Feature | Superficies | Leasehold | Usufruct |
|---|---|---|---|
| Ownership of structure | ✅ Yes | ❌ No | ❌ No |
| Right to transfer | ✅ Often | ✅ With permission | ❌ Not transferable |
| Inheritable | ✅ If specified | ✅ If clause included | ❌ Ends on death |
| Duration limit | 30 years or life | 30 years max (renewable) | Lifetime of usufructuary |
| Registration required | ✅ Yes | ✅ Yes | ✅ Yes |
Superficies provides a stronger legal foundation for owning buildings separate from land ownership, compared to lease or usufruct.
Risks and Considerations
⚠ Improper drafting of the superficies agreement may limit enforceability. Use bilingual, legally vetted contracts.
⚠ Failure to register means the right has no effect against third parties, including future buyers of the land.
⚠ Disputes in family arrangements (e.g., between spouses or heirs) may arise if ownership of the building is not clearly documented.
⚠ Superficies is not a substitute for land ownership. It only gives rights to structures—not to the soil or land below.
Conclusion
The right of superficies in Thailand is a valuable legal instrument allowing individuals—particularly foreigners—to separate land ownership from building ownership. Whether used in family arrangements, commercial development, or estate planning, it provides a legally recognized, transferable, and often inheritable right. However, like all real rights under Thai law, its value depends on proper structuring, clear drafting, and formal registration at the Land Office.
