What Is Superficies?
Superficies is a real property right under Thai law that allows one person to own buildings, structures, or plantations on land that belongs to someone else. Unlike a simple lease where you only have the right to use a property, superficies creates actual ownership of the structures themselves, completely separate from ownership of the land.
For foreigners in Thailand, this is significant because while land ownership is heavily restricted under Land Code Section 86, superficies allows you to legally own the physical buildings you construct or purchase, even on land you cannot own outright.
Civil and Commercial Code Section 1410
"Superficies is a real right by virtue of which the superficiary is entitled to own, on or under land belonging to another person, buildings, structures or plantations."
This establishes superficies as a distinct property right, not merely a contractual arrangement.
Key Characteristics of Superficies
- Real Right (Not Personal): Superficies is registered at the Land Office and binds future owners of the land, not just the original grantor
- Separate Ownership: Buildings and structures become legally distinct from the land they sit on
- Transferable: The superficiary can sell, transfer, or mortgage the structures independently
- Inheritable: Upon death, superficies rights pass to heirs according to succession laws
- Maximum 30 Years: If granted for a longer term, it automatically reduces to 30 years
Superficies vs. Lease: Critical Differences
Many foreigners confuse superficies with a long-term lease, but they are fundamentally different legal arrangements with different protections and limitations.
| Aspect | Lease (CCC Section 537-571) | Superficies (CCC Section 1410-1416) |
|---|---|---|
| Nature of Right | Personal right (contract-based) | Real right (property-based) |
| Building Ownership | Buildings typically belong to landowner | Buildings belong to superficiary |
| Transferability | Limited; requires landlord consent | Freely transferable without consent |
| Mortgage Rights | Cannot mortgage leased property | Can mortgage buildings separately |
| Land Sale Protection | Registered lease binds new owner | Superficies always binds new owner |
| Maximum Term | 30 years (CCC Section 540) | 30 years (CCC Section 1411) |
| End of Term | Must vacate; improvements often lost | Right to remove structures or compensation |
Why This Matters for Foreigners
If you only have a lease and the landowner sells the property, your lease rights depend on proper registration. With superficies, you own the buildings outright, and any new landowner must respect your property rights. This provides significantly stronger protection for your investment.
Registration Process at the Land Office
Superficies must be registered at the Land Department to be legally valid and enforceable. An unregistered superficies agreement provides no real property protection.
CCC Section 1411
"Superficies can be created only by registration for a period not exceeding thirty years, or for the lifetime of the owner of the land or for the lifetime of the superficiary."
Registration is mandatory, not optional, for superficies to have legal effect.
Required Documents
- Original land title deed (Chanote or Nor Sor 3 Gor)
- Passports of both parties (original and copies)
- Superficies agreement in Thai (prepared by lawyer recommended)
- House registration of the landowner
- Building permits and construction documents (if structures exist)
- Applicable fees and taxes
Registration Fees
- Registration Fee: 1% of the assessed or declared value (whichever is higher)
- Stamp Duty: 0.1% of the value
- Withholding Tax: May apply depending on value and parties involved
Practical Tip
The registration process typically takes 1-3 hours at the Land Office if all documents are properly prepared. Arrive early and bring a Thai speaker or your lawyer to ensure smooth communication with officials.
Duration: The 30-Year Term and Renewal Considerations
Like leasehold, superficies is subject to the 30-year maximum term limitation under Thai law. Understanding the options at the end of this term is crucial for long-term planning.
Term Options
- Fixed Term (up to 30 years): Most common arrangement with specific end date
- Lifetime of Landowner: Ends when the land owner dies
- Lifetime of Superficiary: Ends when you (the building owner) die
The "30+30+30" Myth
Some developers claim you can automatically renew superficies for additional 30-year terms. This is misleading. While you can negotiate renewal options, they are not guaranteed and depend entirely on the landowner's willingness to grant a new superficies at the end of each term. Future renewals cannot be legally pre-registered.
What Happens at Expiration?
CCC Section 1415
"At the end of superficies, the superficiary may remove the building, structure or plantation which he has acquired or made, but he must restore the land to its former condition."
You have the right to remove your structures, but must return the land to its original state.
Alternatively, under Section 1416, the superficiary may leave the structures and claim compensation from the landowner for their current value. This must be negotiated, as the landowner is not automatically obligated to pay.
Superficies + Leasehold: The Optimal Combination
The most secure arrangement for foreigners involves combining a registered leasehold with a superficies right. This dual structure provides both the right to use the land (lease) and outright ownership of buildings (superficies).
Why Combine Both?
- Land Use Rights: The lease gives you the right to occupy and use the land itself
- Building Ownership: Superficies gives you legal ownership of all structures
- Maximum Protection: Even if one right is challenged, the other provides backup protection
- Financing Options: Banks may be more willing to lend against properly structured arrangements
- Exit Strategy: Easier to sell or transfer your interest to another buyer
Recommended Structure
Execute both a 30-year registered lease and a superficies agreement simultaneously. Ensure both are properly registered at the Land Office. The superficies should specifically reference the lease agreement, and vice versa, to create an integrated legal structure.
Additional Protections to Consider
- Right of First Refusal: Include a clause requiring the landowner to offer you first right to purchase if they ever decide to sell
- Pre-Agreed Renewal Terms: While not binding, document the intended terms for renewal discussions
- Building Insurance: Maintain adequate insurance since you are the legal owner of the structures
- Maintenance Obligations: Clearly define who is responsible for land maintenance vs. building upkeep
Practical Considerations for Foreigners
Financing and Mortgages
One significant advantage of superficies is the ability to mortgage your buildings independently from the land. However, most Thai banks are hesitant to provide mortgages to foreigners, and those that do often require:
- Valid long-term visa (retirement, marriage, or work visa)
- Thai bank account with established history
- Proof of income or substantial deposits
- Life insurance naming the bank as beneficiary
Selling Your Superficies Rights
You can transfer your superficies rights to another person (including another foreigner) without the landowner's consent. This transfer must be registered at the Land Office and involves:
- Transfer registration fee (typically 2% of declared value)
- Possible capital gains tax implications
- Transfer of any associated lease simultaneously
Death and Inheritance
Superficies rights are inheritable. Upon your death, the rights transfer according to your will or Thai succession laws. Non-Thai heirs can inherit superficies rights, though they should seek legal advice regarding their own visa status and long-term position.