Superficies in Thailand. In Thailand, Superficies is a real right (right in rem) governed by the Thai Civil and Commercial Code (CCC) that allows a person to own a building, structure, or plantation on land owned by another person. This legal construct offers an alternative path for foreigners and Thai investors who wish to build or retain structures without owning the land itself.
Superficies is particularly relevant in Thailand, where land ownership by foreigners is prohibited, and long-term control structures must rely on rights such as leases, usufructs, and superficies. While lesser known than leases, superficies provides certain advantages, particularly regarding construction rights and asset security.
I. Legal Foundation
Superficies is governed by Sections 1410–1416 of the Civil and Commercial Code of Thailand.
“The owner of a piece of land may grant to another person the right to own, upon or under the land, buildings, structures or plantations.”
This is a non-possessory real right that separates the ownership of land from the structure built upon it. The person who holds the right is called the superficiary, while the landowner retains ownership of the underlying land.
II. Key Characteristics of Superficies
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Right to own a building separate from the land: The superficiary legally owns the structure, even if the land belongs to someone else.
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Transferable and Inheritable: The right can be transferred or inherited (subject to the original contract), offering long-term security.
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Assignable: May be sold, gifted, mortgaged, or passed to heirs, depending on agreement terms.
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Exclusive use for structures or plantations: Cannot be used for general land occupation unless paired with a lease or servitude.
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Independent of Lease: Can coexist with a lease but is fundamentally different. A superficies does not expire with the land lease.
III. Term and Duration
A superficies can be granted for:
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A specific term, not exceeding 30 years;
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For the lifetime of the superficiary;
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Or for the lifetime of the landowner (less common).
It may be renewed or extended by agreement, and the superficiary may request an extension of registration at the Land Office.
IV. Creation and Registration
A. Contractual Agreement
Superficies must be granted by the landowner, in writing, specifying:
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Duration (term or life)
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Purpose (e.g., residential building, warehouse)
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Rights and obligations (e.g., insurance, maintenance, tax liability)
If the superficiary is to build a structure on the land, the landowner must provide written consent to avoid future disputes or demolition under building laws.
B. Land Office Registration
Registration is mandatory for superficies to be enforceable against third parties. It is carried out at the Land Department Office where the land is located.
Documents required:
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Land title deed (Chanote or Nor Sor 3 Gor)
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ID and power of attorney (if applicable)
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Contract of superficies
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Landowner’s written consent
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Government fees: 1% of the appraised value (subject to minimums)
If unregistered, the right is valid only between the parties, not against third parties or successors.
V. Use Cases and Strategic Applications
A. For Foreign Investors
Foreign nationals cannot own land in Thailand but can:
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Own buildings and improvements
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Use superficies to build villas, factories, or warehouses on Thai land
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Combine with a lease agreement for exclusive land use (e.g., 30-year lease + superficies)
This structure enables asset security while maintaining legal compliance.
B. For Thai Companies
Thai companies may use superficies to:
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Construct infrastructure without owning land outright (e.g., public-private projects)
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Maintain ownership of facilities built on leased state or private land
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Facilitate joint ventures without ceding land title
It also helps when the landowner is unwilling to sell but agrees to a long-term right to build.
C. Inheritance Planning
Because superficies can be made inheritable, it enables structured succession for family properties or foreign-owned villas on leased land, provided the contract allows for heir substitution.
VI. Superficies vs. Leasehold vs. Usufruct
| Feature | Superficies | Leasehold | Usufruct |
|---|---|---|---|
| Ownership of Building | ✅ Yes | ❌ No | ❌ No |
| Control of Land | ❌ No (unless combined) | ✅ Yes | ✅ Yes |
| Transferability | ✅ Yes (if registered) | ✅ Yes (if registered) | ❌ Generally not transferable |
| Inheritance | ✅ Yes (if life term or clause permits) | ❌ Not unless corporate structures used | ✅ Yes (for life term) |
| Duration | Up to 30 years or for life | Max 30 years per term | For life or up to 30 years |
| Registration | ✅ Required at Land Office | ✅ Required for >3 years | ✅ Required |
| Used By Foreigners | ✅ Yes | ✅ Yes | ✅ Yes (limited utility) |
Superficies is ideal when structure ownership is the priority, whereas leases are better for overall control of land use.
VII. Limitations and Legal Risks
A. Dependent on Landowner Consent
The right cannot exist unless the landowner consents and registers it. This requires careful due diligence on land title and any encumbrances (mortgages, restrictions).
B. Not a Possessory Right
Superficies does not entitle the superficiary to occupy or use the land for other purposes unless paired with another right (e.g., lease or servitude). Misuse can lead to disputes or cancellation.
C. Tax Liability
The building owner (superficiary) may be liable for:
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Land and Building Tax Act payments (especially if income-producing)
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Withholding taxes upon transfer or inheritance (depending on structure)
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Municipal or provincial approvals for construction
Proper planning with a tax advisor is essential, especially for foreigners or corporate structures.
VIII. Termination and Remedies
Superficies ends upon:
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Expiry of agreed term
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Death of the superficiary (if a life grant)
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Cancellation by mutual agreement (must be registered)
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Court order due to breach of terms
After expiration, ownership of the building does not automatically revert to the landowner unless:
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Agreed in the contract, or
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The superficiary fails to remove the structure (leading to compensation or forfeiture)
The superficiary may demand compensation or removal rights depending on the agreed terms.
IX. Practical Drafting Considerations
A well-drafted superficies contract should specify:
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Whether the right is exclusive or limited
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Construction obligations and approvals
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Access rights (e.g., easement or servitude)
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Tax burden assignment
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Renewal or extension mechanisms
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Conditions for removal or transfer
Legal translation and bilingual documentation are critical, especially where foreigners are involved, and should align with Thai civil law formalities.
X. Conclusion
Superficies in Thailand provides a flexible and secure legal tool for separating land ownership from structural ownership. It is especially advantageous for foreign investors, Thai-foreign joint ventures, and landowners seeking development without title transfer.
While not a substitute for full ownership, superficies grants meaningful property rights and asset security—particularly when registered properly and combined with complementary rights like leasehold or servitude. To leverage this structure effectively, legal precision, land due diligence, and expert drafting are essential.