Servitudes in Thailand

Servitudes in Thailand. In Thailand, servitudes (known in Thai as “สิทธิจำกัดกรรมสิทธิ์” or “ภาระจำยอม”) are a type of real property right that allow one landowner to make certain limited uses of a neighboring parcel of land belonging to another person. Servitudes are recognized under the Thai Civil and Commercial Code (CCC) and are a common legal mechanism for enabling access rights, drainage, and utility passage across adjacent land parcels.

Servitudes do not transfer ownership of land but impose legally binding obligations or burdens on the servient estate (the land over which the right is exercised) for the benefit of the dominant estate (the land that benefits from the right). They are enforceable in rem (against the land itself), meaning that they bind current and future owners of the land, not just the parties to the original agreement.

This article provides a detailed legal overview of servitudes in Thailand, including their definition, permissible uses, modes of creation, registration procedures, termination, and dispute enforcement mechanisms.

1. Legal Framework and Definition of Servitudes

1.1 Governing Law

• Thai Civil and Commercial Code (CCC)
  Book IV: Property
  Sections 1387–1401 directly govern servitudes (pharab chayom).

1.2 Definition

A servitude is a right established over a parcel of land (the servient estate) in favor of another parcel (the dominant estate) to enable a certain benefit or use.

Examples:

• Right of way (private road or access)

• Right to run electricity or water pipes

• Right to discharge rainwater or wastewater

• Right of light and ventilation (in some jurisdictions)

Thai law requires two separate land plots—a servitude cannot be created over one’s own land.

2. Characteristics of Servitudes

Servitudes cannot impose a duty to perform; they can only obligate the servient estate to tolerate or refrain from an action.

3. Valid Types of Servitudes under Thai Law

1. Right of Passage (Easement)
   – Most common form; used where the dominant estate lacks direct access to public road
   – May include vehicle, pedestrian, or utility access

2. Drainage or Water Flow Rights
   – Right to allow water (from rain or irrigation) to flow through the servient land

3. Utility Access
   – For installation and maintenance of pipes, power lines, drainage, etc.

4. Prohibition of Construction
   – May restrict servient estate from building structures that block light or air

Thai courts typically reject servitudes that are vague, overly broad, or violate public order or morality.

4. Creation of Servitudes

There are three primary ways to legally create a servitude in Thailand:

4.1 By Contract or Agreement

• Requires:

  • Written agreement between the dominant and servient estate owners

  • Clear identification of land plots (title deed numbers, boundaries)

  • Specific description of the right granted

4.2 By Prescription (Usage)

• Servitude may be established by continuous and peaceful use for 10 years

• Must be open and without force or secrecy

• This is similar to adverse possession, but limited to easement-type rights

4.3 By Operation of Law

• Arises under Section 1347 CCC:
  If land has no access to public road, the owner has the right to access via neighboring land with reasonable compensation

5. Registration of Servitudes

5.1 Land Office Registration (Highly Recommended)

• Not mandatory for validity, but registration:

  • Strengthens enforceability

  • Ensures binding effect on future landowners

  • Prevents disputes over usage rights

5.2 Procedure

• Submit written servitude agreement to the Land Office where the land is located

• Required documents:

  • Title deeds (Chanote) of both land plots

  • Land sketch or map (showing affected area)

  • ID cards and house registration of both parties

  • Power of attorney (if represented)

• Servitude is recorded on the back of the title deed (Nor Sor 4 Jor)

A servitude cannot be registered on land that does not have a formal title deed, such as Sor Kor 1 or Por Bor Tor 5.

6. Legal Effects and Enforcement

• Once valid, the dominant estate owner has the legal right to exercise the servitude

• The servient estate may not obstruct or interfere with its lawful use

• Violation can be addressed by:

  • Civil injunction

  • Damages claim

  • Court-ordered removal of obstruction

Thai courts have upheld servitudes as real rights and not mere contractual privileges. Injunctive relief is often granted to prevent interference.

7. Modification and Termination of Servitudes

7.1 Termination by Agreement

• Parties may mutually agree to cancel the servitude

• Must be recorded at the Land Office to remove from title deed

7.2 Termination by Non-Use

• If the dominant estate fails to use the servitude for 10 consecutive years, it may lapse under Section 1401 CCC

7.3 Merger of Ownership

• If one person comes to own both the dominant and servient estates, the servitude is automatically extinguished

8. Common Disputes and Litigation Issues

Thai courts have consistently ruled that good faith usage, particularly in cases of historical access, may give rise to implied or prescriptive servitudes, even in the absence of registration.

9. Servitudes vs Other Land Rights

Servitudes are land-attached rights, unlike leases or usufructs, which depend on the holder’s personal capacity.

Conclusion

Servitudes in Thailand provide a powerful and flexible legal tool for managing property access and utility rights, especially in cases involving landlocked plots or infrastructure crossing. Although they may be created informally or by long-term use, registration with the Land Office is strongly advised to prevent future disputes and to ensure legal continuity.

Understanding the distinctions between personal and real rights, the legal mechanics of creation, and the means of enforcement is essential for landowners, developers, and investors who wish to secure or honor servitude rights in accordance with Thai civil law.