Servitudes in Thailand

Servitudes in Thailand. In Thailand, real estate development and land use are often subject to a complex interplay of rights between neighboring landowners. Among the tools used to formalize such rights is the servitude, a legal mechanism under civil law that permits one landowner to exercise certain rights over a neighboring property.

Servitudes (known in Thai as “easements” or “สิทธิจำกัดอิสระกรรมสิทธิ์ในอสังหาริมทรัพย์”) are governed by the Civil and Commercial Code (CCC) and represent a durable legal right that can significantly affect the use and value of property. This article provides a detailed examination of servitudes in Thailand: their types, legal formation, registration, enforceability, and termination.

Legal Basis and Definition

Servitudes are regulated under Sections 1387 to 1401 of the Thai Civil and Commercial Code.

Section 1387 defines a servitude as:

“A servitude is a burden imposed upon an immovable property for the benefit of another immovable property belonging to a different owner.”

This means that one parcel of land (the servient estate) is encumbered for the benefit of another parcel (the dominant estate), without requiring possession or ownership transfer.

Types of Servitudes

In Thailand, servitudes typically arise in the following forms:

1. Right of Way (Access Servitude)

Allows the dominant estate to pass over the servient estate to access a public road. Common where land is landlocked or lacks direct access.

2. Drainage and Irrigation

Permits water from the dominant estate to pass through the servient estate, such as through a ditch or underground piping.

3. Support and Structural Rights

Allows the dominant estate to use a wall or support beam situated on the servient estate, often in townhouse or semi-detached structures.

4. Utility Servitudes

Grants rights to lay electric, water, or communication lines across the servient estate.

These servitudes can be positive (granting a right to do something) or negative (imposing a restriction on the servient estate owner).

Essential Characteristics

• Permanence: Once validly created, a servitude attaches to the land and continues through subsequent ownership transfers.

• Non-possessory: The dominant estate owner gains rights over the land, not possession of the land.

• Inseparability: The servitude cannot be transferred independently; it is always attached to the land.

• No Compensation Unless Agreed: The servient estate owner does not receive compensation unless agreed in the contract.

Establishing a Servitude

A servitude can be created in two primary ways:

1. By Agreement and Registration

The most common and secure method.

Steps:

1. Written Agreement: Executed by both landowners (dominant and servient estates), specifying:

   • Nature and extent of the right

   • Duration (if applicable)

   • Location and use restrictions

2. Registration: Filed with the Land Department (Department of Lands).

   • Both landowners must appear at the Land Office.

   • The servitude is noted in the title deeds (Chanote) of both properties.

Registration fees typically include:

• 1% of the declared servitude value

• Small administrative costs and stamp duty

Without registration, a servitude is not enforceable against third parties.

2. By Necessity or Operation of Law

This arises automatically under specific legal situations:

• Section 1349 CCC allows for an implied right of way when a parcel is landlocked and has no access to a public road. In such cases:

  • The servient estate must allow reasonable passage.

  • Compensation may be ordered by the court.

  • The width and location of the right of way must be the least burdensome to the servient estate.

This form does not require mutual agreement but may require a court order.

Rights and Obligations of Parties

Dominant Estate Owner:

• May exercise the servitude in accordance with the registered or agreed purpose.

• Must use the servitude in a reasonable and non-abusive manner.

• Cannot expand the use beyond what was registered.

Servient Estate Owner:

• Must allow use of the servitude as defined.

• May not build structures that obstruct the servitude.

• Retains ownership and can use the land, provided it does not interfere with the servitude.

Servitude vs. Lease vs. Usufruct

Termination of Servitude

Servitudes may terminate in the following ways:

1. Mutual Agreement

Both parties may agree in writing to cancel the servitude and file a termination at the Land Office.

2. Merger of Ownership

If one party comes to own both dominant and servient estates, the servitude terminates automatically.

3. Expiration

If the servitude was created for a fixed term, it expires automatically upon reaching the end of that term.

4. Abandonment or Non-use

If the dominant estate fails to use the servitude for 10 consecutive years, and there is no intention to preserve it, it may lapse under Section 1401 CCC.

Disputes and Legal Remedies

Common servitude disputes involve:

• Obstruction or interference by the servient estate

• Unauthorized expansion of use by the dominant estate

• Compensation claims for landlocked parcels

Disputes may be brought before the Civil Court, which can:

• Order removal of obstructions

• Grant or revoke servitudes

• Award damages for breach of registered rights

Practical Considerations in Real Estate Transactions

• Title Search: Buyers should conduct a land title search to check for existing servitudes or rights-of-way that may impact development.

• Land Development: Servitudes may affect construction zoning, access roads, or boundary design.

• Subdivision: Developers must carefully map servitudes when subdividing land to ensure each plot has legal access.

• Foreign Buyers: Foreigners may hold rights related to servitudes when purchasing condominiums or owning structures via superficies, but cannot directly own land encumbered by or benefiting from a servitude unless through a Thai company.

Conclusion

Servitudes in Thailand are an essential legal instrument that balances land use rights between neighboring properties. While seemingly technical, servitudes often form the foundation for legal access, utility placement, and structural reliance in both urban and rural settings. Proper documentation, registration, and legal advice are crucial in creating enforceable servitudes that protect long-term property rights and minimize disputes.