Superficies is one of the strategies used by expats in Thailand since owning land in Thailand is not possible with millions in investment and permission from the Minister of the Interior for owning 1 Rai of land. Superficies allows you to build on land which you do not own. Many times foreigners will place the land in the name of the wife or child and then build a house on it in their own name after registering a superficies over the property.
There are 3 types of superficies. The first is for a period of 30 years, the second type is for the lifetime of the land owner and the third option is for the life of the superficiary itself. Note that the right of superficies which has been registered for a specified time is a transferable and inheritable interest. For further reading on superficies in Thailand you need to look at the Thai Civil and Commercial Code Sections 1410 to 1416.
Note that most superficies in Thailand comes with a lease agreement over the land. So there are two agreements when need to be drafted. The superficies itself as well as the lease agreement over the land. Note that lease agreements over 3 years needs to be registered with the Land Department. This is normally done together at the Land Department. The cost of registration is 1,1 % (this includes a 0,1% stamp duty) of the value of the superficies. If there is no consideration then the government fees are less than 100 Baht.
Superficies you mainly find in Southern Thailand where there are plantations for sale and Phuket is not well known for the registration of superficies as the demand for land is very high and limited. If there is not any time period stipulated then the superficies can be cancelled with reasonable notice to the other. If rent is being paid in this case then Section 1413 stipulates that 1 years notice should be given or 1 year paid. Note also that if the superficies rental has not been paid for a period of 2 years then the superficies may be terminated.
Should the building be destroyed this does not affect the superficies. You can build the property again without the need to register a new one. The following is important. When the superficies comes to its end you can destroy the buildings on the property and restore the land to its original state or the land owner can buy the buildings from you with a reasonable offer.
Speak to an attorney about superficies and other property options in Thailand if you are looking at buying property in Phuket and buying land for your wife in Southern Thailand or in Issaan. Note that if you wish to place property into your wife’s name and looking for property protection in the event of a divorce then also consider a usufruct over the property or a prenuptial agreement before you get married. Consider all the options by speaking to a property lawyer.