Building on Reality: Lease + Superficies as a Legal Strategy in Thailand
In the wake of the 90-year lease myth being debunked, many foreign investors are now asking: what is a legally safe way to structure long-term property use in Thailand? The answer, while not a loophole, is a strategy fully grounded in Thai law, combining a 30-year lease of land with a registered right of superficies for buildings.
Why Superficies Makes Sense
Superficies (สิทธิเหนือพื้นดิน) is a civil law concept that allows a person to legally own buildings on land they do not own. Under Sections 1410-1416 of the Thai Civil and Commercial Code, a right of superficies can be granted for up to 30 years or for the life of the superficiary. When used alongside a lease, it gives legal protection to the foreigner who invests in building property on leased land.
The Structure: Lease + Superficies
- Land Lease: 30 years, registered, renewable upon expiration with a new agreement.
- Superficies: Lifetime or 30 years, giving the lessee the right to own the buildings independently from the land.
- Registration: Both agreements should be registered at the Land Office and clearly state the parties' rights.
- Practical note: Registration of a superficies by foreigners is not common and may require cooperation or discretion at the local Land Office. It is advisable to work with legal professionals who have direct experience and strong local relationships.
What Happens When the Lease Ends?
Upon expiration of the 30-year lease, the right of superficies may still remain in force, especially if granted for life. In such cases, the superficiary continues to legally own and occupy the buildings, even without a lease, and may negotiate a new lease for the land, sell the structure, or remove it. If, however, both the lease and the right of superficies come to an end, whether through expiry or legal termination, the Lessee may lose access to the land and any improvements thereon unless otherwise protected. In such cases, parties may contractually agree that the Lessor will compensate the Lessee for the fair market value of the buildings, as independently appraised. This helps preserve the value of long-term investment and reduces risk for the Lessee.
Optional Compensation Clause
Should renewal of the Lease not be permitted by applicable law at the time of its expiration, or should the Lessor decline to enter into a renewal agreement for any reason, the Lessor agrees to compensate the Lessee for the fair market value of all buildings and improvements constructed by the Lessee on the Land under the Right of Superficies. The valuation shall be determined by an independent professional valuer jointly appointed by both Parties. In the event the Parties cannot agree on the appointment of a valuer, the fair market value shall be determined by a competent Thai court with jurisdiction.
Rent and Legal Consideration
Thai courts may scrutinize transactions that disguise ownership. It is important that the rent reflects the true value of the lease and superficies rights combined. This ensures the transaction is seen as legitimate and not a disguised sale.
Best Practices
- Keep the lease and superficies clearly drafted and registered separately.
- Do not pre-agree or prepay lease renewals, they are void under Thai law.
- Make sure all superficiaries and lessees are listed as named parties on title and contracts.
- Consult a reputable law firm that understands both the Civil Code and land office practice.
Conclusion
While the 90-year lease model was never legally valid (read: The 90‑Year Lease Myth in Thailand (2025), foreign investors still have secure and lawful paths to long-term property use. The lease + superficies structure is not a loophole, it’s a recognition of how rights work under Thai law when properly documented and registered. It is time to move beyond legal myths and build on legal reality.
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