Real Estate

However, scores of people have yet to fully understand what the rule changes are, and what the changes mean to them. (See story here.)

The first factor to keep in mind is that the changes so far are only a temporary reduction of Thai real estate transfer and mortgage registration fees, effective October 29, 2015 to April 28, 2016.

Here, the rest of this article aims to explain in simple terms what the changes are:

The relevant details of the three regulations providing for the fee reductions are as follows:

Part 1. UNREGULATED LAND AND BUILDINGS

Law: Ministry of Interior Regulation Regarding Registration Fee under the Land Code for Housing (published in the Royal Gazette on October 28, 2015)

To boost the sale and purchase of immovable property in Thailand, the Cabinet on October 13, 2015 resolved to set the registration fee under the Land Code for the transfer and mortgage of housing property as follows:

Clause 1: Registration fee for the transfer of residential: detached house; twin house; row house, and commercial building, and any of these buildings with land where the building is located and such land is NOT under Land Allocation Act or under any development by the government, and mortgage of the said transferred property, would be at the rate of 0.01%.

Clause 2: This regulation is effective from October 29, 2015 to April 28, 2016.

Note: 0.01% applies to:

– Transfer of any of these buildings;

– Transfer of any of these buildings + land that is not under Land Allocation Act or government’s land development;

– Mortgage of any of the above (if for example Mr A receives a house by gift or inheritance then he mortgages said house, he will not get this reduced rate);

– Not applicable to raw land (that is not in the licensed development);

– Not applicable to land that is not the location of the building even though such extra land is transferred (and mortgaged) at the same time as the house + land.

Part 2. LAND AND BUILDINGS WITHIN A LICENSED DEVELOPMENT

Law: Ministry of Interior Regulation Regarding Registration Fee under the Land Code for Immovable Property Licensed under the Land Allocation Act (published in the Royal Gazette on October 28, 2015)

To boost the sale and purchase of immovable property in Thailand, the Cabinet on October 13, 2015 resolved to set the registration fee under the Land Code for the transfer and mortgage of immovable property that is in licensed development under the Land Allocation Act as follows:

Clause 1: Registration fee for the transfer of land, land and residential building: detached house; twin house; row house, and commercial building, under Land Allocation Act or under any development by the government, and mortgage of the said transferred property, would be at the rate of 0.01%.

Clause 2: This regulation is effective from October 29, 2015 to April 28, 2016.

Note: 0.01% applies to:

– Transfer of land only, or land and any of these buildings in the licensed development project or the government’s development project;

– Mortgage of any of the above (if for example Mr A receives a developed raw land by gift or inheritance then he mortgages the land, he will not get this reduced rate);

– both first hand and resale.

Part 3. CONDOMINIUMS

Law: Ministry of Interior Regulation Regarding Registration Fee under the Condominium Act (published in the Royal Gazette on October 28, 2015)

To boost the sale and purchase of immovable property in Thailand, the Cabinet on October 13, 2015 resolved to set the registration fee under the Land Code for the transfer and mortgage of condominium unit(s) under the Condominium Act as follows:

Clause 1: Registration fee for the transfer of the following condominium unit under the Condominium Act and mortgage of such transferred unit, would be at the rate of 0.01%:

(1) Transfer, and mortgage of all units at once in any licensed condominium under the Condominium Act;

(2) Transfer, and mortgage of any condominium unit in any licensed condominium under the Condominium Act.

Clause 2: This regulation is effective from October 29, 2015 to April 28, 2016.

Note: 0.01% applies to:

– Transfer of the whole condominium building or individual unit;

– Mortgage of the above (if for example Mr A receives a condominium unit by gift or inheritance then he mortgages the condo, he will not get this reduced rate);

– both first hand and resale.

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The government appears to agree. Despite the differences between Thailand’s two main political parties, both of them have presented proposals for large scale and comprehensive infrastructure projects. Both parties continue to agree that Thailand needs to invest significant amounts to modernize and improve its infrastructure.

In such circumstances it is not uncommon for a government to encourage private sector investment. Such private participation may have several benefits for the government. These may include technical or managerial expertise not available domestically, a larger and more competitive bidding pool for the project and, depending on the type of private participation, project financing.

Where the potential private investor is foreign, a significant consideration will be an assessment of the protections afforded to the investment. Internationally, this is usually provided by substantive rights and enforcement provisions in a public-private contract (“PPC”) between the host State and the foreign private party or under any relevant investment treaty (“IT”) or both.

The following will briefly explain what types of rights and enforcement provisions are commonly available to foreign investors under these two options and conclude with a brief comment on the current investor-State situation in Thailand.

SUBSTANTIVE RIGHTS

The rights afforded to an investor under a PPC are for the contracting parties to determine and may vary with regard to the type of investment. However, a common concern for foreign investors is that the State may enact or change its law relevant to the investment such that it would diminish the investment’s value. Thus, an example of a substantive right commonly included in the PPC for the investor is a provision, which applies the law of the host State – at the time of the investment – to the investment throughout its duration. This is commonly known as a “freezing clause”.

Whereas the investor will need to convince the host State to include investment protection provisions contractually, ITs provide such protections to the investor without such requirement.

ITs take three common but different forms:

1. Bilateral agreements between two countries (BITs) and to which Thailand is currently a party of at least 34 such agreements;
2. Multilateral investment agreements between more than two countries (MITs) and of which the 2009 ASEAN Comprehensive Investment Agreement (ACIA), to which Thailand is also party, is a good example; and
3. Free-trade agreement (FTA), which although not dealing only with investment protection issues, commonly include such provisions. The 2009 ASEAN-Australia-New Zealand Free-Trade Treaty (AANZFTT) is a good example of an FTA and to which Thailand is a party.

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