Superficies in Thailand. The right of superficies (สิทธิเหนือพื้นดิน) is one of Thailand’s most useful real-property tools because it separates ownership of structures from ownership of the land beneath them. For foreigners (who normally cannot hold freehold land), for developers who want to protect building investment, and for financiers who need a registrable real right over improvements, superficies provides a civil-law mechanism that is stronger than a pure contract and closer to a property right. The legal basis and mechanics are in Sections 1410–1416 of the Civil & Commercial Code and in routine Land Department practice.
What superficies actually does (plain language)
A superficies gives one person (the superficiary) the right to own buildings, structures or plantations that are on or under land owned by someone else (the landowner). It does not give ownership of the land itself — the landowner keeps that. Once properly created and registered at the Land Office the superficies becomes a real right binding third parties (i.e., it’s enforceable against later purchasers of the land). Registration is the single step that turns a private agreement into a registered property right.
Duration, transferability and extinction — the headline rules
By statute a superficies may be granted:
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For a fixed term (commonly up to 30 years in commercial practice), or
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For the life of the landowner or the life of the superficiary, or
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As otherwise agreed so long as it respects statutory limits.
If the right is granted for a fixed period it is transferable and inheritable; that makes it much closer to a leasehold that can be alienated or mortgaged. When the right expires or is extinguished, the superficiary may remove the buildings (if practical) after restoring the land to its prior condition — or, if the landowner opts to purchase the improvements at market value, the superficiary must accept that sale in most cases. These post-expiry mechanics are specified in Section 1416 of the Code and are a major drafting point.
Superficies vs leasehold and other real rights — practical differences
People often conflate long leases, usufructs and superficies. The practical distinctions that matter:
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Lease (over 3 years) — a lease is contractual and, if registered (for terms >3 years), protects against third parties. But a lease generally confers use only; the lessee does not own the building in the same way.
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Superficies — is a real right (registered on the title) giving ownership of the structures themselves and stronger protections if the land is sold. Superficies is often used together with a registered long lease (same term) to give the superficiary clear ownership of improvements.
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Usufruct — gives the right to use and enjoy the property (more like a life interest); usufruct rights are different in inheritance/mortgage treatment.
For developers and foreign investors who will invest significantly in structures, superficies is usually the most robust way to ensure the value of those improvements survives changes of landowner.
Registration, formal steps and Land Office practice
Key operational points:
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Draft a clear, bilingual (Thai-English) superficies agreement. Include exact plot/plan references, the scope of works, permitted uses, term, renewal mechanics, compensation on expiry, permitted transfers, insurance and maintenance obligations.
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Pay attention to the Land Office formality. The agreement must be executed, witnessed and registered at the provincial Land Office where the title deed is kept; only upon registration does the superficies bind third parties. The Land Office has local practice variations — some offices require an explicit nominal consideration (token value) or evidence of value to calculate registration fees.
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Align the lease and superficies terms. If the superficiary also holds a lease, match term, renewal and transfer clauses so the two instruments don’t pull in different directions when one expires or is transferred.
Financing, mortgage and priority issues
Because a superficies is a real right over immovable property (the structures), it can be used as collateral — lenders regularly take security over a registered superficies or over the buildings themselves. Thai law already recognizes that buildings can be mortgaged separately from the land they stand on, though the mortgagee’s remedies and priority rules must be drafted carefully. Section 719–720 of the Civil & Commercial Code explain that a mortgage over land does not automatically extend to subsequently erected buildings and that separate registration may be necessary — so a lender who finances the building should insist the superficies be registered and that their mortgage/charge be recorded against the superficiary’s interest.
Common drafting pitfalls & how to avoid them
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Vague termination/removal clauses. Draft whether the superficiary must remove structures at expiry or whether the landowner has a right to buy at market value — quantify methods for valuation (independent valuer) and timing. Section 1416 gives statutory default rules, but parties should be explicit.
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Automatic renewals without landowner safeguards. Automatic renewal clauses can be difficult to enforce against successors; better to record agreed renewal mechanics (notice deadlines, price formulas).
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Mismatch between lease and superficies rights. If the lease ends before the superficies term, priority and enforceability issues arise — synchronize terms.
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Missing registration. An unregistered superficies is a private contract only; register it to make it enforceable against third parties.
Tax, fees and practical economics
Registration fees and stamp duties vary with declared value and local Land Office practice. In many commercial transactions parties declare a nominal value for the superficies, but that can trigger tax authorities’ attention — work with tax counsel on VAT, stamp duty and any specific local transfer taxes. Also budget for notary, translation and surveyor costs at registration and for insurance and local property taxes (often borne by the superficiary in practice).
Practical use cases (where you see superficies used)
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Foreigners building a permanent home on Thai-owned land (superficies gives ownership of the house while the landowner holds the land).
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Developers who build hospitality/retail assets where land is in a separate ownership chain (e.g., family-owned land).
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Financing heavy improvements — lenders prefer a registered real right over improvements, not a mere unsecured contractual claim.
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Estate planning — a superficiary can leave the right in a will; a fixed-term, transferable superficies can be inherited by beneficiaries.
Short operational checklist (before you sign)
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Commission a Land Office extract and cadastral survey; confirm title type (chanote etc.).
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Draft superficies + associated lease (if any) with clear term, renewal, removal/compulsory purchase and valuation clauses.
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Register the superficies at the local Land Office (get written proof of entry on the title).
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If raising debt, ensure mortgage/charge registration over the superficiary’s interest or over the buildings themselves.
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Plan taxes, stamp duty and Land Office fees with your tax counsel before declaring value.
Bottom line
Superficies is a pragmatic, statutory tool that gives long-term protection to investments in buildings on third-party land. When properly documented, registered and aligned with financing and lease arrangements, it offers foreigners and developers a near-property-level certainty without breaking Thailand’s land-ownership rules. The key to success is precise drafting, Land Office registration, and coordinating mortgage and tax mechanics before you build or lend. If you’d like, I can draft a short superficies clause checklist you can hand to counsel (term/renewal/buy-out/valuation/registration/mortgage items) — tell me and I’ll produce it now.
