1. Introduction
When acquiring land or villas in Thailand — particularly in Phuket — access rights and land burdens are often more significant than buyers initially assume.
Under Thai law, an easement is referred to as a servitude. It is a real right attached to land for the benefit of another land.
This article supports our broader Real Estate Legal Advisory framework and should be read together with:
➡ See Land and building due diligence in Thailand
For structuring considerations involving land control mechanisms:
➡ See Superficies vs usufruct in Thailand
Easements frequently determine whether property is usable, developable, or marketable.
2. Legal Definition Under Thai Law
Section 1387 of the Thai Civil and Commercial Code provides that:
An immovable property may be subjected to a servitude whereby the owner of such property (servient property) is bound for the benefit of another immovable property (dominant property) to:
• Suffer a certain act affecting his property; or
• Refrain from exercising certain ownership rights.
The key point:
An easement benefits another land — not a person.
It attaches to the property itself.
3. Core Characteristics of Easement Rights
3.1 The Right Is Attached to Land
Easement is not personal.
If either the dominant or servient land changes ownership, the servitude continues automatically.
This means:
• Buyers inherit existing burdens
• Sellers cannot extinguish it unilaterally
• It transfers with the land
Failure to verify easements during due diligence can materially affect value.
3.2 It May Cover Various Uses
Common examples include:
• Access road rights
• Drainage rights
• Utility installation rights
• Well usage
• View protection
• Height restrictions
The right may require the servient landowner to:
• Allow passage
• Refrain from obstructing view
• Avoid constructing above a certain height
The burden must relate to benefiting another immovable property.
3.3 It Benefits Land — Not a Person
A key legal distinction:
Allowing a neighbouring land to use a road is an easement.
Allowing a specific person to use a road is not.
This distinction becomes important in disputes.
4. How Easement Rights Arise
Easements may arise in two principal ways.
4.1 By Agreement (Registration Required)
Servitude may be created by contract between the landowners.
Important:
• Must be granted by the landowner
• Must be registered at the Land Department
• Must involve all co-owners
Failure to register renders it unenforceable against third parties.
Consent by a tenant or lessee is insufficient.
4.2 By Law (Prescription)
Easement may arise by long-term use under statutory conditions (generally 10 years).
In such cases:
• Registration is not required
• Court recognition may still be necessary
• Evidence of continuous use is critical
This creates uncertainty risk.
5. Effect of Easement on Property Rights
Easement limits ownership rights of the servient property.
However:
• It creates passive duties (not active duties)
• The dominant owner cannot increase the burden unilaterally
For example:
If access is granted as a dirt road, upgrading to concrete may be permissible if burden is not increased.
But:
Installing utility poles or drainage systems may constitute additional burden.
The dominant owner may not impose additional obligations beyond original scope.
Conversely, the servient owner must not diminish the benefit granted.
Reducing a 3-metre access road to 1 metre would violate the servitude.
6. Maintenance and Cost Allocation
Under Section 1389 CCC:
The dominant property owner bears the cost of maintaining the servitude.
However, if the servient owner benefits from the use, costs must be shared proportionally.
Maintenance disputes are common in:
• Shared driveways
• Gated developments
• Rural access roads
Clarity in drafting is essential.
7. Termination of Easement
Easement does not expire automatically with time.
It may terminate if:
• Dominant and servient land merge under one owner
• Non-use continues for 10 years
• Total destruction of one property occurs
• No benefit to dominant land remains
Unlike leasehold, easement has no automatic expiry term.
It may exist indefinitely.
8. Servitude vs Way of Necessity
A critical distinction:
Easement (Servitude) ≠ Way of Necessity.
Way of necessity arises by law where land has no access to public road.
It is:
• Mandatory
• Subject to compensation
• Narrowly defined
Easement arises by agreement or long use.
Confusing the two may result in incorrect legal claims.
This distinction is particularly important in litigation.
9. Strategic Risk for Foreign Investors
In Phuket and other development-heavy areas, easement disputes often involve:
• Informal access roads
• Unregistered private roads
• Shared infrastructure
• Conflicting development plans
• Resort and villa projects
Before acquisition, investors should verify:
• Registered servitude entries on title
• Cadastral map alignment
• Road classification (public vs private)
• Scope of granted rights
• Maintenance obligations
➡ See Buying a condominium in Phuket
Access uncertainty directly affects:
• Financing
• Development approvals
• Resale value
• Liquidity
10. Conclusion
Easement (servitude) in Thailand is a powerful real right attached to land.
It may:
• Enhance property usability
• Protect access
• Restrict development
• Create long-term burdens
For foreign investors, easement is not a minor technicality. It is a structural property risk factor.
Careful legal verification and proper Land Department registration are essential to protect investment value and avoid future disputes.
