How Easement or Servitude in Thai Law works?
Easement Law in Thailand is the Servitude Rights. It is often involved when buying Land in Phuket. The Understanding of this right can be useful when buying land. Whether leasehold or freehold. This article is going to explain ‘Servitude’ under Thai law. In case you are looking for a clear idea about buying land or a condo in Phuket, we highly recommend reading the article 5 steps to understand when buying real estate in Phuket.
What does Servitude Mean in Thai law?
Firstly, in order to understand the meaning of the Servitude in Thai law. Comparison with other countries’ laws may help. Servitude’ in Thai law means the same as ‘Praedial Servitude’ in Romans law. It means the same with ‘Easement Law’ in English Land law and ‘Servitude’ in French Law. It is a right attached to immovable property (land and/or house) for the benefit of another immovable property. In Romans law called ‘‘jus in re aliena’. It does not include a right above other people ‘personal real rights’. Thirdly, servitude in Thai law does not include ‘usus fructus’ and ‘habitatio’. (Property Law: MRV Seree Pramote B.E. 2549).
Civil and Commercial Code of Thailand (CCC), Section 1387 stipulates that ‘An immovable property may be subjected to a servitude. By virtue of which 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 to refrain from exercising certain rights inherent in his ownership.
There are 3 Main Characteristics of the Easements Law or the Servitudes Law under Thai Law
1- The Servitude right attached with the property.
It is not a right attached to a person. An immovable property may be subject to a servitude by virtue of which the owner of such property is bound. Therefore changing of ownership of property doesn’t affect the servitude rights. It means Servitude right is transferrable and transfer along with the both Servient Property and Dominant property.
2- Servitude right is not specified only for specific purposes.
Whatever rights benefit another immovable property. In example, allow the Dominant Property to use the Servient Property as an access road, well, drain, utilities. It includes not building a contraction to a view or wind. etc.
3- Servitude right is for the benefit of another ‘immovable property’.
Not for the benefit of another person. Some examples for the benefit of the other immovable property mentioned in clause 2 above. Here is one interesting example for understanding: allowing other people to make a well for use of water on another immovable property is a servitude, allowing other people to use water in the land is not a servitude (Supreme Judgement Number (SJN) 11-13/2503).
How Servitude Arises?
First Significantly, the servitude rights may arise by both a consent or by the law. In comparison with the way of necessity which arises only by the law.
The Servitude may arise by consent. This kind of consent can terminate at any time. (the Consent is not a Contract). Servitude may arise by the Law after using it more than 10 years (S 1393, 1401 and 1382 of CCC). The Servitude arising by consent must be registered at the land department (S 1299 of CCC). If not, the right of servitude is not in full effect (SJN 1084/2507). This is a big difference with the servitude which arises by law which is in full effect without registration (SJN 237/2508).
Important note that the consent of Servitude or Contract of Servitude shall be given by the Servient Property. It means the landlord only. The other who is not the landlord like a tenant or a lessee can’t give this consent. In case the land belongs to more than one owner the consent must be made by all co-owner.
What is the Effect of Servitude?
It is the inherent ownership of the Servient Property which limits his lawful rights. Some certain acts or to refrain from exercising some rights.
On one hand, the right of servitude is to refrain from exercising rights (passive duty, not active duty). Therefore, the owner of the Dominant Property is not allowed to make any change, either on the Servient Property or on the Dominant Property, which increases the burden of the Servient Property. And changing of the requirements of the owner of the Dominant Property do not entitle him to impose an additional burden on the Servient Property (S1388 and 1389 of CCC).
Examples: Giving consent for an access road. Changing the road from dirt road to concrete road does not increase the burden of the Servient Property (SJN 1730/2503). But, can’t make electric poles and laying water pipes (SJN 378/2511).
On another hand, the owner of the Servient Property must refrain from any act which will tend to diminish the utility of the servitude or to make it less convenient (S 1390 of CCC). Giving a consent for the 3 meter wide access road can’t change to 1 meter wide (SJN 237/2508).
Duty of Maintenance and Preservation.
The owner of the Dominant Property has to pay necessary to preserve, make use of servitude, maintenance and repair. However, if the owner of the Servient Property benefits by the use. He must bear a share of the expenses in proportion to the benefit which he receives (S1389 of CCC).
Ending of Servitude
Servitude has no time limit, it exists as long as the right is not lost, possibly more than 100 years (SJN 300/2465, 1083/2494 and 1426/2514).
The Servitude may end by its condition. For example, Servient Property and Dominant Properties are vested in one and the same owner, total destruction of the Servient or Dominant Property, non usage for 10 years or non benefit to the dominant property, in these cases, the servitude rights end. (S1397 to 1400 of CCC)
Dispute Regarding Easement Law or Servitude Law
Disputes may arise regarding the Servitude law or Easement law. The type of legal action may be the existence of the Servitude. The scope or use of the servitude. The Requirement of use of servitude. It includes damages or remedies.
Important note. In case of the servitude arises for the purpose of access road. Servitude is not a Way of Necessity. When bringing the dispute to the court, it should clearly state the characteristics of the dispute. With this in mind rights and duties between Servitude and Way of Necessity are different.
In conclusion, we hope this article gives you some ideas when dealing with this kind of right. If you need help from a Law Firm who offers Full Legal Services. Or if there is any question, feel free to contact us.
Akenarin Thongplod, Thai Lawyer and Frederic Retif French Lawyer