Easement in Thailand is called servitude rights. It is often involved when buying land, whether in Phuket or somewhere else in Thailand. Understanding servitude is useful when buying land. Whether leasehold or freehold land This article gives essential knowledge about “servitude” under Thai law.
Firstly, in order to understand the meaning of servitude in Thai law, a comparison with other countries laws may help. Servitude’ in Thai law means the same as “praedial servitude” in Roman law. It means the same as ‘Easement Law’ in English Land law and “servitude” in French law. It is a right attached to immovable property (land and/or a house) for the benefit of another immovable property. In Roman law, it is called ‘‘jus in re alien. It does not include a right above other people’s ‘personal real rights’. Thirdly, servitude in Thai law does not include ‘uses fructus’ and ‘habitation” (Property Law: MRV Seree Pramote B.E. 2549).
The Civil and Commercial Code of Thailand (CCC), Section 1387, stipulates that “an immovable property may be subjected to a servitude.” By virtue of this, the owner of such property (servant 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.
3 Main Characteristics of the Easements or the Servitudes under Thai Law
1- The Servitude right attached to the property.
It is not a right attached to a person. An immovable property may be subject to servitude by virtue of which the owner of such property is bound. Therefore, changing ownership of property doesn’t affect servitude rights. It means servitude rights are transferrable and transfer along with both servant property and dominant property.
2- Servitude right is not specified only for specific purposes.
Whatever rights benefit another immovable property For example, allow the dominant property to use the servient property as an access road, well, drain, and utility. 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 are mentioned in clause 2 above Here is one interesting example for understanding: allowing other people to make a well for the use of water on another immovable property is a servitude; allowing other people to use water on 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 consents and 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 be terminated at any time. (The consent is not a contract.) Servitude may arise under the law after using it for more than 10 years (S 1393, 1401, and 1382 of the CCC). The servitude arising by consent must be registered at the land department (S 1299 of the CCC). If not, the right of servitude is not in full effect (SJN 1084/2507). This is a big difference from the servitude that arises by law and is in full effect without registration (SJN 237/2508).
Important note: the consent of servitude or contract of servitude shall be given by the servant property. It means the landlord only. The other person, who is not the landlord, like a tenant or a lessee, can’t give this consent. In cases where the land belongs to more than one owner, consent must be given by all co-owners.
What is the Effect of Servitude?
It is the inherent ownership of the servant’s property that limits his lawful rights. certain acts or to refrain from exercising some rights.
On the 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 changes, either on the servient property or on the dominant property, which increases the burden on the servient property. And changing the requirements of the owner of the dominant property does not entitle him to impose an additional burden on the servient property (S1388 and 1389 of the CCC).
Example: giving consent for an access road Changing the road from a dirt road to a concrete road does not increase the burden on the servant’s property (SJN 1730/2503). but can’t make electric poles or lay water pipes (SJN 378/2511).
On the other hand, the owner of the servitude property must refrain from any act that will tend to diminish the utility of the servitude or make it less convenient (S 1390 of the CCC). Giving consent for the 3-metre-wide access road can’t change it to 1-metre-wide (SJN 237/2508).
Duty of Maintenance and Preservation.
The owner of the dominant property has to pay for the necessary preservation, servitude, maintenance, and repair. However, if the owner of the servient property benefits from the use, he must bear a share of the expenses in proportion to the benefit that he receives (S1389 of the CCC).
Ending of Servitude
Servitude has no time limit; it exists as long as the right is not lost, possibly for more than 100 years (SJN 300/2465, 1083/2494, and 1426/2514).
The servitude may end because of its condition. For example, if servient property and dominant property are vested in one and the same owner and there is the total destruction of the servant or dominant property, non-usage for 10 years, or no benefit to the dominant property, the servitude rights end. (S1397–1400 of the CCC)
Dispute Regarding Easement Law or Servitude Law
Disputes may arise regarding the servitude or easement laws. The type of legal action may depend on the existence of the servitude. The scope or use of the servitude The requirement of using servitude It includes damages or remedies.
Important note. In case of the servitude arises for the purpose of accessing the road. Servitude is not a Way of Necessity. When bringing the dispute to court, it should clearly state the characteristics of the dispute. With this in mind, the rights and duties between servitude and necessity are different.
In conclusion, we hope this article gives you some ideas for dealing with this kind of situation. If you are in need of a real estate lawyer or for more information, feel free to contact us at any time.