What is deprivation of rights?
The concept of "denial of rights" is a significant legal issue. If land or real estate is subject to denial of rights, the subsequent owner will lose certain rights and may not be able to fully utilize the land or property, or may even be unable to use it at all.
Therefore, it's crucial to understand what denial of rights is, its characteristics, and what precautions should be taken.
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What is Denial of Rights?
Denial of rights refers to a condition where the owner's rights or privileges over the land they possess are reduced. This can occur due to government regulations or because the owner registers a denial of rights at the land office to transfer ownership to another party.
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What are the Characteristics of Denial of Rights?
Now that we understand what denial of rights is, let's look at its seven characteristics:
1. Prohibition of Transfer
This can occur when a land title deed (N.S.3) is issued without the land being utilized, or when a prior land ownership certificate (S.K.1) exists. The government may impose a 10-year transfer prohibition, also known as... 1. “Red-backed title deed”: In this case, if the remaining prohibition period is long, such as 8 years, it will be problematic as the property cannot be sold until the period expires.
2. Lease Agreement:
Thai law stipulates that lease agreements exceeding 3 years must be registered at the land office. Therefore, it is necessary to check how many years are remaining on the lease and the rental rate.
This is only possible if the lease is for a term less than 3 years and is a private agreement, or if it is a lease of only a building, which is registered at the district office. For these two types of leases, the transaction will not appear in the title deed's registry; a personal on-site survey is required.
3. Usufruct Right:
This is a right granting the holder the right to possess, use, or benefit from the property for a period not exceeding 30 years or for the lifetime of the holder. Once this right is registered, a lease agreement must be made with the usufruct holder, not the owner who holds the title deed.
4. Right of Residence:
This is a right granting the occupant the right to reside in a building without paying rent, which may be for a period not exceeding 30 years or for the lifetime of the holder.
5. Surface Right:
5. Surface Rights: These are the rights to own buildings, structures, or crops on or under the land. The term of service may be limited to 30 years, or the lifetime of the landowner, or the lifetime of the right holder. Upon expiration of the term, the right holder has the right to remove any structures.
6. Encumbrances:
A named beneficiary has the right to receive periodic payments for the property, or to use or enjoy the benefits of the property as specified. If no time limit is specified, it is presumed to last for the lifetime of the beneficiary, or if the time limit is not more than 30 years.
7. Easements:
Land may be subject to an easement that requires the owner to accept certain actions affecting their property or to refrain from exercising certain rights inherent in the property ownership. A common type of easement is a right-of-way easement, allowing another land title to use it as a passageway.
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What to watch out for when considering ineligibility for rights?
A point of particular caution regarding ineligibility for rights is easements, which are broad and all-encompassing, especially if no time limit is specified. This means that the easement will remain attached to the land permanently.
Therefore, whenever purchasing land or any real estate, you must always go to the land office to check whether there are any existing easements on that plot of land. If there are, you need to examine their nature and duration.
In addition, you can check the title documents, such as the land deed or Nor Sor 3, by reviewing the records. This will help you determine any existing easements on the land and also provide information about the history of that plot of land, as every transaction related to that land is recorded in the records without fail.
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Liability for Infringement of Rights
The Civil and Commercial Code also stipulates that the seller is liable for any infringement of rights over the sold property. This is because, in addition to the buyer's intention to acquire ownership, they also wish to peacefully possess the purchased property without interference from others.
Article 475 states that if any person interferes with the buyer's right to peacefully possess the property, either because that person has a right over the property at the time of the sale, or because of the seller's fault, the seller shall be liable for the result.
Infringement of rights can occur in two cases:
1. A third party has a right over the property before or at the time of the sales contract.
2. The seller is liable for any infringement of rights caused by the seller's fault.
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Characteristics of Infringement of Rights that Obtain Seller Liability:
1. The right of the other party contesting or interfering with the property must be a legal right and superior to the seller's right.
2. The right of the other party contesting or interfering must have existed at the time of the sale, not after the sales contract was made. 1. If the right arose after the sale, the seller is not liable.
3. Even if the right of another person that disputes or interferes with the sale arises after the sale contract, the seller may still be liable if the infringement of that right is due to the seller's fault.
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Section 476 If the buyer was aware of the right of the person interfering at the time of the sale, the seller is not liable.
Section 477 When such infringement of rights results in a lawsuit between the buyer and a third party, the buyer may request the court to summon the seller as a co-defendant or co-plaintiff with the buyer in that case, so that the court can adjudicate the dispute between all parties in a single case.
Section 478 If the seller deems it appropriate, he may intervene in the case to deny the third party's claim.
Section 479 If the property sold is lost to the buyer in whole or in part due to an infringement of a right, or if the property is subject to any right that reduces its value, suitability for use, convenience of use, or the potential benefits, and which the buyer was unaware of at the time of the sale, the seller is not liable. The seller is not liable.
Section 480: If the court has declared that the immovable property is subject to an easement by law, the seller is not liable, unless the seller has guaranteed in the contract that the property is free from any easements whatsoever, or free from that particular easement.
Section 481: If the seller was not a party to the original lawsuit, or if the buyer has reached a compromise with a third party, or agreed to the third party's demands, no lawsuit for liability for dispossession of rights may be filed after three months from the date the judgment in the original lawsuit became final, or from the date of the compromise, or the date of agreement to the third party's demands.
Section 482: The seller is not liable for dispossession of rights in the following cases:
1. If no lawsuit was filed, and the seller proves that the buyer's rights were lost due to the buyer's own fault; or
2. If the buyer did not bring the seller into the lawsuit, and the seller proves that if the seller had been brought in, the buyer would have won the case; or
3. If the seller was brought into the lawsuit, but the court dismissed the buyer's claim due to the buyer's own fault.
However, regardless of the circumstances, If a seller is summoned to court to participate in a case and refuses to do so as a co-defendant or co-plaintiff with the buyer, the seller will be held liable.
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