Secured access – the key to your dream home
In the recent past the amendment of property laws including but not limited to the Condominium Act attracted notice of the general public and made buyers aware of a widely disregarded topic: secured access to a property.
Whenever buying property in Thailand, a buyer should verify as to whether secured access is given to his property before entering into a sale and purchase agreement and making payments thereunder. Ideally, access is given through a public road rather than privately owned land which may be sold or transferred to a new owner who may restrict you in entering your property.
As a matter of fact not every single property can be served with secured access by and through a public road. Particuarly in property developments access may be given through a road or land owned by the developer or its affiliates. In such event, the sales documentation should include a provision under which the developer guarantees secured access to your individual property. Additionally, further protection should be given to a property buyer through registration of an easement right, whenever legally possible, securing unrestricted access to its plot.
Such access right also called servitude or Para Jumyom and described under the Thai Civil and Commercial Code (CCC) would need to be registered with the relevant land department and mentioned on the title certificate of the servient land (the land giving access to other land) for the benefit of the land which lacks of access (dominant land).
Important to mention in this context is that the CCC stipulates that the owner of the servient land must refrain from any act which will tend to diminish the utitlity of the servitude or make it less convenient. Further, the CCC states that the owner of the dominant property is entitled, at his own expense, to do all that is necessary to preserve and make use of the servitude. Further, the servitude right always follows the dominant property in the event it is disposed of or made subject to other rights; also it cannot be transferred separately. The advantage of such recorded easement right as opposed to a simple contractual right giving access to a property is obvious when it comes to enforcement or defendance of such right. A contractual right may only be binding onto the parties to such agreement and may not be enforceable against third party landowner in the event the access giving land had been transferred to third party by sale or inheritance. However, a duly recorded servitude right can be defended against any third party landowner preventing the rightholder of the dominant land in passing the access giving servient land.
To summarize, the matter of secured access to a property is often disregarded and therefore bearing high conflict potential in case of a property investment. For the avoidance of future disputes and protection of buyer´s interests verification of secured access should form part of every due diligence to be carried out by your lawyer prior to purchasing property in Thailand to avoid a situation of owning a dream home with restricted access thereto.
This article is written by International Law Office Patong Beach Co., Ltd., a Phuket based law firm. In case of enquiries, please contact Michael Greth, Consulant, by email (michael@ilo-phuket.com) or phone (+66-(0) 76-222 191-5).
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