Servitudes in Thailand
What are Servitudes?
Servitude is practically a registered "right of way" that is given to a dominant property that benefits from the servient property, who is burdened by this right of way. A right of servitude usually involves two or more separate properties/plots of land, one of which is burdened and the other benefited by the servitude. The burdened parcel is called the servient property and the benefited land parcel the dominant property.
In common law terms, servitude is usually described as an "easement". For example, if property A has a house located adjacent to property B, however, in order for property B tenants to pass through property A's walkway, a servitude will be needed to grant the right of way.
The right of servitude basically secures access to the public road. A registered right of servitude is an important right in case a plot of land is surrounded by other plots of land and has no direct access to a public road. The right of servitude registered over adjoining plots guarantees uninterrupted access to the dominant property.
Servitudes in Thailand Law
Servitudes in Thailand are governed by the Thai Civil Law and Commercial Code sections 1387 to 1401. Section 1387 of the Thai Civil and Commercial Code states that, an immovable property may be subjected to a servitude by virtue of which the owner of such property is bound, for the benefit of another, to suffer certain acts affecting his property or to refrain from exercising certain rights inherent in his ownership. However, the owner of the dominant property is not entitled to make any change, either on the servient property or on the dominant property, which increases the burden of the servient property.
Servitudes can put several kinds of burdens or restrictions on a neighboring property, such as usage of neighboring water well, or defining restrictions on private structures. Servitude can decrease the value of the burdened property and increase the value of the benefiting property
How are Servitudes Extinguished?
Servitudes are deemed extinguished in the following manner:
- By the total destruction of the servient property or the dominant property;
- By non-usage for at least ten (10) years;
- If the servitude has ceased to benefit the dominant property. However, the servitude may be revived once the conditions of servitude are again met, provided that the right of servitude has not yet prescribed.
In case that the servitude is still of some benefit to the dominant property, but the benefit is of little importance compared with the burden of the servient property, the owner of the servient property may, by payment of compensation, obtain a total or partial relief from the servitude.
Servitudes are generally not difficult to register but are not a common occurrence. If there is a refusal to register such servitude by the Registrar at the Land Office, it may be necessary to make an application in court. Be sure to contact a Thai property lawyer or solicitor if a situation as such arises so as to be aware of what options you have available to you.