Servitudes in Thailand

Servitudes in Thailand. A servitude is a real right registered over one piece of land (the servient property) for the benefit of another piece of land (the dominant property). It grants the owner of the dominant land specific usage rights over the servient land, such as rights of way, drainage, or utility access.

In Thailand, servitudes are governed by the Civil and Commercial Code (CCC) Sections 1387–1401 and the Land Code, and must be registered at the Land Department to be enforceable against third parties.

1. Legal Foundation

1.1 Civil and Commercial Code

• Section 1387 — Defines servitude as a burden imposed upon one piece of land for the benefit of another.

• Sections 1388–1401 — Outline creation, scope, modification, and extinction of servitudes.

• Servitudes are real rights, meaning they attach to the land itself, not the individual owner, and automatically transfer when ownership changes.

1.2 Land Code

• Requires registration of servitudes at the Land Office where the land is located for them to bind third parties.

• Registration details become part of the title deed records of both dominant and servient lands.

2. Characteristics of Servitudes

• Land-to-Land Relationship — A servitude always involves at least two separate parcels of land.

• Positive or Negative Rights:

  • Positive servitude: Gives the dominant owner the right to do something on the servient land (e.g., cross it with a road).

  • Negative servitude: Restricts the servient owner from doing something (e.g., building above a certain height to preserve a view).

• Non-Possessory Right — The dominant owner gains limited use, not possession, of the servient land.

• Runs with the Land — Transfers automatically to future owners of both parcels.

3. Common Types of Servitudes in Thailand

1. Right of Way (ทางจำเป็น) — Allows passage through another’s land to reach a public road.

2. Drainage Rights — Allows water pipes or drainage systems to cross servient land.

3. Utility Easements — For electrical lines, communication cables, or pipelines.

4. Height Restrictions — Protecting light, air, or views for the dominant land.

5. Access for Construction/Maintenance — Temporary or permanent access for repairs.

4. Creation of Servitudes

4.1 By Agreement

• The most common method.

• Requires a written agreement between the dominant and servient owners.

• Must specify:

  • Purpose and scope of the servitude.

  • Location and dimensions.

  • Duration (if not perpetual).

  • Maintenance responsibilities.

• Agreement is then registered at the Land Office.

4.2 By Necessity

• Recognized under CCC Section 1349 for rights of way where a land parcel is landlocked.

• The servient owner is entitled to compensation for the burden.

4.3 By Prescription

• A servitude can arise if use has been continuous, open, and unchallenged for 10 years under CCC Section 1389.

4.4 By Law

• Certain statutes may impose servitudes for public benefit (e.g., utility lines under public utility laws).

5. Registration Process

Servitudes must be registered to be enforceable against third parties.

Steps:

1. Document Preparation:

   • Written agreement or court order.

   • Title deeds (Chanote) of both dominant and servient lands.

   • ID or corporate documents of both parties.

2. Land Office Application:

   • File the servitude request with the local Land Office.

3. Survey and Mapping:

   • Land officials may inspect and record exact location.

4. Fee Payment:

   • Registration fee: 1% of the assessed value of the benefit, capped at 20,000 THB.

   • Stamp duty: 0.1% of the same value.

5. Registration Entry:

   • Servitude details noted on the back of both title deeds.

6. Rights and Obligations

Dominant Owner’s Rights:

• Use the servient land strictly according to the servitude’s purpose.

• Demand removal of obstructions that interfere with the servitude.

Servient Owner’s Rights:

• Continue to use their land in ways that do not impair the servitude.

• Receive compensation if the servitude is burdensome (in necessary right-of-way cases).

7. Modification and Extinction

A servitude may be modified or extinguished when:

• Agreement of Parties — Both dominant and servient owners consent to change or cancel.

• Merger — The same person acquires ownership of both parcels (CCC Section 1399).

• Expiration of Term — If the servitude was granted for a fixed duration.

• Abandonment — If the servitude is not used for 10 years (CCC Section 1400).

• Impossibility of Use — Physical or legal changes make the servitude useless.

8. Disputes and Court Intervention

Disputes often arise regarding:

• Overuse beyond agreed limits (e.g., widening a path without consent).

• Obstruction by the servient owner.

• Compensation in right-of-way cases.

If no agreement can be reached, the matter can be brought before the Civil Court or Provincial Court, depending on location.

9. Real-World Examples

Case 1 — Landlocked Resort Access
A boutique resort in Phuket was on a plot without direct road access. The court granted a right of way under CCC Section 1349 across neighboring land, with annual compensation fixed by the court.

Case 2 — View Protection Dispute
A condominium developer had a registered negative servitude preventing construction above a certain height on an adjacent lot. When the new owner began building beyond the limit, the court ordered demolition of the excess floors.

Case 3 — Utility Easement for New Development
A residential project in Chiang Mai negotiated a servitude with a neighbor to run underground water pipes and electrical cables. The servitude agreement allocated maintenance costs equally and was registered for perpetual effect.

10. Practical Drafting Considerations

To avoid disputes, a servitude agreement should clearly address:

• Exact Location & Dimensions — Include maps or Land Department survey data.

• Scope of Use — Define specific activities permitted.

• Maintenance — Who is responsible for upkeep and at whose cost.

• Duration — State if perpetual or for a fixed term.

• Transferability — Whether rights and duties pass to successors (default: they do).

• Compensation — Payment terms, if any, for servient owner.

11. Key Legal References

• Civil and Commercial Code — Sections 1387–1401.

• Land Code B.E. 2497 (1954) — Provisions on registration of real rights.

• CCC Section 1349 — Necessary right of way for landlocked parcels.

Conclusion

Property servitudes in Thailand are an essential tool for managing access, utilities, and development restrictions between neighboring plots. When properly drafted and registered, they create lasting, enforceable rights that survive ownership changes.

Whether imposed by agreement, necessity, prescription, or law, servitudes must be carefully documented and registered to avoid ambiguity and ensure both dominant and servient owners understand their rights and obligations.