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Posted: 25 Aug 2009 | 5:02 pm
thephuketinsider.com has obtained a copy of the Thailand Research Fund Report on alleged foreign ownership of 90% of Phuket Beach Land and have been given permission to reprint. The report is in draft copy and according to TRF will be finalized over the next few months. While the report is in Thai we have used Google Translate to offer an English language version though a few words did not translate. So here is the report which has caused the controversy:
Study the problem of state ownership of alien property in Thailand.
(Draft report completed - Quick).
By Assoc. Siriporn Sah Jacobsen joy.
And the Board.
(Comment on this report as the research Skw. No need to always agree with).
1. INTRODUCTION.. 2
1.1. Principles and reasons. 3.
1.2. Objective.. 5
1.3. The scope of education. 5.
1.4. How education. 6.
1.5. Operational guidance. 6.
1.6. The result is expected to receive.. 6
2. Analysis.. 8
2.1. Economic and social analysis. 9.
2.2. Analysis of the rules of real estate investment in an alien.
2.3. Oriented legal analysis. 20.
3. Summary and recommendations. 31.
3.1. Suggestions economic and social. 37.
3.2. Suggestions legal. 39.
"Study the problem of state ownership of alien property in Thailand"
Chapter 1. INTRODUCTION.
1.1. Principles and reasons.
Currently, foreign investment is considered instrumental to economic growth and income of the country. Minutes from the United Nations on Trade and Development, or UNCTAD UNCTAD found that foreign investment in Thailand. Representing 3 percent of the value of all foreign investment in Asia, Thailand is a source of support by the investment world with a higher role. Investment from the world market in Thailand is worth a penny a continuous period of three consecutive years. In addition, many agencies also ranked probability Investment Bank ranked Thailand as Thailand is a country should invest as No. 18 in the world in 2550 UNCTAD ranked Thailand as the country should invest as No. 11 in the world. and No. 4 of Asia. Investment from abroad held that a key component of economic growth. And contribute important to the overall investment value of the country. Reports obtained from sales of Investment Promotion Board found that investment. Project to obtain the total 1317 investment promotion program in 2551 with 845 foreign investment projects. With a total value of all foreign investment 502.432 million or 76.65 per cent of the total value of investments. Statistics obtained from the filing promote foreign investment in the first 6 months of the year 2551 by industry size is found that 57.3 percent of small projects. The investment value not exceeding 100 million baht and 42.7 percent are medium and large projects.
Growth of investment alien makes use of land resources in Thailand. More, respectively. This part is a valid use of land resources according to different rules and regulations that government is the business of such Act alien Year 2542 Year 2520 Investment Promotion Act, Industrial Estate Authority of Thailand Act application. . Founded in 2522, etc., which is clear and states to monitor and control.
But also investment by another alien is not clear based on ambiguous legal space of the foregoing, participate in international operations in Thailand, especially in the affairs related to land and real intentions of the State. will reserve the right to own land to the majority of Thai people. Limit the rights of aliens into the tether. Ownership of land of an alien in this state may not have control. And have not evaluated the circumstances and that is how trends.
Study the problem of state ownership of alien property in Thailand. Supported by the Thailand Research Fund (Skw.) in 2549-2550 found that a significant number of aliens holding real estate without the control of the law. That is the main alien can have real estate holdings, but also by following the requirements defined by law. Most written to attract foreigner investors seeking to invest. Or operations in Thailand. True only so alien to hide other objectives. Can not follow. By law have. But when demand for real estate holdings of aliens also available. Trying to find a way to avoid holding the law. Occur in various forms. Through space law. Whether in the form of corporate holdings through Thailand. Individual Thai. Or even holding the model based on family ties. As a husband - wife. Parents - children. Or holding land through a Thai agent (Nominee) or long term lease on. Holding as such. Holdings in a covert manner. Can not check the register. And without control. Make that assessment. Related to alien country, especially economic. And security is difficult. Affect several countries.
There are efforts to protect the property holdings of aliens. Issued by any number of legal measures. Whether such order or regulation. Employees for the registration. In the Department of Business Development. Ministry of Commerce official, or land. With caution in such cases, registration of registered company established. Staff must check the source of the money and Thai shareholders. If an alien holds shares or investing in partnerships of less than 40 percent of the capital. However, an alien is authorized to act on behalf of partnership or even change the business of Act BE 2542, the alien through the approval of the Cabinet on 10 April 2550 by editing the section. Definitions "alien" to include the alien. Or alien entity has the right to vote to vote more than 50 percent effort to prevent. Real estate holdings of aliens. The law also can not avoid achieved fully. Because there are holding. Through the relationship between family member or representative of Thai people. Which can not be checked.
Ability to assess the property holdings of aliens are in the case. These are the good management of land resources. Which affect developing countries. Both economically and socially. The study should explore. Data collection conditions of alien real estate holdings in the area samples. The selected study area from the provincial industry. Attractions. Or a province that holds information on such land in some areas of the country. Which could see an overview of the property holdings of aliens. To enable assessment of holdings. Including guidelines for measures to control these problems continue.
1). To explore data. And educational conditions and patterns of real estate holdings in the area of education and an alien set on important education issues.
2). To study the pattern analysis. Behavior of real estate holdings, such as an alien land holdings in the form of representatives (Nominee) holding land through a lease so long.
3). To learn the benefits. Impact of alien ownership of real estate in various forms. In the study area.
4). To assess the condition of the problem of alien real estate holdings in different formats and recommended appropriate measures.
5). Education, legal measures available space obstacles of law and that the appropriate solution.
1.3. The scope of education.
Study and survey data. Facts about the property holdings of aliens in the study area. The selected study area from the provincial industry. Attractions of the alien. Or a province with information held in such land. The behavioral analysis of the causes of real estate holdings of aliens. Analysis results of the property holdings of aliens. As well as problems arise. And recommended appropriate measures.
1.4. How education.
1). Held focus group meetings that include the Board of Investment. Department of Land and Estate Department of Business Development Chamber of Commerce, Industry Council. Office of Immigration, etc..
2). Check the information in the provincial areas including education.
C. Chiang Mai.
3). Storage both direct and indirect.
•. Direct: The seek information from relevant agencies such as the Estate Office. The Board of Investment. Commission of the National Economic and Social Development Department of Land, etc..
•. Indirect: inquiries from parents in the local area samples.
4). Interviews that both government and private sector. Issues related to the purpose of holding real estate. In the study area. And other areas. Investment data is alien in many provinces such as Surat District, Samui, Trang, etc..
5). All information has been used to analyze the cause of good behavior, the impact on real estate holdings of aliens.
6). Analytics laws and legal space. Including practices.
7.) Report study results.
1.5. Operational guidance.
Board of Education will operate under the following guidelines.
1). To review documents and report data related to land holdings associated with the expected alien from various agencies.
2). Survey data field.
3). Processing analysis. And prepare draft reports.
4). Seminar to present findings.
Table 1.5-1: operational activities.
1. 2.. 3 4.. 5 6.. 7 8.. 9 10. 11. 12.
Activity 1: data collection and document review reports about aliens from the agency.
Activity 2: exit poll questionnaire used in interviews to ask the real space.
Activity 3: Field survey of 3 provinces in the study area.
Activity 4: Analysis and reporting process.
The seminar and report.
Draft final report.
1.6. The result is expected to receive.
1). The conditions and patterns of alien real estate holdings in the area of education related organizations can be used include placing the responsibility for land policy.
2). Know why the behavior of real estate holdings alien beneficial impact of real estate holdings of different alien forms that relevant authorities can be used in land management.
3). Note condition problem of alien real estate holdings. And recommendations to relevant authorities to take measures to prevent or correct negative management or legal right.
Chapter 2. ANALYSIS.
2.1. Economic and social analysis.
The direction of economic development of Thailand since after World War 2 in particular. Has plan of national economic and social development since the year 2504 since that is the way economic liberalism open. The idea of the United States and World Bank to influence the direction of Thailand's economic development is significant in that period. Has driven the social commitments into the Thai economy grew full of world capitalism. With open and encouraging foreign investment significantly towards the goal of growth and economic growth is important.
Such policies. It is favorable to business investment and relieve foreign to national ownership of resources is. Land is important that in the past has been reserved for the Thai people, especially allowing foreign people to acquire land or property has. One motivation is to attract investors from foreign.
The economic. The foreign investment is an important part in the growth of national income of Thailand have always been. Rates of economic growth in Thailand is high. Since when are bringing economic and social development plan in 2504 BC.
The foreign investment has positive impact on the Thai economy in terms of revenue. The link to the employment of people in the country. Enhance productivity. Production workers. The progress of technology tied to the investment in other income tax states. Also has some technology transfer to individual operators in Thailand to get the parties. (Sub-contractor) to produce parts and equipment and other materials. To multinational carriers. Thai people have the opportunity to learn new skills more.
From the study, many of the past about the effects of direct investment in Thailand found that foreign direct investment is classified as important factors in expanding the capital of Thailand. The scarcity and cost factors are directly relevant to increased production capacity in the country affect the increase of national income in most.
However, investment from overseas have disadvantages in the economy and Thai society as a number.
1). The loss of local cultural traditions. Entry of multinational investment. And many foreign tourists. Affect cultural and traditional local lifestyles. The Thai people have always been characteristic of foreign cultures easily. Make traditional culture began to be lost. Wattana is fair from a foreign to more. Without good governance. Such as cultural tourism in Chiang Mai. May lose a source of cultural tourism in the long term.
2). Impair the use of natural resources and environment. Where all resources are limited. Incoming foreign investment. Would increase the use of more resources. And negatively impact caused by consumption processes into more environmentally. In the form of waste, both toxic and non-toxic.
Although investment and industrial development is the key to economic development. Revenue of the province and developing countries higher, but must be coupled with efficient use of resources. Environmental Conservation for survival was not negatively impacting the quality of life for local people. Examples of the heavy industry development in various areas in Rayong than 2 decades has affected natural resources and environment. Become issues of conflict between the industrial and government communities. Because the community believes that various pollutants such as air pollution, waste water, etc. cause environmental problems. And destroyed the lives of people and communities in the area of Map Ta Phut, Rayong ever live before being developed east coast (Eastern Seaboard) by operators and government have not done in the responsibility seriously.
That issue was. Industrial development area in Rayong province, especially areas should consider the different Industrial clear. Expansion of the scope of how the industry. Should be ended at any point. To be consistent with the capabilities of Rayong Province in terms of land use by local people benefit fairly. Better quality of life coupled with industrial and economic development and Thailand's Rayong province as a whole.
In addition, in environmental issues. Pollution caused by industrial plants in different areas of the Rayong. Are bringing it up to the court complaint. And the Administrative Court in Rayong Province. Court has already held on March 3, 2552, Tambon Map Ta Phut area of the Huai Pong Sub-district and district overlaps the ongoing King Muang Rayong. Sub marshland and legs. District and Sub-estate development and pollution control district บ้านฉาง district. Environment Act 2535.
The primary goal of the Pollution Control District announced. In addition to overseeing the areas of environmental problems and falling crisis. Another is important. The local people were involved in the plan to resolve the issue with local agencies and are responsible for care in this matter as the Department of Pollution Control. Department of Industrial and so on.
Nimitr means is good. That will review the investment industry have different direction clearer in developing environmentally conscious. Although adding cost to investors do it. But in the long term and would impact on all parties indeed.
Area in Phuket is a province of the environmental problems. Caused by incoming foreign investment and tourism, and Thai. The growing every year, in 2550 the number reached more than 5 million people, mainly foreign tourists is more than 65 per cent and Phu Province Eked is expected in the future. Visitors will have at least 10 million more within the next few years. Which will generate revenue for the province. And people in many areas. However, costs incurred are too much. Particularly in natural resources and environment. Current marine and coastal resources are starting to have problems degeneration. The main reason is to build infrastructure. Public to support tourism. The increase in the number of tourists. The increase in population from migrants hidden in the tourism industry continues to grow. Make Phuket. Faced with the problem of increased landfill rates averaged 7 percent per year from 334 tons per day in 2546 more than 550 tons in 2551 and are likely to increase continuously. The source waste vegetable market, including large department stores and hotels Airport.
Bust Another key is to buy investment property. Real estate investment and create different types of aliens. Cause land prices soaring more. In the provinces of Chiang Mai in Chiang Mai, Rayong and Phuket land prices much higher in cities. Out in different districts. Negative price them. Although in some areas of the foot of the hill a conservation area. Have intrusion. Be made to the village he came to see visitors.
In Rayong is also much higher price of land from industrial development and tourism with foreign investment into the tremendous value.
In Phuket, a hotel real estate investment and business continuity. Resulting in much higher land prices. As with the various maritime provinces tourism in the South, such as Koh Samui, Surat Thani Province. Local demand for foreign. Land prices are much higher. Making the local Thai people ever in the original space can not possess them.
According to the Department of Special investigations (DSI) found that the area is foreign to most areas is to develop real estate seaside resort hotel by 5's top areas to include foreign soil.
(1). Pattaya area. Chonburi.
(2). Island November surprise. Thani Province.
(3). Samui. Thani Province.
(4). Phuket. Phuket.
(5). Hua Hin. Prachuap Khiri Khan Province.
But by the number of occupied land to trade land to a business prohibiting aliens to operate the business under the Act of 2542 accounts alien 1 (9) and that in. Chapter 5, but demand is still alien. Also, aliens have huge capital. Can bring money to purchase land rush by the very high price. The operators can not fight a Thai prices.
During approximately 10 years ago found that growth in real estate to expand significantly. Also, funding from foreign investment into the real estate sector is rapidly growing as well. Investments in real estate in the seacoast area by foreign capital. Both legal and legitimate implementation. The government can not verify the accuracy of the source is.
By the commercial property business is not an alien may be made by Act of the alien business today (No. 2542), but when foreign demand is also huge capital. Has done in a manner based on legal loopholes. The Thai law provides for the establishment of the entity "Thai" Thai people are holding 51 percent or more, which really was the Thai people owned all or part of this is the only shareholder representatives. That both workers. Employees in the company or the company's office of legal counsel is not in any management or investment also found that as the founding entity that has many names in many corporate and if the check. down to its regulations. Also found that the state requires that an alien holds shares in a manner that is authorized shares of common stock held over Thai Mobile. Characteristics is preferred to vote at more than 1 share of common stock as to voting at 5 or 10 voice sounds alien authorized to make management of the full.
In this government that is not relevant Department of Lands. Department of Business Development. Be aware of this fact very well. But not the one to exceed the scope of the law. But when in doubt that the shareholders of the Thai people. Similar representation (nominee) Government would see the bank account showing money in shares of the Thai people and has been checked by interviews inform legal issues may be guilty as an agent. If the Thai shareholders is that they confirm their own money and government agencies that are not listed businesses may refuse or reject any trade of land because it is a corporate entity has the right to Thai nationality. the business has different laws.
On the definition of alien. Business Operation Act BE 2542 of alien weaknesses and vulnerabilities that are alien to use as the Company does avoiding an alien entity. As has been satisfied. In this regard are the efforts of the relevant changes and new definitions of an alien other provisions. Associated with the main goal in organizing discipline in investment to meet the country's true interests. Investors include the alien in lawful business in Thailand. Since the past is alien to avoid businesses that reserves space based on legal definitions of "alien" to consider specific ratio of shareholders / investors. The preferred shares issued to aliens who invest less than Thais, but voting over. Thai investment or more. Alien, but less than voting. Which entity is a state entity and Thai businesses in the reserve account at the end of Act is amended Act requires businesses of 2542, so alien to alien to operators. All business based on space law. And to oversee the business of an alien properly. At the same time not to impede the promotion of foreign investment. The cornerstone of our business alien Amendment Act (No. ...) All the following ....
(1) amended definition of the word "alien" under Section 4 of the original is set to consider only the portion of shares of an alien who holds no more than 49 percent, but in this amendment. Definitions are set to include an alien entity that has the right to vote to vote more than 50 per cent considered that the right to vote. Consider only shareholder with voting rights only. If any entity is an alien eligible to vote from half of the votes of all voting rights of the entity. The entity is considered an alien in order to prevent an alien to a business based on space law. The preferred set for alien voting more than Thai people as the past.
(2) increasing penalties for alien adjusted. Thai people and entities that are not alien to help support or co-operate with the aliens not authorized to operate as required under this Act. To another, the alien or to avoid. Violates the provisions of this Act. A higher penalty from the original fine from 100,000 baht to 1,000,000 baht increase the penalty fine from 500,000 baht to 5,000,000 baht and increase the daily fine of 10,000 baht per day to 50,000 Baht 50,000 Baht per day to 250,000 baht as punishment. adjustment as defined in existing law could not lower the rate of fear. Should increase to a higher penalty to fit the sin.
(3) Set the entity listed บทเฉพาะกาล in Thailand that is not alien as defined by existing law. But the alien as defined in the new amendment. If you wish to continue to operate. Must notify the Director within 1 year for certificate of business was to operate the account by the next. Segments according to one account or two accounts can operate up to 2 years for the people affected by the update can be defined as a business has the following three accounts or if a business book or two. This business about the security firm would have to adapt or quit business within 2 years.
(4) to set บทเฉพาะกาล who violates or guilty. If the government notified within 90 days and amended by laws within 1 year will not receive the punishment does not include the pending litigation. To increase incentives for the guilty have the opportunity to return and undo the wrong. Allow compliance with complex government not track arrest the offender.
If an amendment to the law in effect. Will provide the business already. The company is currently listed on the account 3 business registration with the alien holding up 49.99% of approximately 30,000 customers and a company registered in the Business 1 and 2, which account statement registered with the alien. shares up 49.99% of approximately 9,000 companies become the alien immediately. Therefore, there บทเฉพาะกาล to the company was falling in the period. Notification, including improving the status of the company.
Additionally, in this through the Cabinet and then on to 2550 BC, but no progress has been because of any anti-hard by foreign investors and Thai co-investors. Foreign capital. The expressed concerns over various media that sends a negative signal that Thailand is not welcome and restrict foreign investment that will. Would not allow foreigners to invest in countries negatively impact the overall economy. Countries still rely on foreign capital.
Ask the real estate business in several found that foreign capital is very important in the development of real estate. Particularly in investment projects in Phuket, Koh Samui, Thai people do not have large enough capital to invest in this area alone as well as in network marketing or customer level revenue is not much if any legislation. that affect the lower portion of foreign holdings already. Affecting the investment in real estate development significantly. Investment real estate development in Phuket and Koh Samui is a brand brand building is an attractive class of people. Most of which are high-income tourists, both in Europe and America, real estate investment projects. Especially housing characteristics expensive villas in the area of his foot to see the sea view. To support the rest of the foreigners. In the nature of sales in foreign companies. Or the name of a Thai spouse or long-term lease. This is the legal counsel's advice. Condo building expensive condominiums have occurred both in Phuket, Koh Samui and other seaside strip of land that foreigners can purchase the property under the law. The conditions.
We can not deny that. In fact, foreign ownership to land more than that. Authorized legal representative, whether through the area as an example of the work. This research, including Chiang Mai is an attractive, high-spatial. A natural and beautiful Lanna tradition. Rayong, a large industrial city. Natural gas has a deep water port to ship goods and products from them. Investments by foreign persons in many businesses in Phuket or the world-renowned tourist attraction on a seashore. Beautiful and other provinces, even as agricultural areas have foreign holdings in the same manner. This is evident from the Association of Thai farmer. Have interviewed in the book Matichon daily on May 21, 2552 that "in Ayutthaya province, a rich agricultural area to 80 percent of the region have investors from both Thai and foreign. The medium of the Thai people to rush and buy the farmer left unoccupied or rent. When he restored tenant farmer is in trouble. "
If the facts showed that the number of land falling under the power of the alien was in fact the problem is not that legislation does not force a full hand to hold alien belong but are likely to do that. how the state can control management. His land holdings to benefit the public. And to most people. Whether it's a different tax evasion today. To return to the revenue of the state. The cases found in Phuket at the condominium was sold to rental management. Management in hotels, but not hotel tax in any manner. Cause loss of local revenues should be a significant.
2.2 Analysis of real estate investment rules alien abroad.
A study on real estate investments of aliens abroad. Country's economic superpower like the United States, Canada and Australia, these countries have small economies and the geographic conditions. Very large compared to Thailand, make investments in real estate. People in different countries is not affect the overall economic superpower. How those players will see is not a rejection of incoming investment. Property of an alien In contrast. To support policy measures and investments in real estate in aliens. Of England, even if it is in a small space, but limited. Property value and high land prices make the investment in property. Property of the alien will not affect much the UK economy. Same as other superpower requires huge investments for foreign investors to buy homes. And land in the UK However, if Thailand will support real estate investment of aliens. Superpower based on the model would not be appropriate because of the power. Thai economy still less than many developed countries, those prices also. Real estate is also low to the foreign holdings of more easily. Enormous power of capital.
If you consider other countries in Asia. Singapore is a country open even on their investment. But for real estate investment then. Singapore allow foreigners to buy residential and condominium but. Commercial only. The land must have permission from the government. And buy the size limit set by the government. Since 1973 Government of Singapore harbor legislation to limit the possession of real estate. Residence of foreign people called the Residential Property Act is intended to reduce speculation in land and real estate. Extending rights to people of Singapore to acquire land and property. Property at fair value and are to buy (affordable prices), however, for foreigners with a valid license is a permanent resident (permanent residents) company / foreign investor. And foreign shareholders. Has considered the economic benefits to Singapore to ask for permission. Government must be approved by the Minister under the Act restrictions. And costs somewhat. Area in the district Sentosa Island. Foreigners can buy land in the larger scale compared to other areas. But the price of land in the island growth is worth more stating at least 400,000 baht per square wah. Allow trading of foreign land is more difficult.
Philippines has the style and format of Land Management. Real estate is very similar to Thailand. And also support the arguments and objections to acquire the land and. Property of alien like Thailand. In the law. Philippine law protecting several properties in a foreign land that may be caused by reason of a city under the country's great power to more than 400 years, the demand for derivative. Filipino people. And support local business and industry. The foreigners will have no rights of ownership of land. A property or land use to residential or business operations of the people. Foreign management methods are similar to Thai. But may have different requirements, such as the possession of some entity that is owned by a foreigner must be a case of people. Foreign shareholding not exceeding 40 per cent (60/40) to acquire or invest in Condo condominiums must not exceed 40 percent of the project who was born in the Philippines but other citizen who is a possessory right to land. Live up to 1,000 square meters and owns agricultural land for up to 1, Hector, etc. In addition, long-term land lease. Foreigners and foreign legal entities owned more than 40 per cent can make long-term lease of land not exceeding 50 years promise to 1 again by not more than 25 years, the Philippines is experiencing in many aspects. access to holdings. Land and property in Thailand as the problem representation (nominee) and the possession of land by spouses.
The real estate investment in socialist countries such as China, Cambodia. And Vietnam. Nature and form of land management and real estate similar. Thailand and the Philippines, which does not allow alien is eligible to purchase or you. Property has. But can have long-term lease. In the socialist countries. Whether citizens or foreigners of all countries have no right to land. Because land is the property of the country. The foreigners who are permanent residents (permanent residents) will have ownership of movable assets or real estate only improve. Leave their home. The foreigners living in other positions are not derivative of any existing property, except foreign investors or joint venture which is a derivative of the edge of weeks. Some property and real estate-related manufacturing and business. Except the land mentioned above, however, is noteworthy that. Although not allowed to possess or purchase real estate in the country. The Socialist. But also flows of capital investment by foreigners in. Many industries and businesses, so the concept of encouraging foreigners to acquire or to you. Property of any such claim that the motive for international investment could not be players. Due to occupiers of land or alien back often. Further into the land speculation. As found in many countries together and make a use of land without. Effective. Creating investment climate in the foreign investors to stimulate increased. Profits or lower production costs seems to be a better way out of a certain investment policies. The infrastructure and logistics that's good. Cost factors of production low. The political situation in the peace and so on.
Real estate holdings of individual alien would cause impact on the country. In many areas, so management control of individual real estate holdings. Very alien system. And focus on optimizing the country. It is essential to create positive impact in countries with higher. Whether the volume of foreign investment. Exchange of knowledge and technology, arts and culture to travel. And foreign consumption.
However, there are limitations many issues from the control itself. That may cause inefficiencies in resource allocation of the land below.
1) the separation of supervision of government agencies that are collaborating to coordinate. Together a system up This will see that. The problem of people holding real estate agents through the alien (nominee) is required to receive assistance from several parties is clear coordination between the two. Land Office and the Ministry of Commerce as limitations. The information reflects the current scope of liability of Commerce. Love on the part of the registration tax will not make to cover part of the phone. Protection of corporate property and the land office is responsible for the scope. Only in the transfer of registered land only allow data in two parts separately. Utterly a convenient channel for people's real estate holdings. Alien through agents.
2) Legal issues that affect the control action difficult. Problem real estate holdings of alien individuals from any part. Coherent legal as (a.) In a case study in Rayong area. Not reflect the wishes of the linked tab. Land allocation Act. Act as real estate. Allocate land to restrict individual alien land holding individual alien. Can acquire property and use long-term lease through. Length owned houses and buildings can thus provide. Real estate allocation of land to alien individuals (K.) in the case study area of Chiang Mai, reflects the lack of coherence. Taking advantage of rules that restrict people's land holdings in the alien. Land registration, but provide for the right to use through 'usufruct' and 'right living' is one of the reasons why people attract foreign agents in mobile systems. Property protection will be seen that the application is listed. 'Usufruct' and 'right living' within the same day the ownership of the Thai spouse is observed. Simple observation, but officials registered land under the laws provide. Individuals can be difficult to restrain officers of these processes (C.) In a case study of the Phuket area and do not reflect Jane's Law. Land ownership through the purchase and rental is open to the private sector as a way of doing business "time share" the benefits of individual alien to manage utilization. From property and difficult to control the government.
3) problems of policy inconsistency. Or public policy change resulted in deadlock. Or slowdown in investments, such as changing the color of the longer set. As a purple discoloration in the area had been set to yellow is from these changes. Cause uncertainty in the investment. And the inconsistency in the operations of the private sector. Makes some investors hold investments in areas with frequent policy changes.
Chapter 2.3 Legal analysis.
Legal issues found in other area studies have the following analysis.
1) The land is owned by an alien entity instead of Thai.
Today is to establish the Thai corporate ownership of land instead of an alien to. Having ownership of land. This is one way to avoid the law. By the Civil Society Foundation, including corporate and commercial entity Ordinary. Limited partnership, limited company, which generally alien entity formed to own lands instead of the limited company as a limited company to a juristic act is corporate wide and more convenient. Entity types. It also limits the liability can only amount to self-invest. Some operations are not true. Or simply a small business. But set to recapture the benefits of using a contract to buy land in Thailand.
Based on the Civil and Commercial Co is a business focused on corporate earnings, which is listed as Civil and Commercial, with its capital divided into shares. Each share has equal value. And shareholders at least three people. Each shareholder liability only to send their stock value does not end only.
Established limited company. From person to person, from 3 or more together to set up the company. Is a memorandum. A specified range of material, such as name, address and purpose of the company. Word displays a limited liability of shareholders. Total cost of including information from the promoter. Then provide a name to purchase. And to set its meetings. The conference to name the tender to determine details such as place of its regulations. Place set of preferred ordinary shares of the election of directors and audit staff. As well as show one's power of these people, etc. After the conference was formed. The initial directors will continue to. The Committee will trigger the need to acquire a name settlement. After that will form a limited company registered to.
For the alien entity. Based on Article 4 of the Alien Business Operation Act BE 2542 has defined the meaning of the alien.
(1) Individuals who do not have Thai citizenship.
(2) legal entities which are not registered in Thailand.
(3) entity registered in Thailand. And resembles the following.
A) corporate stock as a capital from one-half of the entity is held by persons under (1) or (2) a person or entity (1) or (2) investment value from one-half of all capital in the entity.
B) Ordinary limited partnership or registered. The managing partner or manager is a person (1).
(4) entity registered in Thailand. As a share of capital from one-half of the entity held by persons under (1) (2) or (3) a person or entity (1) (2) or (3) investment value from one-half of total capital. in the entity.
Section 97 of the Land Code. Has made the following entity has the right to land is as alien.
(1) limited company or public company with shares as capital. Held by aliens than forty-nine percent of the capital. Or shareholders alien than half of shareholders as the case may.
For the benefit of this section, any limited company issued stock certificate issued to the holder type. The share certificate is considered an alien is considered.
(2) limited partnership. Ordinary registered or created. An alien into shares worth more than forty-nine percent of total capital. Or ผู้เป็นหุ้นส่วน is alien than half the number of ผู้เป็นหุ้นส่วน case may be.
(3) associations and cooperatives that are members of an alien than half, or the. Alien presence to benefit particularly. Or a majority.
(4) Foundation, whose mission is to benefit, especially alien. Or a majority.
And if the entity mentioned above or by holding shares. In other corporate entity which is similar to the above. To another entity that is considered alien.
Given the law, both the release. It said that if the limited company was formed. Shareholders is an alien holding less than 49 percent of the capital. Which generally provide that shareholders are Thai owned 51 percent of shareholders and the alien holds 49 percent of the company is established Thai entity. And the ability of land holdings in Thailand as Thai people. The law to avoid alien shareholders have the power to manage the company. Although the proportion of shares less than Thai shareholders in the form of various follows.
(1) The shareholders of the alien.
Ratio of shareholders, which is alien to holding no more than 49 percent of its capital. Could see that the power to manage the company to shareholders in Thai. However, due to the Civil and Commercial divided into 2 shares of common stock and preferred types. The preferred set of conditions and the related capped call of such shares and when it is determined how the related capped call. Law prohibiting the change again. Resulting in the issuance of preferred shares to shareholders and make alien shareholders. Preferred shares have voting rights (voting right) and share of profits or dividends over the Thai shareholders holding common stock. Such as those found in the provinces of Chiang Mai. The permissions to the shareholders the power to manage alien cause. Its actual shareholders are not Thai. Although the proportion of shareholders holding more than any foreigner.
In addition, the facts in Chiang Mai study area. Also found that Thai shares repeatedly in several companies in the form of shares or a place not by the shareholders in this case, Thai people will not play any of the management company no. The Thais may be provided to shareholders as to the conditions required by law. To its established status as a Thai entity only.
(2) to shareholders as a foreigner Directors.
Company Act of imaginary people. Making any juristic act. It must be the authorized representative or management. The Committee is extremely important. Because responsible for compliance with its regulations. Included in the control of large shareholders meeting. Executive of the company and oversee the work of employees in the company. The first election of Directors is in the process of meeting established.
Laws require that directors need not how many. But set that must contain at least one person. To manage the company's regulations and the preponderance of the meeting of the General. Therefore, all shareholders is to elect directors by majority resolution of the shareholders meeting.
However, if the establishment of holding companies to land instead of the alien practical conference established law that makes it almost does not occur all. Because shareholders are Thai people holding office instead of aliens. Not demand that operations be true. How waste management authority, it must be aliens, so book your conference has been made very impersonal. Filed to the Ministry of Commerce only. And though the conference is really up. But by defining the type and condition of the above preferred. Cause even though shareholders will hold shares of the Thai people more. But with conditions of restricted stock to senior over. Cause can not win the votes of shareholders was alien. Allows the Board could choose to shareholders are alien to. Is because not all directors are required by law forbidden. As the case studies found in the Rayong area. The company has a Thai entity. However, all directors are aliens. Business and commercial real estate. Their homes and land in style villas and condominiums. Many in Rayong and Chonburi.
In such cases. Although the company is registered with the Thai corporate shareholders of Thai shareholders. Proportion to any law but the power to manage its back to the people. Alien demonstrates that the shareholders in the form of a puppet or not the Company shareholders Thai people do not play a role in voting or management of foreign affairs, but any company that has said its establishment. This is. Avoid the law clearly due account append Act's business. 2542 alien entity has made a business of land trade must not allow business people to alien. Commercial land to a business process is established and registered. Thai corporate and tax conditions in the Thai business trade by land not contrary to law.
The way around the law of alien land holdings in Thailand by. Thailand to establish a corporate land holdings instead of the two cases above Land Department Land Department has books to place various measures in the performance of the officers asked if the acquiring entity's land. Alien shareholders. To examine the company has reason to believe that Thai shareholders instead. As anti-avoidance measures, however, the law is not law. Is the only place it within the guidelines of Employees Only.
In addition, to avoid scrutiny of the competent official in the first. Alien registration will be established by the shareholders are all Thai people, including directors authorized the company's Thai as well. But when such juristic act. Including land acquisition has been completed. Is authorized to make changes in its management. Including modification, shareholders with this case Department of Lands will not know the status of such changes. Because changes will revise the registration office and the Department of partners. Commercial Registration only. Department of Trade and has no obligation to report this information to the Department of Lands has informed the Company that, despite changes in proportion and become shareholders. Alien entity. It can also land holdings that continue to matter even if it is illegal. And companies can exploit the property that was until the Department of Land information and instructions for sale.
However, guidelines for the investigation to obtain the land tax. An alien shareholders. Is one way to prevent evasion laws. The current Ministry of Interior and Department of Land has been guiding the review follows.
(1) inspection prior to registration established.
If the registered partnership or limited company established a ผู้เป็นหุ้นส่วน. Or shareholders of an alien into stock or shares in partnerships or companies. Limit from 40 per cent but less than 50 of the capital. Or if the alien into stock or shares in the partnership or limited company less than 40 percent of the capital. However, an alien is authorized to act on behalf of partnership or limited company. To ผู้เป็นหุ้นส่วน. Or shareholders are Thai people submit evidence showing the source of investment operations. Registration request. The document must show the amount that corresponds to the amount put into shares. ผู้เป็นหุ้นส่วน or stockholders of each of the following.
(1.1) A copy of the deposit book or bank statement copy.
(1.2) a document issued to a bank guarantee or financial status of ผู้เป็นหุ้นส่วน or shareholders.
(1.3) a copy of evidence showing the source of funds brought into stock or shares.
(2) Check for acquiring land.
Request acquiring land Co Limited partnership. Or the Ordinary registered. (Except public company or entity authorized to obtain land under other laws such as Section 27 of the Investment Promotion Act 2520 BC, under Section 44 of the Industrial Act. Thailand, BE 2522, or mutual funds, real estate commercial bank established under the law. Defined specifically Its capital. Of Finance Insurance and insurance companies) which is designed to operate as trading real estate rental operations generate bungalow hotel by an alien entity is considered. Shares or a committee or have reason to believe that Thai shareholders instead. Alien to the competent official investigation of income of the shareholders and Thai. With the money that the Thai shareholders to buy shares to the following guiding.
(2.1) investigate income shareholders with Thai nationality or occupation that much more per month. The documents show that reliable. Including investigations of the money used to buy shares as a currency stash. Or from inheritance. If this evidence is to deposit accounts. Or evidence of inheritance. If a loan. Require proof of the loan.
(2.2) if a corporate shareholder of Thailand. Although there is no alien corporate shareholders or directors. They need to investigate the source of money used to buy shares that are also the how. The investigation of agents that corporate shareholder money to buy what is coming. May represent the company's balance sheet. Or if a loan. Corporate representatives, it must also show proof. The minutes include the purchase of shares in the company.
(2.3) If land acquisition tax in higher capital without registered mortgage of land to the entity proof that the money used to purchase land as well.
The Co Limited partnership. Or Ordinary registered and obtain transfer of land without purpose. In the real estate business, but have reason to believe that Thai people are. Shareholders instead of an alien to investigate the source of the money that shareholders be acquired Thai nationality.
Check that the request of an alien land. This requires a check of the money that shareholders Thai shares would be purchased. A way to prevent money laundering, people are buying property with a property, such as those found in the study area in Phuket with another.
(3) change the status of the entity.
If some tax avoidance legislation. The land to be transferred, while not alien entity. Later, after the capital increase has become the alien entity. Department of Lands has issued the Land Office, Bangkok and provincial land offices. Send list with an alien entity owned or directors within months. June every year. (Except entity authorized to obtain land under other laws) to the Office of Information Services business. Office of Business Development or Province sure. The corporate capital is added to a foreigner or juristic person. The audit found that if any corporate entity has become alien. Entity will be forced to sell land in the right set up under Section 87 of the Land Code.
2) the land lease contract term.
Although the law allows an alien to land holdings are located. Many otherwise. However, guidelines and restrictions on land ownership as it is a law license. Many, too. Even if the land is owned by a Thai company set a shareholder representative. Or as the Company is not. Make it easier for foreigners to acquire land for a living, but whether the tenant entity status. Requires expense for the accounting. Include providing auditors and companies to send information to taxpayers. Department for Business Development and Revenue Department every year. Making burden on alien to acquire land in Thailand. Long-term land lease is a form of evasion laws. Even if the alien is no ownership of the land. But has the right to utilize the land in the long term. In the study area, Rayong. Found that long-term lease of an alien land. The lifetime of a rental tenant. Or rent has scheduled a 30-year lease to live.
The Civil and Commercial Section 540 requires that rental properties. Do not have a lease as a schedule more than 30 years if the contract is between the longer term. Is reduced to a 30 year lease and the expiration of the lease can be more but not exceeding 30 years, and Section 541 requires that lease. May be determined over the life of the lease or rental of time. Cause long-term land lease is another way to occupy people's lands. Alien to live. Without having to invest money and not have to ask permission to obtain land. To live alien. As defined in the Land Code.
However, the problem of long term land rental. Books are the most urgent Ministry of Interior Ministry of Interior 0515 / d 2227 dated July 21, 2551 Make alien entity in the case of land lease holders or other types of long-term. The investigation that is intended to rent land in order to include matter. This land holdings instead of alien or contrary to the Act on business. 2542's alien or as a way to monitor long-term lease of an alien land. And to prevent evasion by law to lease the land instead of trading rules and conditions than monitoring.
3) invasion of state land.
From legal issues found in the study area, Phuket, Phuket is found in people of a seaside area of intrusion. The seaside land that is สาธารณสมบัติของแผ่นดิน. And selling the right to acquire land, the seaside to aliens. That even people without legal title to the land as public. Properties of the earth, whether by Section 1307 of the Civil and Commercial. Prohibited to take the property of the land, whether the property is the property of the public. Land or not such a case, however, the provisions applicable to interstate people. Which resulted in people not entitled to take possession of land held by statutory protection and may not claim any rights to use during the lean state but the people together. Who owns the use rights before there will not be interference by others. And shall have the right to sell the possession of people.
Therefore, the sale of land in the seaside derivative of the people to an alien. Is where government officials must be serious in law enforcement. And expel the invading land, the seaside. As the สาธารณสมบัติของแผ่นดิน.
In addition to the invasion of land and shore. In Phuket to create a home invasion on mountain areas in this case, if an area of forest encroachment. Relevant authorities need to investigate and enforce laws strictly. To expel intruders out, however, still have some land that has a valid patent.
Generally, land will be issued showing the right to land, including land title deeds or หนังสือรับรองการทำประโยชน์ (Miss 3, 3 a. Ms., Miss B 3.) Will be a land that is similar to the guidelines. defined in the Ministerial Regulation No. 43 (Year 2537) issued under the Act for the Year 2497 Land Code Article 14 is.
(1) must be a land that has the right to acquire land and then serve.
(2) land that is not common as people use the lake water highway embankment to raise the utility man.
(3) is not land of the Commission for National Land. All land development and to provide to people.
(4) is not public land at the National Committee organized reserve or restricted land for public use together.
(5) land is not reserved for the Cabinet to maintain natural resources or other public benefits.
In addition, the guidelines above. Land that resembles the following. Will issue a Letter of Intent has the right to land must be in the following terms.
(1) that his mountain areas and the Minister of Interior announced prohibited under Section 9 (2) of the Land Code. Occupiers of land must be legally derivative code by land.
(2) that the island must have proof of notice of possession (August 1), preemption certificate, ใบเหยียบย่ำ, N.c. 3, 5 K.s.n. land or land held National Board has approved. provide to people. Or land which has been providing benefits under Section 10 and Section 11 of the Land Code. The host committee has approved the National Land.
(3) sanctuary of the National District National Park. Area Lookout prohibit hunting wildlife area or areas to be classified. As permanent forest area must be proof of notice of possession (Aug. 1) or preemption certificate issued, ใบเหยียบย่ำ, Trahag before saving or restricted land.
(4) land in the area of land reform. Occupiers of land must be proof of notice of possession (August 1), the invoice would have the right to land under Section 27 of the Code's degree or a preemption certificate of land, or evidence ใบเหยียบย่ำ N.c. 3, a. . S.n. 5 before the district announced land reforms.
(5) areas with the steepest average 35 percent or more as defined in the National Forest Policy. Occupiers of land must be derivative before. Code enforcement of land (prior to December 1, 2549) or there is evidence to show that is a derivative of land lawfully, such as proof of notice of possession (August 1).
Land on the mountain. A title deed or the หนังสือรับรองการทำประโยชน์. Caused by the villagers and take into possession of a residential long. And the application for land occupied by village chief. And ผู้ใหญ่บ้าน. After that the land has led to a patent request or take S.k. subsequently adopted for a diploma or license in order to ask Ms. Miss 3 g and leads to obtaining title. land. Making a deed of land in the mountains a lot. The land title deed is correct, these will be purchased by the capitalist rush Thai Thai or entity to be sold to an alien land sales both in the form blank. And selling buildings. In this case, officers should check into that land on these mountain areas. Title deed or patent has been how. Foreigners to own lands how. And law enforcement must be strict if it is found that the patent which has been illegal in the patent issued to various areas in the mountains should be a check and possession of land has been strictly to prevent. trespass to state land.
4) the right to live and usufruct.
The Civil and Commercial Section 1402 requires "any person has been living in the house right. That person shall have the right in the house rent free, "live right, so it is a type Trapisitti who has the right to live in right. House party without rent.
Rights are based. Are scheduled or have lived all their lives. If the timing is not right to live. Will lose the right to quit at any time, but notice to the residents as appropriate. Scheduled for live rights must not exceed 30 years and can extend to. But not more than 30 years since the renewal date. The right to live will not be transferable by inheritance, however, even if residents are not entitled to the benefit limit, but only live. People who live in the family can live with is.
The registration rights will be based on only the right to live in the house only. Registration rights will not live in the land. In the registration rights based operations. Charge on immovable property will be listed in this category. The subscription rights without compensation living. Registered capital is not the type. 40 percent conversion fee of U.S. residents have the right to registration fee. This category has registered capital. The Committee evaluated pricing capital. Set appropriate compensation to the parties agree to pay as a capital cost estimate. Fees charged to property rights and juristic act. Fees and charges listed in the price of the parties agreed to pay compensation. For each 1 percent implied by the Ministerial Regulations No. 47 (Year 2541) issued under the Act, the 2479 BC Land Use Code Article (7) (l).
Therefore, based on the registered rights. Can do both the wage and non-wage areas such as case studies in Chiang Mai. The Thai wife to live with registration rights, compensation for the husband, however, registered alien residents the right to not allow an alien ownership of land. But only the right to live in the house only. It is not prohibited by law. If the provider does not rely expressly forbidden. Who live to keep interest or common interest of the land to be used only as a memory. A household needs to be. When right ends and living. Dependent property is to return to the living.
For the usufruct. The Civil and Commercial Section 1417 require that real estate may be subject to enforcement usufruct. As a cause who has the right to derivative use and take advantage of that property. Including the power to manage property. And for the full usufruct of forestry, mining or digging soil. Have the right to seek benefits from the forestry, mining or digging the soil by Section 1418 requires the usufruct. Will be scheduled, or full of life right time. If a usufruct no schedule. Law to assume beforehand that usufruct is always full of life, personal usufruct must be scheduled no more than 30 years and can extend to. But not more than 30 years since the renewal date. If ever usufruct ถึงแก่ death. Usufruct to always end there.
To register the usufruct. If registered usufruct without compensation. Registered capital is not the type. Conversion fee and 50 baht for each registered usufruct with compensation. This category has registered capital. The Committee evaluated pricing capital set to take the match fee. If agreed to pay as a capital cost estimate to charge fees. Registration rights and juristic act. Fees and charges listed in the price of the parties agreed to pay compensation. For each 1 percent implied by the Ministerial Regulations No. 47 (Year 2541) issued under the Act, the 2479 BC Land Use Code Article (7) (l).
Usufruct is one type Trapisitti landowner still has ownership of the land. The landowner does not give full ownership of land usufruct, so even with full usufruct is alien. Holders of land in usufruct can be registered either. The usufruct scheduled. No schedule. Most of life or usufruct. Is not prohibited by law.
5) business a Time-Sharing.
Time-Sharing or selling rights for hotel accommodation or accommodation that is different direct marketing (Direct Marketing) in the form of hotels and accommodation, with a different interval prior to the sale of members Members are entitled to. use. Room service at the hotel or accommodation. Subscription. Amount or the time specified in the terms of the members but also members. Guests can redeem at a hotel or accommodation in the hotels or. Rooms subsidiaries in Thailand and abroad.
However, members do not own any hotel or accommodation that they are members in any way. The only right to live according to conditions only. Land ownership in the hotel or accommodation. Plant owners are still strong housing so that business is even a Time-Sharing Sales entry or stay in hotel accommodation to various members of an alien term. But does not affect ownership of land in an alien thing.
Chapter 3. SUMMARY AND RECOMMENDATIONS.
Investment from abroad has been instrumental to economic growth and income of the country from several studies about the effect of direct investment in Thailand last found that foreign direct investment is held. important factors in expanding capital. Thailand is scarce. And capital factors are directly relevant to increased ability. Production of the country. The impact of increased revenue in the nation.
Globalization in a competitive environment to attract investment is concentrated intensively by the government of Thailand has seen the importance of foreign capital and. Trying to change policies related to investment. Intend to provide foreign investors to invest for most it is necessary to allow people to alien ownership of land and property in different ways, whether under the Investment Promotion Act. Estate Act. Bring money to invest 40 million Baht. Possession or condominium does not exceed a combined 49 percent of all condominium units in a given area. Or in the possession of characteristics such as long-term lease for industrial and commercial. Or rent to a housing. The person holding legal alien is made there and sends. Positive signal that Thailand is a country with an economy liberalization. Friendly international.
However, also the use and possession of land resources in many different areas of the country that is not legitimate. Especially in activities related to land and real state memory is thought. Links to reserve a right to the Thai people in Thailand by the terrain and climate of the good price of land has been compared to the price of land in developed countries. Shore areas, especially in the region. And island areas are cataract. Visitors who are nationally and leisure travel. When foreign demand is. Coupled with a tremendous amount of capital. With technology management and business networks and markets available. Foreign investors are entering the business based on the gap in the legal definition of the word "alien" in the Act, an alien business of Thai people representing shareholders. To Thai juristic entity is eligible to do business. Real estate and other holdings, including land, as the Thai general.
Such conduct is not unlawful behavior. But occurs widely in different areas. Thailand needs a foreign land, especially near shore. Is an island of natural beauty. Whether Pattaya Phuket Koh Samui Hua Hin Yan application of the
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