China’s property market witnessed an overall decline in 2022, with real estate investment shrinking in a bottoming market. Increasing opportunities along the Belt and Road Initiative are consequently directing the attention of Chinese property developers to Southeast Asia, where Thailand is favoured as one of the most attractive destinations for foreign investors.
However, since Thai law strictly restricts foreign ownership of land in principle, acquiring land ownership has been a key hurdle to investing in real estate.
But on 25 October 2022, the Thai cabinet approved a draft ministerial regulation that, for the first time, allows foreigners to purchase land in Thailand as individuals, giving them direct ownership of land. Although the draft has yet to be officially implemented, it signals Thailand’s intention to green-light foreign ownership of land, opening up new investment channels for Chinese property developers.
Based on the draft, the authors analyse the main ways that Chinese property developers can acquire land ownership in Thailand.
OWNERSHIP AS INDIVIDUALS
The draft allows foreigners who meet the following requirements to buy a maximum of 1 rai (1,600 square metres) of land in Thailand as individuals.
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- Investor eligibility requirements. Eligible foreign investors are grouped into four categories, namely: foreign individuals holding at least USD1 million in assets; retirees with a personal income of at least USD80,000 a year; workers from well-established overseas companies, and highly skilled professionals in targeted industries.
- Land location requirements. Target land should be located in Bangkok, Pattaya city, a municipal area (Khet Thetsaban), or a designated residential area, under the city planning act. The area must be situated outside any designated military safety zone.
- Requirements on amount and term of historical investments. Foreign investors should hold long-term resident (LTR) visas and have invested at least THB40 million (USD1.2 million) in Thailand in the form of government bonds, real estate investment trusts (REITs), infrastructure bonds, or investment in companies eligible for investment promotion incentives at least three years before applying to buy land.
Clearly, the draft is more applicable to individual investors. From the perspective of Chinese property developers, it is still necessary to examine “suitable candidates” and related arising risks.
Importantly, the draft has not yet been officially implemented, and detailed rules are still in the process of formulation. However, eligibility requirements for investors and restrictions on historical investment will likely change in the future.
Since the stability of this policy remains to be seen, it is suggested that Chinese property developers keep abreast of latest policy developments to ensure early planning for investment.
EXEMPTION FROM RESTRICTIONS
Foreign investors obtaining the approval of the Board of Investment Promotion (BOI) or the Industrial Estate Authority of Thailand (IEAT) can circumvent general restrictions under Thai law to directly acquire land ownership.
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Wang Jihong
Partner
Zhong Lun Law FirmBOI Approval. Under Thailand’s Investment Promotion Act and the Act Promulgating the Land Code, the BOI can approve foreign investors to acquire ownership of land to carry out BOI promotion projects, but it shall not be used for any other purposes.
- IEAT Approval. Thailand’s Industrial Estate Authority of Thailand Act provides that – subject to IEAT approval – foreign investors may acquire ownership of land within IEAT-defined industrial zones for industrial activities. However, on the termination of industrial activities, or within three years after the transfer of the relevant project, the land owned by the foreign investor shall be returned to the IEAT or transferred to a qualified transferee.
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From a practical point of view, to obtain approval from the BOI and IEAT, foreign investors usually need to make commitments to post-investment matters, such as minimum capital requirements and technology transfer plans, in addition to meeting mandatory requirements of Thai law.
Therefore, it is suggested that before making investment decisions, Chinese property developers should communicate with the BOI and IEAT, confirm whether the proposed investment projects are eligible for exemption from land ownership restrictions, and understand the project adaptability requirements and attitude of the competent authorities so as to establish, improve and effectively implement an investment plan that meets BOI and IEAT requirements.
JVs TO OWN LAND
Chinese property developers may take a “roundabout way” to own land in Thailand by establishing a joint venture in Thailand with a Thai partner and acquiring land ownership in the name of the JV, thereby owning land indirectly.
The foreign investor’s shareholding in the JV shall not exceed 49%, and the number of foreign shareholders in the JV shall not be more than half of the total.
Associate
Zhong Lun Law Firm
It is worth noting that the Act Promulgating the Land Code prohibits foreign investors from owning Thai land through a nominee, which means the above-mentioned Thai partner shall be a beneficial owner of the JV, and the Chinese investor shall not hold shares in the JV through a nominee.
Any violation will be subject to three years’ imprisonment and/or a fine of THB100,000 to THB1 million, with a daily maximum fine of THB10,000 to THB50,000 during the violation period.
In this way, although the Thai party has a majority stake in the JV, the Chinese property developer can consider establishing restrictive contracts within the company and reasonably planning the internal governance structure, maximising the rights and interests of the Chinese party for de-facto control over the JV company and land ownership.
KEY TAKEAWAYS
In general, the draft provides a new approach to investing in real estate in Thailand. Chinese property developers planning to invest should keep abreast of the latest developments in Thailand’s land policy.
Also, regarding risk prevention, extra attention should be paid to the preliminary investigation procedure. Where necessary, third-party consulting services can be used to conduct thorough due diligence on the subject land, land owner and partner.
Understanding the current situation regarding land in Thailand, and the credit standing of the owner, and choosing the appropriate transaction mode, can fully protect the rights and interests of Chinese property developers.
Wang Jihong is a partner and Liang Danni is an associate at Zhong Lun Law Firm
22-31/F, South Tower of CP Center
20 Jin He East Avenue
Beijing 100020, China
Tel: +86 10 5957 2288
Fax: +86 10 6568 1022
E-mail:
wangjihong@zhonglun.com
liangdanni@zhonglun.com
