Servitude in Thailand: Civil Code Rules

A rent-free right to live in a building is a separate real right, explained in our guide to the right of habitation in Thailand.

What Is a Servitude in Thailand?

A servitude, or phara jam yom, is a burden on land that exists for the benefit of other land. Section 1387 provides that immovable property may be subject to a servitude under which its owner must suffer certain acts affecting the property, or must refrain from exercising certain rights of ownership, for the benefit of another immovable property.

The Code names the two sides of the relationship. The burdened land is the servient property, and the land that benefits is the dominant property. A footpath across a neighbour’s plot, a drainage pipe under it, or an agreed limit on building near a boundary are examples of such burdens. The right belongs to whoever owns the dominant property at the time.

How Is a Servitude in Thailand Created?

A servitude in Thailand arises in one of two ways: by juristic act, such as a contract between neighbours, or by prescription. The method of creation decides what must be registered and how far the right can be relied on against later buyers of the servient land.

By agreement and registration

A servitude is a real right in immovable property. Section 1299 provides that acquiring such a right by juristic act is not complete unless the act is made in writing and the acquisition is registered with the competent official. An unregistered servitude agreement does not create a complete real right.

By prescription

Section 1401 states that a servitude may be acquired by prescription. It applies the rules on acquisitive prescription in Title 3 of Book 4 mutatis mutandis. For immovable property, Section 1382 in that title sets a period of ten years of peaceful, open and continuous possession.

A servitude acquired by prescription exists without a written agreement. Nevertheless, Section 1299, paragraph 2, limits its effect while it remains unregistered. The holder cannot have the register changed, and the right cannot be set up against a third party who acquired the servient land for value and in good faith and registered that acquisition in good faith.

Rights and Limits of the Dominant Owner

The dominant owner may do everything necessary to maintain and use the servitude, at their own cost (Section 1391). That right comes with limits. The owner may not change either property in a way that increases the burden on the servient land, and a change in the dominant owner’s needs does not justify a heavier burden.

Section 1388 bars the dominant owner from making changes to the servient property, or to the dominant property, that increase the burden on the servient property. Section 1389 adds that, if the needs of the dominant owner change, the change gives no right to increase the burden. A path granted for passage on foot, for example, does not expand because the dominant owner later wants heavier use of it.

Under Section 1391, the dominant owner may cause damage to the servient property only to the smallest extent the circumstances allow. The dominant owner must also keep in good repair, at their own expense, any works already made. If the servient owner also benefits from those works, the servient owner contributes to the costs in proportion to the benefit received.

Duties of the Servient Owner

The servient owner keeps ownership of the land but must not interfere with the servitude. Section 1390 forbids the owner of the servient property from doing any act that diminishes the use of the servitude or makes it less convenient.

The servient owner does have one remedy of their own. Under Section 1392, if the servitude affects only part of the servient property, the owner may demand that it be moved to another part. The owner must show that the move benefits them, must bear its cost, and must not reduce the convenience of the dominant owner.

Servitude in Thailand When Land Is Sold or Divided

A servitude in Thailand follows the land, not the person. Section 1393 provides that, unless the instrument creating it says otherwise, the servitude passes with the dominant property when that property is disposed of or becomes subject to another right. The servitude cannot be sold or charged separately from the dominant property.

Division of either plot does not end the servitude. Under Section 1394, if the servient property is divided, the servitude continues over every resulting part. The owner of a part that the servitude does not use, and cannot use, may demand release from it.

Section 1395 applies the same logic to the dominant side. If the dominant property is divided, the servitude continues for the benefit of every part. Where the servitude is not used, and cannot be used, for the benefit of a particular part, the servient owner may demand release in respect of that part.

Section 1396 deals with co-owned dominant land. A servitude acquired or used by one co-owner of the dominant property is treated as acquired or used by all of the co-owners.

How Does a Servitude in Thailand End?

A servitude in Thailand ends on destruction of either property, through non-use for ten years, or when it ceases to benefit the dominant property. Merger of the two plots in one owner allows the registration to be cancelled, and a court may release the servient owner from a servitude of very small benefit.

1. Destruction. If the servient or the dominant property is entirely destroyed, the servitude ends (Section 1397).
2. Merger. If both properties come into the hands of one owner, that owner may have the registration of the servitude cancelled. Until it is cancelled, the servitude continues to exist as regards third persons (Section 1398).
3. Non-use. A servitude that is not exercised for ten years is extinguished (Section 1399).
4. Loss of benefit. A servitude that becomes useless to the dominant property ends. It revives if circumstances allow its use again, provided the period in Section 1399 has not run (Section 1400, paragraph 1).
5. Release against compensation. If the servitude still benefits the dominant property but the benefit is very small compared with the burden, the servient owner may claim release from all or part of it, on payment of compensation (Section 1400, paragraph 2).

Servitude or Right of Way of Necessity?

A servitude and a right of way of necessity both give passage over a neighbour’s land, but they rest on different rules. A right of way of necessity arises by law when land is enclosed, under Sections 1349 and 1350. A servitude arises from an agreement or from prescription under Sections 1299 and 1401.

Section 1349 allows the owner of land enclosed by other land, with no access to a public way, to pass over the surrounding land. The place and method of passage must suit the need of the person passing and cause the least possible damage. The person passing must compensate the owner of the surrounding land, and the compensation may be fixed as an annual payment.

Section 1350 covers enclosure created by division or partial transfer of land. In that case, the owner of the enclosed plot may claim passage only over the land that was divided or transferred, and without compensation. A servitude, by contrast, does not depend on enclosure. It may serve land that already has access, and its terms are those of the registered instrument or of the use that founded the prescription.

Points to Check Before Buying Thai Land

For a buyer, servitudes cut both ways. A plot may depend on a servitude over a neighbour’s land for access or drainage, or it may itself carry a burden in favour of a neighbour. Because some servitudes arise by prescription without registration, the land register and a site inspection should be read together.

On the benefit side, the buyer should confirm that any servitude the plot relies on is registered and that it will pass with the land under Section 1393. A path that has not been used for ten years may already have ended under Section 1399. On the burden side, the buyer should identify registered servitudes and any visible paths, pipes or channels used by neighbours. Section 1299, paragraph 2, protects a registered buyer who acquires in good faith and for value against an unregistered prescriptive servitude. That protection requires good faith, so visible use on site should be recorded during due diligence.

Frequently Asked Questions

Planning Around a Servitude in Thailand

A servitude in Thailand ties two plots of land together for as long as it lasts. The Civil and Commercial Code fixes the core rules: registration for servitudes created by agreement, no increase of the burden, transfer with the dominant land and extinction after ten years of non-use. Therefore, access, drainage and building limits should be settled in a registered instrument and checked before any purchase. Related rights are covered in our guides to usufruct in Thailand and adverse possession in Thailand, and our real estate lawyers in Thailand advise owners and buyers on these rights. The Code is available from the Office of the Council of State, and registration is handled by the Department of Lands.