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Property Law

Property Law

Property Law in Thailand

September 13, 2018

Thailand is becoming an ever more popular retirement and choice of country to live with its low costs and beautiful scenery not forgetting of course the world famous friendliness of the Thais themselves. But finding out about the laws governing property ownership here can be confusing. Here are the bare bones of Thai property Law

o A foreigner can own a condominiums long as less than 40% of the condos or apartments in the building are owned by foreigners. Many people believe it to be 49% although this regulation was an addition to the existing law and was only meant to be in place for one year and has since expired.

o A company can own property such as land and a house (and hence the foreigner can buy land and a house via their Thai registered company) as long as no one foreigner owns more that 39% of the company (recently amended from 33%) and total foreign ownership of the company does not exceed 49%.Still ambiguous and under review.

o The Thai wife of a foreigner can own property (a recently changed legal status due to gender equality in the new 1997 constitution revision), in her name only. This is fine as long as you don’t have marital problems. (The same, of course, goes for a Thai husband, but the law was changed recently for Thai wives due to the new constitution guaranteeing equal rights.)

o A foreigner can lease land for 30 years, with an option for another 30 years, the first 30 years are guaranteed they are registered with the Land Department, however the second can be contested.

o If you gain BOI approval you may as a company is able to buy up to one rai of land. Although this is meant for very large investors.

At the end of the day if you are seriously looking to invest in Thailand you should consult a good lawyer who will be familiar with the latest property laws.

 

Property Law

Intellectual Property Law – Patent Law – Invalidity for Obviousness

July 9, 2018

The case of Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and Another [2007], concerned a patent for a medical device used in operations. The defendants owned a European patent for a device called a ‘stent’ used in coronary angioplasty. The ‘stent’ is inserted into a diseased artery during the procedure to keep the artery open. The claims in the patent concerned a ‘stent’ coated with a polymer loaded with the drug taxol. This drug inhibited the development of tissue which might result in the artery closing.

The defendants licensed the patent of this device to BS, a manufacturer of ‘stents’. The claimant, who is a competitor of BS, sought to have the patent revoked on the grounds that the invention was obvious in the light of prior art. The judge held that it was obvious to have tested taxol, and therefore the patent was invalid for obviousness. The defendant appealed.

The defendant’s appeal was dismissed.

The question to be considered was whether the invention was obvious. In order to make this assessment, a number of factors had to be considered:

§ The attributes and common general knowledge of the skilled man;

§ The difference between the claim and the prior art; and

§ Whether there was a motive provided or hinted by the prior art.

It was also held that:-

§ Sometimes the commercial success of an invention could demonstrate that the idea was particularly good, whereas in other situations the fact that the idea may have been ‘obvious to try’ could come into an assessment. The most important factor however was the nature of the invention.

§ The judge’s decision should stand.

§ This was because the patent had not in any way demonstrated that taxol actually worked to prevent a diseased artery from closing, even though it had been tested. The judge was therefore right to deem the patent invalid for obviousness.

 

Property Law

What is Property Law

May 5, 2017

Property law falls into the common law legal system and concerns all aspects of ownership of ‘real’ property (land ownership as opposed to ownership of movable possessions) and personal property (movable possessions).

The concept of property law has been around since the days of ancient Rome and the emperor Justinian’s Corpus Juris Civilis, which was concerned with dividing civil law into three categories: personal status, property and acquisition of property. The concept of property law as we know it today first evolved out of France’s feudal system and was the first successful implementation of such a law, called the Napoleonic Code, based on Justinian’s ideals.

Thus property has gone from lying in the hands of the monarchs and feudal systems of the middle ages to total rights of the individual property owner. However, civil law to this day still distinguishes between property laws surrounding immovable possessions, like land, and property law concerning movable possessions, like clothes, cars, etc.

Property laws today ensure that a person’s legal rights and obligations surrounding their property are protected. This is a branch of law where it is especially important to be informed in, because it directly affects people more than any other sector of the law. The numbers of lawyers in existence are many; however, don’t go to just any lawyer for any disputes regarding property. Property law is a specialized field that needs the skills of a solid professional who has previous experience in property law.

There are numerous intricacies, loops and holes in property law and a property lawyer can help you navigate them easily and efficiently. Under property law fall a number of topics, such as the overlap of contract law and property law, property rights vs. personal rights, possession of property, transfer of property, leases and much more. Property law, then, seems to be a blanket term that applies to any number of topics and scenarios dealing with both movable, personal property rights and movable property rights.

 

Property Law

United Kingdom Property Law

May 1, 2017

Most students who have taken a course in modern political science would appreciate that the United Kingdom is unlike most other nation-states because it itself made of three countries, commonly referred as sub-national administrative entities. Since each of these sub-national entities viz. – Scotland, England and Wales, and Northern Ireland has its own Parliament; they have drafted property laws that apply within the boundaries of their jurisdiction.

There are commonalities between the property laws of Scotland, England and Wales, and Northern Ireland. For example all three jurisdictions follow the Common Law System, however the commonalities are trumped by the differences between the laws of England and Scotland specifically.

Scottish property laws have been derived from the Feudal Legal System of middle ages, in sharp contrast to English and Welsh that have been derived from Roman Legal System. Northern Irish have more in common with English property laws, than they have with Scottish.

The Queen is still the head of state of United Kingdom. However, her office is merely ceremonial. The decline in powers of the monarch’s office over the past two centuries ensured that important changes were made to the title of property in the United Kingdom. Now, the Queen is not considered the owner of all properties in the United Kingdom. Instead, the citizens of United Kingdom can hold the title of properties in their individual capacities. This may appear a banal change for young readers; however students of history will appreciate the major departure it meant from centuries-old property laws.

As per the UK legal system, property is typically classified as either real property or individual property under the aegis of Common Law System. Countries that follow the Civil Law System typically make the distinction between movable and immovable property. In the United Kingdom, a person or legal entity can have absolute ownership of an individual property. However, a person or legal entity cannot have claim absolute ownership of a real property. Owner of an individual property cannot lease his property, and therefore cannot charge rent. A person owning a real property can shift the ownership to another person or legal entity by signing a legally binding deed document. However, there is no need for an elaborate deed to be signed for transferring the ownership rights of an individual property. Only civil lawyers can represent appellants in property lawsuits. There are special civil courts that preside upon matters pertaining to property laws.

 

Property Law

Dubai Introduces Greater Transparency and Purchaser Protection Into It’s Property Laws

February 14, 2017

Dubai Property Law and freehold: Overview:

Prior to 1999 Non-GCC expatriates resident in Dubai were only permitted to rent or own property under UAE federal law approved 99-year leasehold interests.

In 2002 – the Dubai government announced that it would permit expatriates to own freehold property in selected projects – and instantly created the Dubai international property sector.

Earlier projects had been commenced by the Dubai Government owned or part owned Emaar and Nakheel Properties.

Emaar started with Dubai Marina in 1999 – and later with the Emirates Living Community projects – Emirates Hills, The Meadows, The Springs, The Lakes, and The Views – which were initially offered on a leasehold basis – and subsequently on a freehold basis.

In May 2002 – Dubai’s then Crown Prince General Sheikh Mohammed bin Rashid Al Maktoum – signed a decree permitting foreigner investors including local residents – to buy and own freehold property in selected projects – and the Dubai property sector rapidly grew in size and importance immediately after this.

Nakheel concurrently launched the Palm Jumeirah – as a freehold project – and all previously developed leasehold property was automatically converted to freehold.

The new 2002 freehold policy – and the decision by the major government owned master developers – to subdivide master plots into individual sub plots for sale to other developers opened the market to new entrants such as:

Damac Properties,
Dubai Properties,
Mizen,
ETA Star Properties,
Union Property.

Although the freehold liberalization policy was announced in 1999 – it was not officially incorporated into the law until the 14th of March 2006 – when the Dubai government issued a law authorizing foreign ownership of property in designated project areas of Dubai

With the freehold property law in effect – any property purchased by a foreigner is listed under his or her name for life – and this enables the property to be registered with the Dubai Government Lands Department.

The owner then has full rights over the use and possession of the property including the right to sell, lease or rent it.

Registration of property including off plan units: Law no 14:

Law no 14 came into effect in Dubai in October 2008 – and requires all off-plan units to be registered with Dubai Lands Department – which will make the Dubai real estate market a safer place for home purchasers and investors – and responds to past complaints from investors – especially off-plan investors.

The new law also establishes a mandatory procedure applicable to any developer seeking to terminate a sale and purchase contract.

The new property law requires that the sale of all off-plan properties be fully registered with the Land Department before they can be resold.

This will have a natural slowing effect on the rate at which any property can be subject to speculation – and be flipped and resold.

The registration information must include:

the name of the purchaser and the vendor;
the value of the property;
the location of the property;
any relevant mortgage or payment plan details;
the payment history and fees paid and chargeable.

Any sale that is not registered will be considered void – and therefore unenforceable in any court of law.

An interim registration law came into effect on August 31 2008 – providing that any ownership change of off-plan properties in Dubai will be invalid if not registered in RERA’s Interim Register.

Upon registration – all registered sales are then officially recorded in the Land Department Register.

Sale transactions executed before the law came into effect are not exempted – and must be registered within 60 days of the laws enactment.

The law will also prevent unscrupulous developers and agents charging transfer fees – although they will still be able to charge administration fees which will be capped – and only payable upon the Land Department’s registration of the sale.

So bad news for speculators – as the registration procedure will slow down the market – but good news for home owners and long term property investors who will have a well protected title under a Torrens registration system similar to that in place in Australia.

The new mortgage law:

The new mortgage law – which came into effect on October 30 2008 – states that mortgages will be invalid if not registered at the Dubai Land Department or the new Interim Real Estate Register – and it sets out all procedures concerning a mortgage and its legal effects on the parties to it.

It also includes execution procedures for the mortgaged property – and prescribed proper conduct between the bank and the borrower.

The mortgage law is designed to provide greater regulation within the Dubai property market to protect buyers.

Under law 14 a mortgage may only be offered by a registered financial institution – like a bank or finance company – and the mortgage is required to be fully insured.

Each mortgage has to be registered with the Land Department – the details required for registration being:

the amount of the mortgage;
the value of the property being mortgaged;
the name of the person to whom the money has been lent;
and the repayment period and terms.
Real Estate Regulatory Authority [RERA]:

Reforms of Dubai’s real estate sector’s regulations started in July 2007, when a Real Estate Regulatory Authority [RERA] was established in Dubai to set policies and to create awareness of rights and responsibilities in the property sector.

The Strata Law:

The Strata Law was issued and came into effect on March 31, 2008. It defines the responsibility of property owners and developers in the management of common areas in multi-owner developments, like gated communities and apartment buildings.

Dubai Property Court:

A new specialist Dubai Property Court was established in September 2008 – solely to adjudicate over property disputes.

It is likely to reduce the workload of RERA – which since it’s formation – has been swamped by property cases – including many for developer project delays and noncompliance with the property developer’s original description.

In summary the new Dubai property laws introduce a regulatory system in respect of the Dubai property market that in many respects now offers superior consumer protection to Dubai property purchasers to that offered by many western jurisdictions.