10/2551 Thailand Supreme Court Opinion (No. 339) 2008
Mrs. Lamaai Lakhakul and Party vs. Mrs. Suan Sae Ui or Proomnuchathip and Party

Re: Land, Buildings, Right of Habitation

Civil       Component parts (land and buildings), Real estate rights, construction of a building in bad faith upon another person’s land, Right of Habitation.  (Section 144, 1299, 1311, 1402, 1405)

The Right of Habitation that P. granted to H. and the First Defendant were personal rights that both could set up against the two Plaintiffs, who were the administrators of P’s estate, to act accordingly.  However, the Civil and Commercial Code, Section 1402 prescribed “A person who has been granted a right of habitation in a building is entitled to occupy such building as dwelling place without  paying rent.” ; and Section 1408 prescribed “When the right of habitation comes to an end, the grantee must return the property to the grantor.”  In actuality, house number 30 (old) had been torn down by both Defendants; it was deemed as an end of their habitation rights since there was no building to use to claim the rights as prescribed by the aforesaid laws.  Both Defendants constructed house number 30 (new) in place of the old one after P.’s death, without the Plaintiffs’ consent, as a result, it could not create new habitation rights, house number 30 (new) became a component of the disputed land and was owned by the owner of the disputed land as prescribed in the Civil and Commercial Code, Section 144.  Also, both Defendants constructed a building upon another person’s land, in bad faith, as prescribed in Civil and Commercial Code, Section 1311.  The case in which both Plaintiffs filed a case to evict both Defendants from the disputed land and house number 30 (new) was deemed that both Plaintiffs, the administrators of P.’s estate wanted house number 30 (new) to remained in its present condition as prescribed in Section 1311.
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Both Plaintiffs sued both Defendants to be mutually responsible for 400,000  baht damage with an interest rate of 7.5 percent per year, starting from the litigation date until the day the payment was completed; and requested both Defendants and the dependants of both Defendants evicted from the land, land title deed, no. 2973 and to jointly pay for damage at 20,000 baht per month, commencing from the litigation date until the eviction date of both Defendants and the dependants from house number 30. 

Both Defendants were in default of answer.

The Trial Court ordered both Defendants and the dependants to be evicted from the land – title deed no. 2973 and to jointly pay 5,000.-baht per month for the damage, starting from the legitimated date (March 22, 2001) until the eviction date of both Defendants and their dependants from house number 30.  Also, both Defendants must jointly pay for court fees and 5,000.-baht lawyer fees for the Plaintiffs.  The Court revoked the other applications.

Both Defendants appealed to the Appellate Court.

The Appellate Court, Region 9, modified the Trial Court’s decision and ordered both Defendants to jointly pay 2,000.-baht per month for the damage, starting from the legitimated date until the eviction date of both Defendants and the dependants from the land –title deed  no. 2973.  The fees from the two courts were waived and affirmed the part that had not been modified.

Both Defendants appealed to the Supreme Court.

The Supreme Court decided that “…there was a problem to consider whether both Plaintiffs possessed the rights to file for eviction.  Both Defendants appealed that Mr. Hai and the First Defendant dwelled in house number 30 with the right of habitation permitted by Mr. Pramook Lakhalul, though, there was not official registration, it was considered as personal rights that could be in conflict.  Both Plaintiffs were merely the administrators of Mr. Pramook’s estate; therefore, they had no rights to file a case evicting both Defendants.  The Supreme Court considered that although Mr. Pramook had  granted both Defendants the right of habitation that could both be used to make the administrators of Mr. Pramook’s estate to comply with; but the Civil and Commercial Code, Section 1402 prescribed “A person who has been granted a right of habitation in a building is entitled to occupy such building as dwelling place without  paying rent.” ; and Section 1408 prescribed “When the right of habitation comes to an end, the grantee must return the property to the grantor.”

Due to the fact that house number 30 (old) had been torn down by both Defendants, it was deemed as an end to the right of habitation since there was no more building to use to claim the rights as prescribed by the aforesaid laws.  Both Defendants constructed house number 30 (new) in place of the old one after P.’s death, without the Plaintiffs’ consent, and as a result, new habitation rights could not be created; house number 30 (new) became a component of the disputed land and was owned by the owner of the disputed land as prescribed in the Civil and Commercial Code, Section 144.   Also, both Defendants constructed a building upon another person’s land, in bad faith, as prescribed in Civil and Commercial Code, Section 1311.  Consequently, both Plaintiffs filed a case to evict both Defendants from the disputed land and house number 30 (new) shall be deemed that both Plaintiffs, the administrators of P.’s estate want the house number 30 (new) to remain in its present condition as prescribed in Section 1311.  The Court deemed that both Defendants possessed no rights to the disputed land and the house number 30 (new).  As a result, both Plaintiffs as the administrators of Mr. Pramook’s estate have rights to handle general acts or handle any necessary act as prescribed by Civil and Commercial Code, Section 1791 and Section 1736, paragraph 2;  therefore both Plaintiffs possess rights to file a complaint over both Defendants without prior notice.   The Supreme Court Cases cited by both Defendants did not correspond to the facts of this case.  The Court affirmed the Appellate Court, Region 9’s decision.  The appeal of both Defendants was not sound.”

The Supreme Court affirmed and waived the Supreme Court fees.

(Kirati Kanjanarin – M.L. Rittithep Thevakul – Sirichai Vaddhanayothin)
Thitimanan Unhapipatpongse – Summarized Athit Savasu - Checked