11/2551 Thailand Supreme
Court Opinion (No. 8015) 2008
Wad Nong Po (Plaintiff),
Mrs. Supaporn Rakthinthai
and group (Defendants)
Re: Land law real estate right, Right of habitation, Right of superficies registration (section 1299; second paragraph; 1403 third paragraph; 1412 second paragraph)
According to an agreement written between a plaintiff and Chor., a defendant’s mother, it was the agreement creating a right of superficies. Upon the contract needed to register with a cadastre so that it was a perfect real right to resist a third person. Even though it did not do so, it did not mean the agreement was invalid. This was able to force both parties as a right over the individual. When the plaintiff was the one party of the agreement, the plaintiff did not obtain protection from Civil and Commercial Code; section 1299; second paragraph.
The agreement set forth that Chor. and her followers were able to live in four row houses until deterioration. As it clearly identified that Chor. and her followers could dwell on the disputation row houses which were constructed on the plaintiff’s real estate. There set up two conditions for living. One was whenever the row houses had deterioration and that declination made the place not for living, the defendants had to leave from the estate. In that case, both set up conditions did not mention when the row houses faced deterioration. Even if they had it, what condition was improper to live in? As a rule, the agreement was void against with a right of superficies having time constraint. This rule conformed Civil and Commercial Code; section 1412; second paragraph and complimentary section 1403; third paragraph. ______________________________
At first, the plaintiff alleged that the plaintiff was the ownership of the real estate address no. 15707, Nong Po Sub-district, Takhli District, Nakhon Sawan. The plaintiff permitted Mrs. Chuen Rakthinthai to build row house address no. 207-209 Moo 1, Nong Po Sub-district, Takhli District, Nakhon Sawan. On September 28, 2510, the plaintiff and Mrs. Chuen signed contract. The agreement noted that the plaintiff allowed Mrs. Chuen to live in the row houses until deterioration. Later, Mrs. Chuen was dead. Both defendants who were her offspring and followers remained in those houses without demolishing them. Although the plaintiff noticed the defendants to move out from the real estate several times, the defendants had neglected to action. Conversely they modified on the row houses. For this reason, it broke the agreement which Mrs. Chuen made with the plaintiff. Since both parties dated on the contract, both defendants had resided on the plaintiff’s property over 30 years. This caused to violate the plaintiff’s a real right so that the defendants were under compulsory to demolish those row houses address no. 207-209 Moo 1, Nong Po Sub-district, Takhli District, Nakhon Sawan. Moreover, the plaintiffs stated to the defendants and followers not related to the plaintiff’s estate anymore. The defendants had to deliver those row houses in good condition. In addition, they must have cooperation or each one to compensate 1,000 Baht per month to the plaintiff. The effective date was set from applying the case until finishing demolishment. Altogether the defendants had to move their belongings and followers as well.
Then the defendants gave pleadings. They claimed that the plaintiff having vague expression. Both defendants had not violated and argued with the plaintiff’s a real right. Generally the agreement was made while Mrs. Chuen, mother of the defendants, was 67 years old. At the time Mrs. Chuen approved to give her real estate at 13 ¾ Rai and a bit portion of area to the plaintiff. By then the plaintiff allowed Mrs. Chuen and Mr. Nim KhwanMuang and their followers to live in those four row houses unless the condition was malfunction. Furthermore the defendants were able to enter the temple with their vehicle as necessary and could repair the row houses. This promise was reward each other.
When Mrs. Chuen was dead, both defendants who were her followers had a legal right to be in those disputable row houses until deterioration. Both defendants did not modify or re-construct the houses as the plaintiff alleged they broke the agreement. One more reason, the plaintiff was not recessive because both defendants had legal right to live based on the agreement of reward. Therefore, the defendants requested case dismissed.
Next judgment of Court of First Instance terminated the case and court fee was cancellation.
After that the plaintiff appealed to Appeal Court. In the same way, Appeal Court; 6th department had as similar judgment as Court of First Instance, so the court fee was withdrawal.
Lastly Dika of the plaintiff appealed to Supreme Court. Judgment which a judge heard from both parties without argument was finally. The plaintiff was a legal juristic person and landowner of the real estate address no. 15707, Nong Po Sub-district, Takhli District, Nakhon Sawan. Accordingly Mrs. Chuen Rakthinthai was the defendants’ mother. The plaintiff granted Mrs. Chuen to build and land on the row houses address no. 207-209 Moo 1, Nong Po Sub-district, Takhli District, Nakhon Sawan. Consequently on September 28, 2510, the plaintiff and Mrs. Chuen wrote down the contract. It showed that the plaintiff allowed Mrs. Chuen to live in those row houses until deterioration. Basically Mrs. Chuen donated her property at 13 ¾ Rai of area to the plaintiff. Later on Mrs. Chuen was dead. Both defendants constructed concrete wall beside the house’s wall. In addition, they remained a wood wall, changed a front door from a wood to steel door, and re-built a rooftop. However, there were some cases for analysis. The first point was whether the defendants had a legal right for living on the plaintiff’s estate or not. As the agreement of both parties, it was a right of superficies when they registered with a cadastre so that it was completely legitimate to oppose a third person. Even if they did not, the agreement was legal. It still coerced each other in terms of a right over the individual. When the plaintiff was the one party of the agreement, it meant the plaintiff was not a third person having protection from Civil and Commercial Code; section 1299; second paragraph. As the agreement in article (3) identified that Mrs. Chuen and her followers were able to reside in those four row houses until no one could live in. In other words, it obviously noted that Mrs. Chuen and her followers could dwell on those row houses situated on the plaintiff’s estate until their deterioration. And that deterioration made no one to be in the row houses. When both conditions were encountered, Mrs. Chuen and her followers had to swift away from the plaintiff’s property. As regards both conditions, it could not specify when the deterioration was and even if it had faced declination, when the dwellers had to leave. In conclusion, this case was not the agreement created a right of superficies having time constraint. That was under compulsory of Civil and Commercial Code; section 1412; second paragraph, complementary section 1403, third paragraph. Nonetheless, Supreme Court’s judgment agreed with the Appeal Court’s decree. Dika of the plaintiff sounded unreasonable.
The other point for analysis was whether it broke the agreement or not when both defendants built a new concrete wall, changed to a new steel door and renew a roof instead of a current wood wall, a wood door and an old roof consecutively. A supreme judge had declaration. Accordingly the agreement; article (3) noted that Mrs. Chuen and her followers needed to leave from the plaintiff’s property whenever the row houses had deterioration and no one could live in. Moreover, at the end of the article (3) apparently showed those row houses could be repaired. It meant whenever the houses had ruined, the dwellers could live if they fixed them. This was approval from the plaintiff for amendment. Following the claim of the plaintiff, it did not set forth how the row houses had deterioration, and their condition was not good to live. The plaintiff solely cited that both defendants, Mrs. Chuen’s offspring, had been in the row houses on the plaintiff’s estate over 30 years, and modified those which broke the agreement. In addition, the plaintiff never mentioned how the row houses faced deterioration until they could not live in. The plaintiff only alleged the defendants that they had added more construction and been on the row houses over 30 years. As a result, it broke the agreement. However, consideration of fact was that the row houses were able to be repaired. As this reason, the Appeal Court; 6th department ordered what both defendants built a concrete wall next to the current wall, changed the rooftop and renewed from a wood to a steel door, those were for better living. It did not increase burdensome to the plaintiff. The defendants did it as following the agreement.
Hence, both defendants did not break the contract. Therefore, the plaintiff had no a legal right to allege and expel the defendants from the land. Moreover, the plaintiff could not charge any compensate. Supreme Court’s judgment was identical with Appeal Court so that Dika of the plaintiff was unreasonable.
All in all, Supreme Court decreed to remain as beforehand, and court fee was cancellation.