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Civil and Commercial Code - Servitude
Civil and Commercial Code ss.1387-1401
The information is reviewed and updated monthly against official sources.
In short
Sections 1387-1401 of the Thai Civil and Commercial Code govern servitudes, a registered real right under which one plot of land (servient) is permanently burdened for the benefit of a neighbouring plot (dominant), covering creation, scope, maintenance, transfer with the land, and extinguishment.
1387: Definition and creation of a servitude
An immovable can be encumbered by a servitude that obliges its owner, for the benefit of another immovable, either to tolerate certain acts on his land or to abstain from exercising some powers that normally flow from his ownership. The two plots are the servient (burdened) land and the dominant (benefited) land.
1388: No increase of burden by dominant owner
The owner of the dominant land may use the servient land only as needed to enjoy the servitude. He must not carry out works or changes that place a heavier burden on the servient land than the right originally granted, keeping his use within the scope of the established servitude.
1389: Changed needs do not extend the right
If the requirements of the dominant land change over time, this alone does not entitle its owner to impose any additional obligation on the servient land. The scope of the servitude stays fixed by its original terms regardless of the dominant owner's new circumstances or growing demands.
1390: Servient owner must not impair the servitude
The owner of the servient land must not do anything that would reduce the usefulness of the servitude or make its exercise less convenient. He keeps ownership but cannot obstruct, build over, or otherwise interfere with the agreed use enjoyed by the dominant land.
1391: Right to make and maintain works; shared upkeep
The dominant owner may carry out works necessary to preserve and use the servitude, at his own cost and causing the least possible damage to the servient land. He must keep such works in good repair. Where the servient owner also benefits from them, he contributes to upkeep in proportion to his benefit.
1392: Relocation of the servitude on the land
Where the servitude affects only part of the servient land, its owner may ask to move it to another part if that move is genuinely useful to him. He must bear the cost of relocation and may not do so if it would make exercise of the servitude less convenient for the dominant land.
1393: Servitude runs with the dominant land
Unless the creating act states otherwise, the servitude passes automatically with the dominant land whenever that land is sold or made subject to other rights. The servitude cannot be detached from the dominant land and dealt with separately, since it exists only to serve that land.
1394: Division of the servient land
When the servient land is divided into several parcels, the servitude continues to burden each resulting parcel. However, it does not attach to a parcel on which, by its nature, the servitude cannot in fact be exercised, so unaffected new parcels are released from the burden.
1395: Division of the dominant land
When the dominant land is divided, the servitude continues to benefit each resulting parcel. It does not, however, extend to a parcel for whose benefit the servitude cannot in practice be used, so the right attaches only to those new parcels that can genuinely make use of it.
1396: Acquisition by one co-owner benefits all
If the dominant land is held in co-ownership and one co-owner acquires a servitude or keeps it alive by exercising it, the right is gained or preserved for the benefit of all co-owners together. A single co-owner's action thus secures the servitude for the whole shared property.
1397: Extinguishment by destruction of land
The servitude is extinguished if either the servient land or the dominant land is entirely destroyed, for example by erosion or other total loss. Once one of the two plots ceases to exist, the relationship that supported the servitude can no longer continue.
1398: Merger of ownership in one person
If the servient and dominant lands come into the ownership of the same person, that owner may have the servitude's registration cancelled. Until cancellation is registered, the servitude remains effective against third parties who may rely on the public register.
1399: Extinguishment by ten years of non-use
A servitude is extinguished if it is not used for a continuous period of ten years. Owners of dominant land should therefore exercise their right periodically, since prolonged failure to use the servitude can cause the legal right to lapse entirely.
1400: Loss and revival of usefulness; partial benefit
A servitude ends when it ceases to be of any use to the dominant land, but it revives if circumstances later restore its usefulness, provided the period of extinctive prescription has not run. Where only slight benefit remains, the servient owner may seek release by paying compensation.
1401: Acquisition of a servitude by prescription
A servitude may be acquired by prescription, with the rules on acquisitive prescription of ownership applied accordingly. In practice this means open, continuous use of a neighbour's land in the manner of a servitude over the statutory period can ripen into a registrable legal right.