Chapter 32 – Aspect and Adjacent Land

Posted on October 28, 2011 by James Vincent

When buying property, especially resort property, unobstructed sea views or the element of privacy can account for a significant part of the purchase price. In cities, the premium commanded by a good view is mentioned to be in the region of 20% of the purchase price; it is possibly much higher with resort properties.

Important tip: When viewing properties, it is essential to recognise the premium price represented by the view and to evaluate the risk posed to that premium. If a property is bordered by an open expanse of land with mature coconut trees waving gently in the wind, don’t assume it will stay that way forever; if your property has unobstructed sea views but the land plot in front has building regulations that would allow structures to obstruct the view, that vacant plot poses a risk to the future value of your property.

In Thailand, except for the registration of easements, there is no system for recording restrictive covenants directly over land titles to protect your property from the potential impact of construction on adjacent land; any limitation could only be set out contractually between the parties. In other words, there is no direct enforceability over land, only the threat of civil contractual penalties, and if the land is sold to a third party privity of contract is broken.

Therefore, when buying property it is essential to be familiar with the zoning laws and building regulations for the area in which you are buying property (see chapter 21). It is also important to investigate the ownership of adjacent land, together with any potential plans for development that could have a future impact on your property. It is possible for your lawyer to make relevant enquiries at the land office, although bear in mind that such enquiries might only uncover development plans that have been submitted; in other words, plans that are still on the drawing board might not be discoverable through formal enquiry. Thus, vacant land with the potential for future construction should be identified as a risk, although there are various degrees of risk. If adjacent land is semi-agricultural and in the hands of local “ancestors”, the planning process to upgrade the land and obtain the necessary permits for construction could take many years. If, however, the land title is Chanote or Nor Sor Sam Gor and is in the hands of a property developer, it may only be a matter of months. To err on the side of caution, if the land title is anything other than agricultural land or primeval jungle, assume the worst and accept that it is likely to be developed at some point in the future.

Important tip: In the excitement of viewing a property, it is crucial not to get tunnel vision, where your focus is entirely on the property to the exclusion of what is going on around it. By including the surrounding land as part of your due diligence, you will at least be aware of the potential risks posed by future construction and can take decisions conscious of these risks. Be aware also that properties sometimes come onto the market for the very reason that the owners have become aware of planned construction on adjacent land.

What happens on an adjacent land plot can and will affect the value of your property, either through obstructing the view, affecting rental income due to construction noise, or through its impact on the attractiveness of the local area. Therefore, to secure the long-term value of your property, choose a property that is not only attractive today but whose premium price is protected from the negative impact of future development.

Summary

• When buying property, especially resort property, unobstructed sea views or the element of privacy can account for a significant part of the purchase price.

• It is important to investigate the ownership of adjacent land, together with any potential plans for development that could have a future impact on your property.

• What happens on an adjacent land plot can and will affect the value of your property, either through obstructing the view, affecting rental income due to construction noise, or through its impact on the attractiveness of the local area.

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This is an excerpt from the new book “The Essential Guide to Buying Resort Property in Thailand”, which is to be released next month. To get one of the first copies, register your interest here:
www.buyingpropertythailand.com

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Building your own Property: Financial considerations

Posted on August 21, 2011 by James Vincent

To ensure the successful completion of a construction project, it is important for cash flows and finances to be carefully planned. It is surprising how many people start construction of a property and realise only towards the end that they are running short of funds because they had simply not taken everything into account. This is one of the worst outcomes because completion then depends on cutting costs where it really matters – on finishing work such as interior décor, furniture, fixtures and fittings, and landscaping,

This chapter discusses 8 primary considerations to take into account to ensure the completion of your property.

1. Check BOQ

The first consideration is to make sure all the requirements of the project are included in the BOQ and there are no omissions. As mentioned in chapter 45, once the BOQ has been approved and contracts have been signed, any changes or additions will be treated as “variations”.

2. List specialist contractors and other costs

The second consideration is to identify all the other costs related to finishing the project. This includes the work of specialist contractors and all aspects related to the interior décor and furnishing of the property (particularly if the property needs to be in a rent-ready condition). In addition, the costs involved with the management and administration of your property for the first six months after completion should also be included in your calculations. This includes accounting fees, marketing costs and the fixed costs associated with property management (as distinct from rental management, which are generally variable costs that are covered by rental income, see chapter 118).

The chart below lists some of the items that might need to be included in the overall financial budget:

Expense item Cost
Kitchen design contractor
Kitchen appliances, equipment and utensils
Audio-visual system and electrical appliances (TVs, DVD players, speaker systems)
Utility and service connection costs (electricity, water, sewage, telephone, Internet, satellite or cable TV)
Intelligent lighting systems
Alarm systems
Interior design and furniture (including mattresses and spare beds)
Artwork
Built-in wardrobes
Outdoor furniture (such as sun loungers, dining tables and umbrellas for pool decks, terraces and balconies)
Curtains and blinds
Pest control (monthly service after completion of the property?)
Landscaping, which includes “hard” landscaping such as retaining walls and water features; and “soft” landscaping, which refers to plants and trees
Garden and exterior lighting
Entrance gate (automatic or manual)
Bed linen and towels
Legal fees, accounting fees and taxes
Marketing and advertising costs
Fixed property management costs (6 months)
Total:

It should be noted that costs related to furnishing a property are the costs that are most frequently overlooked, especially for fitted wardrobes, mattresses, bed linen and towels, and outdoor furniture.

For expense items that are not included in the BOQ, particularly those involving specialist contractors, it is necessary to arrange separate quotations to ensure they become part of your overall financial budgeting. If one or two items on the list are forgotten it may not be a big deal; if several major expense items are overlooked, they could account for a noticeable shortfall.

3. Check funds

The third step is to ensure you have sufficient funds available to cover the full contract price with the construction company, all work to be performed by specialist contractors and all the items listed in point 2.

4. Financial cushion

The fourth consideration is to make sure you have a financial “cushion”. This is essential. Although it sounds like common sense, this is the most common reason that properties don’t get finished (or are finished with budget cuts). It is sensible to set aside an extra 10-20% of the contract price to ensure you have liquidity for cost overruns or variations. 10% should be considered an absolute minimum.

There are always unforeseen costs that arise during a construction project: materials that need to be substituted at a higher cost; items that have been overlooked by the architect and the construction company; or changes that you will want to make as construction progresses (variations). If you are already stretching the limits of your financial resources, any additional costs are going to create problems. Alternatively, if financial constraints prevent you from making modifications, they will become a source of frustration.

Important tip: If you have added up the financial requirements of the project and the sum total is already close to the limit of your financial resources, you should cut 10-20% of the costs right now, before you start.

5. Prepare for making payments

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This is an excerpt from the new book “The Essential Guide to Buying Resort Property in Thailand”, which is due to be released shortly. To be among the first to get copy, register your interest here:
www.buyingpropertythailand.com

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Negotiating with property developers

Posted on July 22, 2011 by James Vincent

Whenever a company is selling something, especially something of high value, there is generally a willingness to be flexible on certain issues in order to secure a deal. The extent to which issues can be negotiated with a developer depends largely on three things: the nature of the developer, the stage of completion of the project, and market conditions.

A large, publicly listed property developer often sets prices and sticks to them. In contrast, a small, privately-owned developer is often willing to compromise on virtually any issue to make a sale. For a financially strong property developer, the odd deal might not be important, while for a small developer the next sale could effectively make or break the project.

With regard to the stage of completion of a project, developers are often willing to be flexible when a project is first launched in order to sell the first few units and get the ball rolling. Indeed, special incentives are often used to encourage initial purchasers. Alternatively, a developer might be more flexible towards the end of a project when the units remaining tend not to have the best view or location. Sometimes a developer wants to unload the remaining units so that a “sold out” sign can be turned into a public relations event or press release.

Market conditions obviously influence a developer’s willingness to negotiate; while poor market conditions and periods of slow sales have a tendency to encourage promotions, special payment terms or lower prices, a hot property market or a successful project launch often leads to reduced flexibility and increasing prices.

However, when approaching the purchase of an off-plan property, purchasers should be aware that published prices, terms and conditions are not always set in stone, despite initial appearances, and many issues are indeed open to negotiation if approached in the right manner, under the right circumstances.

This chapter discusses 9 potential topics for negotiation with off-plan developers. It might also be used as a checklist for potential negotiations. However, before approaching negotiations with a developer, due to the fact that negotiations take place against the backdrop of changing market conditions and the stage of completion of a project, it is important to do your homework. Therefore, at a minimum, it is helpful to find out the following information:

• How many units or the percentage of units that have already been sold?
• When was the project launched (and therefore how long has the development been selling)?
• What is the feel of the sales office: is it a hive of activity or is it empty except for one bored salesperson reading a newspaper in the corner?
• Are sales targets and expectations being met?
• Ask local lawyers if the project is selling well.
• Ask property agents if the developer is generally flexible on terms.

The more information you have to start with, the better you will be able to assess your position in potential negotiations.

1. Price

To successfully negotiate with a developer, it must be understood that the issue of pricing from the developer’s perspective is typically an issue of maintaining consistency. If a developer separately negotiates the purchase price with each customer, customers will get upset if they find out a neighbour bought their property at a lower price. By engaging in direct negotiations on purchase price, a developer opens himself to potential conflict and affects their reputation for fairness. Lack of consistency in pricing also tends to encourage further negotiations.

Thus, in order to negotiate on price, it is often necessary to give the developer a legitimate reason (or excuse), which can be used in good faith to justify a price difference to other customers if the issue is raised. One valid method is the purchase of more than one property (or as referred to by investors as the purchase of multiple units). Developers are habitually open to price negotiations when they can sell more than one unit at the same time. While this is a strategy that is generally not open to most property purchasers, if you know a friend or relative who is also looking to buy property, it is often possible to negotiate a discount together.

Another way to provide a legitimate reason to the developer for discounting the price is to modify the payment terms in a way that is beneficial to the developer. For instance, “if you discount the price by 5%, then I will increase the first payment from 15% to 45%” . At the early stages of a project, smaller, less well-funded developers will obviously be more receptive to this approach than larger, well-funded companies.

If you are not an investor seeking to purchase multiple properties and you are not willing to pay more of the purchase price in advance, it might still be possible to negotiate on price with a developer if the market is flat, sales are slow, or if you are among the first or last buyers. It might also be possible to compare the attributes of various properties within the same development and make a lower offer for a property that has less spectacular views or is further away from amenities or closer to communal areas (and noise) .

Another method is to perform market research and present it in such a way that it can reasonably justify the developer’s acceptance of a lower price. For instance, after researching comparable developments you might realise that other developments are asking 80,000 Baht (US$ 2,650) per square metre, while the project of interest is priced at 100,000 Baht (US$ 3,300) per square metre for no reason that you are able to discern. If a competitor of the developer is carrying out a special promotion or offering a special discount on another project, this might be another tool to use for negotiating a discount.

A developer will then attempt to justify the higher price by explaining the different features, materials or superior location; however, approaching a price negotiation based on sound research and actual comparables is hard to refute.

However, as already noted, due to the issue of consistency and the reluctance of developers to engage in direct price negotiations, it is often better to obtain “discounts” surreptitiously or indirectly via other means, such as free furniture packages, upgrades, higher rental returns, or by having the developer cover travel or accommodation related costs.

2. Furniture packages

Furniture packages are perhaps the most obvious starting point for negotiations with a developer. In fact, property developers often put together furniture packages for the very purpose of using them as marketing tools or concessions to be used in negotiations.

Furniture packages are often used by a developer in combination with a time limit; for instance, “free furniture packages for purchasers paying reservation deposits before the end of the month”. Alternatively, furniture packages are used to facilitate initial sales, for example, “the first five buyers receive free furniture packages”.

However, such sales tools can easily be hijacked and can be used with equal effectiveness by purchasers not qualifying according to the developer’s terms. For example, “we will pay a deposit today if you include a free furniture package”. Perhaps more effective: “we have narrowed our choice down to two off-plan developments. If you include a furniture package, we will choose this one and pay a deposit today”.

Bear in mind that there are often different furniture packages at different price levels with different material specifications. This lends itself to the negotiation of specific items within a furniture package, such as outdoor furniture for the pool deck and sala, a full range of kitchen equipment and appliances, or a complete rent-ready furniture package including towels and linen.
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This is an excerpt from the new book “The Essential Guide to Buying Resort Property in Thailand”, which is due to be released shortly. To be among the first to get copy, register your interest here: www.buyingpropertythailand.com

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Ownership Options for Foreign Buyers of Thai Houses

Posted on July 12, 2011 by David Delhanty

Thai law states that foreigners cannot own land, they can own buildings only. So, if a foreigner wants to buy a house, (or duplex/townhouse), which includes land, he has two basic ownership options for acquiring the land.

1. Set up a carefully structured Thai limited company to hold the freehold of the land

The freehold of the land is put in the company name. The minimum requirement for the company is for two Thai shareholders. These Thai shareholders will be provided by the lawyer setting up the company. The foreign buyer is made a director, and a shareholder, in the company. You can also have more than one foreign shareholder or director but the total foreign shareholding must not exceed 49%. Crucially, there are a number of protective measures always put in place by the lawyer setting up the company to create a very safe structure for the foreign directors. These give the foreign directors complete control and they typically include, but are not limited to, the following: the foreign director(s) is the only officer who can commit or bind the company in any contractual dealings; the director’s shares are preference shares and hold 10 times the voting rights of the nominal shares, giving the directors 90% of the voting power; when the company is set up, all of the Thai shareholders sign an open dated share transfer form. This means that they can all be signed out and replaced with other shareholders whenever the foreign director(s) wishes.

The company owns the freehold of the land and the investor(s) is free to build on the land, sell or lease property and transfer their rights to next of kin.

Note: The company must comply with the law and money should pass through the company books, shareholder meetings must be held, minutes of meeting prepared, and yearly accounting must be filed. But a good local accountant can take care of all of this for you. It is easy to put some expenses for running the property through the company books. The accountant will also submit annual accounts for a typical fee of around 20,000 THB.

2. Lease the land on a rolling 30 year lease

An alternative to setting up a Thai limited company is for the foreigner to purchase a 30 year lease for the land. Options to renew the lease for 2 further periods of 30 years are built into the contract. The contract can also include a fixed option to purchase the freehold whenever the foreigner wishes.

Note: The house itself (i.e. the building) can be owned directly by the foreign buyer. But, if the freehold of the land is held in a Thai company, then the house will typically be held in the same company. This is for reasons of tax efficiency and ease of resale.

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