What Public Land Encroachment Thailand Enforcement Actually Targets
Public land encroachment Thailand authorities investigate under the National Park Act doesn’t automatically mean a title is invalid — prior private ownership before a park’s designation carves out an important exception.For a law firm with real estate matters among its core specializations, it is fascinating to watch the executive branch of the Thai state in its efforts to implement the law. We’re referring to the latest investigations by the Department of National Parks, Wildlife and Plant Conservation (the “DNPWPC”) — particularly those you may have recently heard about in Phuket.
It should be noted that this firm is not directly involved in the matter that generated recent headlines in Phuket, and therefore we cannot speak to the accuracy of the DNPWPC’s claims or actions. What follows below is an overview of the general legal framework under which these investigations are taking place, along with some thoughts on how the owners of the affected land plots might have avoided their current situation.
Based on our review of recent news coverage, we understand that the DNPWPC is investigating several properties it believes fall within a “National Park.” What legally constitutes a National Park is defined under the National Park Act (1961) (the “National Park Act”). Section 6 of that Act provides that when it is deemed appropriate to designate an area of land of natural interest for preservation, for the benefit of public education and amenity, the government may do so by Royal Decree, with a map annexed showing the area’s boundaries — and that designated area is then called a “National Park.”
The areas currently in question in Phuket fall within an area designated as a National Park by the Royal Decree establishing Sontalay Forest, Khaoruag Forest, Khaomuang Forest, and Nai Yang Beach in Maikhao, Sakoo, and Cherngtalay Sub-Districts, Thalang District, Phuket, as a National Park in 1981 (the “Royal Decree”).
It’s important to understand that a property’s location within such a National Park is not, by itself, evidence of any illegality. Under Section 6, paragraph 2 of the National Park Act, land designated as a national park must not be owned or legally possessed by anyone other than a public body — in other words, if land was privately owned before a National Park was established by Royal Decree, that land is not considered part of the National Park.
In this case, it has reportedly been alleged that certain areas within the relevant National Park’s boundaries may have been owned or possessed by the local population at the time of the Royal Decree. However, if such prior ownership or possession cannot be proven, Section 16 of the National Park Act prohibits anyone from holding or possessing land, or clearing or burning forest, within a national park. Section 21 further empowers the competent official to order anyone violating Section 16 to vacate the national park or cease the relevant activity. And Section 22 provides that where a violation has altered or added to anything within a national park, the competent official may order the offender to demolish or remove it, or restore it to its original condition — and if the offender fails to comply, cannot be identified, or for purposes of preventing further damage to the park, the official may take such action directly, with the resulting costs borne by the offender.
That said, any revocation of an improperly issued land title or land utilization certificate within a National Park does not fall under the DNPWPC’s jurisdiction — that authority belongs to the Land Department. Section 61 of the Land Code grants the issuing administrative body the power to decide on and revoke a land title where inaccuracy or illegality is found in connection with its issuance, with the Director-General, Deputy Director-General, or an authorized Inspector of the Land Department empowered to order its annulment or amendment. It should be noted, however, that the Land Code requires a detailed procedure involving a “Committee of Enquiry” before any such revocation can take effect.
Importantly, exposure to this kind of eviction or revocation risk can be avoided if potential owners or lessees perform comprehensive due diligence on a property before investing. And then there are those who hear the legal facts from competent counsel but choose to follow the latter advice anyway. These advisors will tell investors that “the law in Thailand doesn’t matter,” because either “no relevant law exists here” or “enforcement will never happen.” As the above makes clear — and as recent media coverage reminds us — this simply isn’t true.
To avoid being caught up in an official land title investigation, certain issues must be checked before investing in Thai real estate. A comprehensive title investigation requires more than simply reviewing the title document itself — in fact, all of the land plots currently at issue in Phuket purportedly carry what appear to be legally issued title deeds. Properly examining a title document is only the first step of a multi-step investigation process requiring genuine legal competence.
Reviewing the title document itself provides information about the land’s owner — and therefore the potential seller or lessor — as well as the type of title and any encumbrances. Mortgages, charges, and other real rights must be recorded on the title deed to be enforceable, as must leases exceeding a three-year term. The title document also provides a basic outline of the land plot’s shape and size.
What a title document alone cannot reveal, however, is the title’s history — how it was “upgraded” to its current status. That requires an investigation at the relevant land department by someone with the specific competence and knowledge to know what to look for, and what to do if something unexpected turns up, conducted by reviewing the entire relevant title file for the land plot.
Issues that can — and unfortunately often do — surface through this kind of investigation include: an improper underlying document, such as a “flying Sor Kor 1”; other flaws in how the title was issued (National Park-related issues being just one of several potential problems, and that’s an understatement); the land owner not having possessed the land long enough to qualify for the title; or land area in earlier records not matching later records, among others.
Even where a land title is valid, an investor should also confirm whether the target land can actually serve its intended purpose. Other important issues worth investigating — separate from the title’s legality — include the legal status of physical and utility access to the land, and applicable land use laws.
Another common oversight among property buyers is failing to check whether the property is currently subject to pending court proceedings — if so, the sale could potentially be revoked depending on the outcome.
Finally, since a land purchaser is jointly liable with the seller for unpaid local maintenance taxes for up to five years, any professional title due diligence should also address this issue.
Real estate investment is usually a long-term, and often significant, commitment. Slow enforcement does not mean no enforcement. It cannot be repeated often enough: there is law in Thailand, and it does, sooner or later, matter — as the National Park land investigations in Phuket illustrate.
Understanding public land encroachment Thailand risk requires recognizing that the DNPWPC and the Land Department operate under entirely separate legal authority — enforcement action from one does not necessarily mean the other has, or will, revoke the underlying title, though both should be considered in any thorough pre-investment investigation.