While this restriction may hold back individual holiday home buyers, for foreign investors it's a case of where there's a will there is always a way which is where the Thai special purpose company or SPV comes in. This article offers a detailed examination of Thai SPVs and their use in property transactions for overseas buyers.
The establishment and use of a Thai SPV for the purchase and ownership of real estate is often the most appropriate way forward for an overseas investor in order for them to ensure compliance with Thailand's property ownership laws .but it's worth bearing in mind from the outset that if an SPV is established with more than 49% of the registered capital held by foreigners or with foreigners making up over half of the shareholder numbers, then the company is immediately restricted when it comes to property ownership in the same way an individual overseas buyer is restricted.
What this means is that in order for a foreign property investor to use a Thai special purpose company to own substantial real estate assets, the shareholding structure of the company has to be altered.
Because Thailand's property laws don't deal with the issue of 'control' when discussing the use of SPVs in property transactions, the simplest and most effective legal way for an overseas buyer to use an SPV for their purchase of property whilst ensuring they have a controlling interest in the company is to divide the company's share capital into two different classes - ordinary and preference shares. The different classes of share are then distributed to the minority foreign and majority Thai shareholders in such a way that the shares with superior rights relating to voting, dividend and liquidation distribution for example, are held by the minority foreign shareholders who then take control of the company whilst maintaining a limited presence that enables the SPV to still » buy property in Thailand.
When it comes to selling the Thai property owned by the SPV, the company can become liable for significant property transfer taxes and fees which are deducted at source and which cannot legitimately be avoided - and so one way around this is to actually sell and transfer the foreign shares in the SPV to the new buyer instead - especially if they too are a foreign purchaser. However, such a transaction poses risks to the buyer who may inadvertently be buying into a company that has mismanaged its taxation records and which could face fines or back taxes in the future - therefore unfortunately such a path is seldom taken.
The best way for a foreigner using an SPV to hold real estate to avoid this situation is to keep up to date, audited and accounted for financial and taxation records and to employ the full services of a tax advisor so that when they want to sell, they will be able to prove that the SPV is clean of any outstanding debts and that it has been managed correctly and that the buyer will be purchasing not only property in Thailand, but an effective vehicle to protect their ownership rights in spite of the fact that they are not from Thailand originally.
