3/2551 Thailand Supreme Court Opinion 157 (No. 2577) 2008
Mr. Mongkol Changthong vs. Mr. Chawalit Changthong

Re: Habitation Rights

The plaintiff filed a legal proceeding to order the eviction of the defendant, his dependants and his belongings from house number 51 in the Bangkok district and the return of the house to the plaintiff in good condition.

The defendant requested the court to dismiss the case.

The trial court dismissed the case.

The plaintiff appealed.

The Appellate court reversed the trial court’s decision and ordered the defendant to remove his belongings and dependants from the disputed home and return the house to the plaintiff in good condition.

The defendant appealed to the Supreme Court.

The Supreme Court explained: “An issue that has not been considered in the Appellate Court is that the plaintiff, the defendant, and Mr. Somkid are siblings with the same biological father and mother. The names of the plaintiff and Mr. Somkid appear on title deed number 11967. Their maternal grandmother, Mrs. Lamai, transferred the ownership of the land from her name to their names. The house, number 51, Soi Phetkasem, is a single story wooden home built on stilts around 40 years ago. The plaintiff, defendant and their other 3 siblings had lived in such house.

Subsequently, the defendant requested permission to build a new house close to house number 51, and was permitted to do so by the plaintiff. In August 2546 B.E. (2003 A.D.), the defendant built a two story concrete home in front of house number 51. The two homes had the same green colored stairway to reach the second floor, although the two homes were not attached to each other, and were separate homes. The homes had separate roofs, yet were overlapping.

The defendant and his dependants moved into the new concrete home in May 2546 B.E. (2003 A.D.). At that time the plaintiff had experienced a stroke and was paralyzed. The court determined the plaintiff to be an incompetent person and in the care of Mr. Krit, the younger brother of the plaintiff and the defendant.

In May 2547 B.E. (2004 A.D.), the plaintiff moved residence from a house in Nonthaburi province to house number 51 so that it would be more convenient for him to receive treatment at Sirirat Hospital. However, the house was old and in disrepair. The plaintiff desired to demolish the home and build a new home. He informed the defendant and his dependants by posting an announcement on the door of the defendant’s newly constructed home. The defendant and his dependants did not comply.

The issue in the case is whether the plaintiff is authorized to file a lawsuit or not. It can be seen that the defendant constructed a two story concrete home on the land in which the plaintiff held joint ownership rights. The plaintiff had also given prior approval for the construction. Therefore the house or structure built by the defendant, even though the green stairway was used by both parties, was not a component part of the land with joint ownership rights held by the plaintiff according to section 144 of the Civil and Commercial Code. Therefore the plaintiff holds no ownership rights over the house built by the defendant. The defendant continues to hold ownership rights over the said home.

However, the defendant built his house or structure on the land in which the plaintiff held joint ownership rights and the defendant had rights over the land would benefit the defendant. Yet the defendant’s rights over the land was not put in writing or registered with government officials. Hence, this right is a personal right between the plaintiff, holding ownership rights, and the defendant. This right had no prescribed time limit. Therefore, the plaintiff can terminate the defendant’s right pursuant to Thailand land law and according to section 1413 of the Civil and Commercial Code by providing reasonable advance notice to the defendant.

The plaintiff claimed that he gave advance notice by attaching the notice on the door of the defendant’s home. The order or termination notice stated: “By this document, I, Mr. Mongkon, (plaintiff) aged 50 years, residing at house number …am owner of land with title deed number 11967, including construction of house number 51. I am to demolish house number 51 within 15 days from the date of posting this notice. I require the occupants of such home to remove their property from such home. If this is not done, I will not be responsible for any damages which may occur.”

The contents of the document require the occupants of house number 51 to vacate the home. The house is an old, single story wooden home, built around 40 years ago on stilts. The defendant’s house, on the other hand, was a newly built two story concrete home. Around 2546 B.E. (2003 A.D.), the defendant’s home, even though it had no address and used the same stairway as house number 51, was a separate home and not a part of house number 51 in which the plaintiff held ownership rights over the component house and land. Therefore, the plaintiff’s termination notice is not considered an appropriate notice for the defendant to vacate the said two story concrete home. The way the notice was given, by posting it on the door of the home, and not giving it directly to the defendant, and without reasonable cause for doing so, is considered by the court an inappropriate way for the plaintiff to give notice. The plaintiff did not want the defendant to have rights over the land which would benefit the defendant’s newly constructed home. The plaintiff’s notice is unlawful.

The plaintiff has no authority to file an action to force the defendant and dependants to remove their belongings and vacate the home or structure in which the plaintiff had given permission for the defendant to build on the land in which the plaintiff held joint ownership rights and return the house to the plaintiff in good condition. In this case, it is not necessary to review the other issues of the defendant’s appeal. The Supreme Court does not agree with the Appellate Court’s judgment, and the defendant’s appeal has basis.”