6/2551 Thailand Supreme Court Opinion 190 (No. 6275) 2008
Mrs. Prapai Tanonkaew vs. Mr. Kitipoom Phetyoi

Re: Breach of Sublease Payments

The plaintiff filed an action to force the defendant to dismantle the construction and remove his assets, including his dependants, from the plaintiff’s land and return the land to the plaintiff in good condition.

The plaintiff demanded that the defendant pay compensation to the plaintiff for outstanding lease payments of 17,500 baht, including interest of 7.5 percent per year of the original amount counting from the day after the action was filed until all payment is received, and compensation for damages of a further 500 baht per month counting from the day after the case was filed until the defendant and his dependants have removed their assets from the plaintiff’s land.

The defendant made a plea and a counterclaim requesting the court to dismiss the case and to order the plaintiff to pay compensation to the defendant for damages and costs for dismantling the construction of 30,000 baht.

The plaintiff made a plea to the counterclaim and asked the court to dismiss the case.

The trial court dismissed the case and dismissed the defendant’s counterclaim and waived the court costs of both parties.

The plaintiff appealed.

District 8 Appeals Court overturned the trial court’s judgement and ordered the defendant to dismantle the construction and removed his assets and dependants from the said leased land and return the disputed land to the plaintiff in good condition. The court ordered the defendant to pay compensation for damages to the plaintiff of 500 baht per month, counting from the day subsequent to the action until the defendant removes his assets and dependants from the disputed land and returns the land to the plaintiff in good condition. Any other requests will be dismissed. The defendant is to pay court fees for both courts to the plaintiff at a fixed cost for attorney fees of 2,000 baht.

The defendant appealed.

The Supreme Court ruled that “This case is filed to evict a lessee or a tenant from a leased real property or to possibly allow the lessee to lease during the filing of the action, but the rental fees charged the lessee must be not more than 4,000 baht per month. Appealing on factual issues under paragraph 2, section 224 of the Civil Procedure Code is prohibited. The defendant is entitled to appeal to the Appeals Court or the Supreme Court on the issues of law only.

The case is to be reviewed by the Supreme Court on only one issue. This issue is whether the plaintiff is entitled to file an action or not. In considering the legal issues involved, the Supreme Court will consider the decision of the trial court based on the evidence presented in the case file under the Civil Procedure Code section 238, and including section 247, in which the trial court heard the facts presented as follows:

On 17 June 2540 B.E. (1997 A.D.), the plaintiff leased land from the State Railway of Thailand in the surrounding vicinity of Cha Owd railway station with an area of 11.13 rai according to the Thailand lease agreement around the year 2541 (1998 A.D.). The plaintiff verbally agreed to let the defendant sublease a portion of a vacant plot for a rental fee of 500 baht per month. The defendant constructed a building on the said land and subsequently defaulted on rental payments. Following this, the State Railway of Thailand sent a notice informing the plaintiff of the termination of the land lease agreement.

In the defendant’s appeal, he stated that the State Railway of Thailand terminated the land lease agreement with the plaintiff and therefore the plaintiff was no longer the one with rights in the disputed land and had no authority to file an action to evict or request compensation for damages from the defendant.

It is deemed that the sublease of the disputed land is one type of rental for real property and must come under the jurisdiction of section 538 of the Civil and Commercial Code and requires documentary evidence with the signature of the party liable.

The facts appear that the defendant occupied the disputed land and claimed a sublease from the plaintiff although they had not entered into an actual sublease agreement.

Since it does not appear that there is evidence of a written lease agreement naming the defendant as the lessee, the defendant cannot use sublease as an issue against the plaintiff. The defendant’s occupying the disputed land must be considered as occupying the land subject to the plaintiff’s right on the land. The defendant cannot claim nor argue that the plaintiff has no right to evict the defendant because the State Railway of Thailand terminated the plaintiff’s lease agreement.

Because the plaintiff has not consented to the occupation of the disputed land by the defendant and had notified the defendant to vacate the land, yet the defendant did nothing and continued to occupy the land, which is considered a wrongful act.

The plaintiff is entitled to file for eviction of the defendant from the disputed land and demand that the defendant compensate for damages. The judgement of District 8 Appeals Court was appropriate. The Supreme Court concurs with the decision. The defendant’s appeal has no basis”.

Judgement affirmed. Supreme Court fees waived.