ฎีกา InTrend Ep.170 ภาระจำยอมระงับเพราะไม่ใช้ยกขึ้นต่อสู้ผู้ซื้อสามายทรัพย์ได้หรือไม่

InTrend Supreme Court Decision Ep.170: Can an easement be suspended because it is not used? Can it be used against the purchaser of the property? The Host: Public Relations and Information Division Office of the Judiciary Guest Host: Sorawit Limprangsi Advisors: Sorawit Limprangsi, Suriyan Hongwilai, Tassanuch Kulsitchaiyaya, Natsima Ananthanupong Show Creator: Sanita Jaruphumik Episode Producer & Editor: Sanita Jaruphumik, Rawipha Kingjak Sound Designer & Engineer: Kritapas Thongjaeng, Kittichai Losuwan Coordinator & Admin: Sorat Waisayadamrong, Supattra Khammisak, Supawat Dolmin Art Director: Supawat Dolmin, Panjaree Suwannaphochon, Kanokkul Wasayangkun Webmaster: Phussacha Ruangkul, Wachira Rojsuthiwat There are many types of real estate rights. The acquisition and termination of these rights are governed by legal criteria to ensure their full legal effect. Sometimes, conflicts arise between different parties regarding the rights they have acquired or possessed. The issue we will address now concerns whether an easement that has been extinguished due to unused use for more than 10 years can be used as a defense against the purchaser. Mr. Daeng owns a plot of land. The adjacent land belongs to Mr. Dam. Since the two knew each other, Mr. Daeng requested to use Mr. Dam's land as a walkway and a road for vehicles. Mr. Dam agreed and registered the easement for Mr. Daeng's land. Subsequently, Mr. Daeng changed his access route, using a different walkway and road for vehicles. He has not traveled or driven through Mr. Dam's land for over 10 years. Mr. Daeng later sold his land to Mr. Khao and registered the transfer of ownership to Mr. Khao. Mr. Dam believes that Mr. Daeng no longer owns the land. He had not used the registered easement for over 10 years, so a fence was erected around the easement. Mr. Khao filed a lawsuit demanding that Mr. Dam demolish the fence. Mr. Dam testified and counterclaimed that the easement was terminated, and requested that Mr. Khao register the easement for Mr. Dam. In this case, the easement was originally acquired through an agreement between Mr. Daeng and Mr. Dam, and the easement was duly registered. However, a problem arose after the easement was acquired and no use was made for more than 10 years. This is a case under Section 1399 of the Civil and Commercial Code, which stipulates that if the easement has not been used for 10 years, the easement is deemed terminated. If Mr. Daeng still owned the land, Mr. Dam's construction of the fence would not pose a problem, as Mr. Daeng had not used the easement for over 10 years. However, when Mr. Daeng sold his land to Mr. Khao, after Mr. Khao agreed to purchase and registered the transfer of ownership, the registry still maintained the easement's beneficial rights to the land Mr. Khao purchased from Mr. Daeng. Mr. Daeng's failure to use the easement for more than 10 years represents a case in which the easement's rights were terminated as a result of the circumstances stipulated by law, not as a result of an agreement between the parties to terminate the easement. Therefore, this constitutes a termination of property rights by means other than a legal transaction. In this case, Section 1301 stipulates that the provisions of Section 1299 shall also apply to the termination of property rights. Section 1299, paragraph two, provides that in cases where a change in property rights occurs in a manner other than a legal transaction that has not yet been registered, such a change cannot be raised as a defense against a third party if the third party acquired the rights in good faith and paid compensation. In Mr. Khao's case, when Mr. Khao purchased the land, the easement was still registered. However, Mr. Khao did not know that the easement's rights had been terminated because it had not been used for more than 10 years. Therefore, such termination cannot be raised against Mr. Khao. Mr. Khao therefore has the right to use the easement and has the right to request that Mr. Dam demolish the fence he has erected. Therefore, even if the easement has been extinguished by non-use for more than 10 years, if the extinguishment has not yet been registered, the extinguishment cannot be invoked against an outsider who has acquired the property in good faith and paid compensation. (Supreme Court Decision No. 2413/2023)