Trust Deed Notarization for Capital Market — REIT · Infrastructure Trust · ESOP Trust · Securitisation SPV (Trust Act B.E. 2550)

Which trust types does the Trust Act 2550 cover?

Capital-market transactions only: (1) REITs; (2) infrastructure trusts; (3) ESOP / employee welfare trusts; (4) securitisation SPVs; (5) additional trust types designated by the SEC under § 12. **Inter-vivos, testamentary, charitable, and asset-protection trusts are out of scope** — Thai law has no recognition for them. Use a foundation, long-term lease, or usufruct instead.

Who can act as trustee in Thailand?

Only Thai legal entities licensed by the SEC under TorChor. 39/2559: commercial banks (Krungthai, SCB, BBL, Kasikorn, BAY), asset-management companies (Kasikorn AM, SCB AM, KTAM), licensed securities companies with a trustee licence, and custodian banks. A foreign-bank Thai branch may apply for the licence but must clear capital adequacy, operational capability, and the local-director test.

Can a foreign sponsor establish a Thai REIT?

Yes. A foreign sponsor may contribute property into a Thai REIT as settlor, subject to: (1) the property being situated in Thailand (lex rei sitae); (2) the trustee being a Thai licensed entity; (3) the 49% foreign-unitholder cap (Land Code § 96 bis); (4) BOI approval if BOI benefits are sought; (5) FATCA / CRS compliance. Foreign sponsors typically use a feeder fund (Cayman / Luxembourg) to aggregate foreign investors.

How much must a REIT distribute?

At least 90% of net profit within 12 months after period-end (SorRor. 26/2555). Below 90% the trust loses pass-through status and is taxed at 20% CIT. Most Thai REITs distribute 95–100% to maximise yield. Unitholders pay 10% WHT on distributions (individuals) or 15% (foreign corporates without a DTA).

How is an ESOP trust different from a provident fund?

**Provident funds (PVD)** are defined-contribution pension plans under the Provident Fund Act 2530 — vesting, withdrawal, and tax benefits are statutory. **ESOP trusts** are equity-based compensation under the Trust Act 2550 — they are more flexible, accommodate stock options / RSUs / phantom shares, and let you design the vesting schedule. Listed companies typically run both side by side.

What does a trust-deed amendment require?

(1) trustee and REIT-manager consent; (2) a unitholder special resolution of at least 75%; (3) SEC approval if the change is material; (4) notarisation of the amended deed; (5) updated SET filing; (6) disclosure to unitholders within 14 days. Material changes include investment policy, change of trustee / manager, distribution policy, and leverage limits.

Does a securitisation SPV trust need a true-sale opinion?

Yes — it is mandatory. The opinion (independent counsel) confirms that (1) receivables transfer outright (not as a loan or as collateral); (2) the SPV is bankruptcy-remote from the originator; (3) there is no recourse to the originator beyond disclosed credit enhancements; (4) the servicer can be replaced. The opinion is notarised and filed with the SEC and the rating agency (Fitch / TRIS / S&P).

What happens if a trustee self-deals?

Under § 31: (1) the transaction is voidable and beneficiaries can rescind within one year; (2) disgorgement of profit plus interest; (3) personal liability against the trustee's own assets; (4) SEC licence revocation; (5) criminal liability if fraudulent (Penal Code § 354 misappropriation); (6) PI cover usually refuses payment because intentional misconduct is excluded.

What if foreign unitholders in a REIT exceed 49%?

Land Code § 96 bis prohibits foreign unitholders above 49% in REITs that hold land. Breach triggers (1) a forced sale of the land by the Director-General of the Land Department; (2) restructuring (e.g. converting to a pure-condo REIT with no land); (3) suspension of listing during remediation; (4) ethics breaches for the trustee and manager. Monitoring relies on a daily unitholder registry and an auto-block as the ratio approaches 49%.

Does the Trust Act 2550 provide asset protection?

Partially — only the bankruptcy remoteness of trust assets. Trust assets sit outside the settlor's estate (§ 38) and the trustee's estate (§ 39) and, in some cases, the beneficiary's estate. Creditors of those parties cannot reach trust assets except via a fraudulent-conveyance action within one year. **This is not a Cook Islands- or Nevis-style asset-protection trust** — the Trust Act applies only to capital-market transactions.

What does trust-deed notarisation cost?

Fixed fee: (1) SET-listed REIT trust deed = quote on request (phone / LINE / email) depending on asset size; (2) private REIT = quoted on request; (3) infrastructure trust = quoted on request; (4) ESOP trust = quoted on request; (5) securitisation SPV = quoted on request depending on tranche complexity; (6) trustee resignation / substitution = quoted on request; (7) unitholder resolution = quoted on request; (8) MFA apostille = quoted on request. **No contingency or performance fee on trust assets.**

How is confidentiality and PDPA compliance handled?

(1) attorney-client privilege under Lawyers' Ethics § 12; (2) PDPA §§ 24 + 26 for beneficiary data; (3) the UBO registry is shared only with AMLA and the SEC, not public; (4) the trust deed separates a public section from a confidential schedule; (5) cloud storage is ISO 27001 with AES-256 encryption; (6) Lloyd's PI cover at THB 100M per occurrence; (7) 10-year document retention under SEC and AMLA rules.