🧠 Real Estate Law Challenge: Can a Lender Seize a House Already Under a Sell-and-Buyback Agreement?

Meet the Characters

👳🏻‍♂️ Mr. A – A lender
🧑🏼 Mr. B – A homeowner and borrower
👨‍💼 Mr. C – An investor who accepts properties under sell-and-buyback (buyback buyer)

📝 The Situation:

Mr. A lent money to Mr. B through a loan agreement.
Mr. B owns a house in his name, and Mr. A assumes that in case of default, he could seize and liquidate that house to recover the debt.

However, their agreement is purely a loan contract with no collateral.
The contract is for 1 year.

6 months later...

Mr. B needed more capital for business expansion.
He sold the house to Mr. C under a sell-and-buyback (ขายฝาก) agreement.
Mr. C saw potential in the property and accepted the deal.

When the 1-year loan term ended...

Mr. A demanded repayment from Mr. B.
But Mr. B couldn’t pay.

Mr. A then filed a civil lawsuit, demanding the house (now under sell-and-buyback with Mr. C) to be seized and sold in a public auction to recover the loan.

❓ The Question:

Can Mr. A legally request the court to force Mr. B’s house (now under a buyback contract with Mr. C) to be sold to repay the loan?

Choose your answer:

A. No.
Because Mr. C had no knowledge of the prior debt, and a loan contract is a separate transaction from a buyback sale.

B. No.
Because Mr. C now legally owns the house under a conditional sale, and Mr. B no longer has full ownership.

C. Yes.
Because the loan agreement predates the sell-and-buyback. The house still legally belongs to Mr. B since the buyback term hasn’t expired.

D. Yes.
Because Mr. A is considered a preferential creditor, and the sell-and-buyback contract is invalid.

🎯 Difficulty Level: ★★★★☆

✅ Answer: B

📚 Explanation:

1. No Collateral Was Agreed Upon

Mr. A’s loan contract with Mr. B was unsecured—no mortgage or lien on the house.
So the house isn’t considered collateral in this legal relationship.

2. Mr. B Already Sold the House Under a Buyback Agreement

Once the sell-and-buyback (ขายฝาก) was completed, Mr. C gained legal ownership of the house—even if Mr. B still had the right to redeem it.
During this period, Mr. B cannot be treated as the full owner.

Hence, Mr. A cannot enforce a judgment against an asset Mr. B no longer fully owns.

3. Enforcement Requires Secured Collateral

If Mr. A intended to use the house as security, he should have registered a mortgage contract when the loan began.

Without it, the court cannot order the property to be auctioned.

🔍 So What Can Mr. A Do?

He can still file a civil suit against Mr. B to reclaim the loan principal and interest.
But he cannot touch the house already in Mr. C’s name under the sell-and-buyback agreement.

⚖️ Note:

If Mr. A believes that the sell-and-buyback was done fraudulently to hide assets, he can file a separate lawsuit to prove bad faith or asset concealment.

But that’s a much tougher road—and requires strong evidence.

Bottom Line:
If you lend money without securing collateral, don’t assume ownership = recovery.
In Thai property law, the type of contract matters more than intentions.

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