Thông tư 06/2019/TT-BXD sửa đổi Thông tư liên quan đến quản lý sử dụng nhà chung cư

CIRCULAR

AMENDMENTS TO SOME ARTICLES OF CIRCULARS RELATING TO MANAGEMENT AND USE OF APARTMENT BUILDINGS

Pursuant to the Law on Housing dated November 25, 2014;

Pursuant to the Government’s Decree No. 81/2017/ND-CP dated July 17, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Construction;

Pursuant to the Government’s Decree No. 99/2015/ND-CP dated October 20, 2015 on guidelines for the Law on Housing;

At the request of the Director of the Housing and Real Estate Management Agency;

The Minister of Construction hereby promulgates a Circular on amendments to some Articles of Circulars relating to management and use of apartment buildings.

Article 1. Amendments to some Articles of the Regulation on management and use of apartment buildings promulgated together with the Circular No. 02/2016/TT-BXD dated February 15, 2016:

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“1. This Regulation applies to apartment buildings intended for residential purpose and apartment buildings intended for both residential purpose and other purposes (including apartments intended for residential purpose, serviced buildings, commercial buildings, office buildings and other buildings)  according to the Law on Housing No. 65/2014/QH13 (hereinafter referred to as “the Law on Housing”), including:

a) Commercial apartment buildings;

b) Social apartment buildings, except for the apartment buildings specified in Clause 2 of this Article;

c) Relocation apartment buildings;

d) State-owned old apartment buildings, which are renovated and re-built;

dd) Apartment buildings used as official residences.”

2. Clause 2 of Article 4 is amended as follows:

“2. Apartment buildings shall be managed and used on the basis of commitment and agreement between parties in accordance with the law on housing, relevant regulations of law and social ethics”.

3. Clause 8 is added to Article 4 as follows:

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4. Article 5 is amended as follows:

“Article 5. Compiling, transferring and retaining apartment building dossiers

1. Every owner of an apartment building shall compile and retain a housing dossier as prescribed in Articles 76 and 77 of the Law on Housing.

2. Every investor shall prepare an apartment building dossier in accordance with regulations of the law on construction. If the apartment building dossier is no longer available, it is required to compile an as-built dossier for the apartment building in accordance with regulations of law.

3. An apartment building dossier shall be retained and transferred in accordance with the following regulations:

a) The investor shall retain the dossier specified in Clause 2 of this Article; within 20 working days from the date on which the management board of the apartment building or its representative (if the management board is not required) submits a written request for transfer of the apartment building dossier, the investor shall transfer 02 sets of dossier (certified true copies) to the management board. The documents transferred to the management board include:

- As-built drawings (enclosed with a list of drawings), which are prepared in accordance with regulations of the law on construction.

- Manufacturer’s profiles of equipment installed in the building.

- Building operation procedure; building maintenance procedure.

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- Parking lot layout designed by the investor according to the project and design dossier approved by the competent authority, which clearly indicates parking lots intended for apartment building owners and occupants (including shared parking lots, car parking lots) and public parking lots.

b) After receiving the apartment building dossier specified in Point a of this Clause from the investor, the management board of the apartment building shall retain and manage this dossier at the community house or its office (if any) or location decided by the apartment building convention; if the apartment building has to establish an operating unit in accordance with regulations of the Law on Housing, the management board of the apartment building shall provide 01 set of dossier received from the investor to the operating unit, except for the case where the operating unit is the investor.

If the operating unit no longer operates the apartment building, this dossier shall be transferred to the management board.

c) By the deadline mentioned in Point a of this Clause, if the investor fails to transfer the apartment building dossier, the management board of the apartment shall request the People's Committee of the suburban, urban district or provincial-affiliated city where the apartment building is located (hereinafter referred to as “the People’s Committee of the district) in writing to request the investor to transfer the dossier.

Within 05 working days from the date on which the management board of the apartment building sends a written request, the People's Committee of the district shall carry out an inspection, if the investor has not transferred the apartment building dossier as prescribed, the investor shall be requested in writing to transfer the dossier; within 10 working days from the date on which the People’s Committee of the district sends a written request, the investor that fails to transfer the apartment building dossier shall face administrative penalties in accordance with regulations of the law on penalties for administrative violations against regulations on management and use of housing and is compelled to transfer the apartment building dossier  to the management board;

d) If the investor transfers the apartment building dossier as prescribed but the management board does not receive it, within 10 working days from the date on which the apartment building dossier is transferred, the investor shall notify and request the People's Committee of the district where the apartment building is located to receive this dossier. The management board shall take responsibility for the issues that arise from the failure to receive the apartment building dossier as prescribed by law.

4. Before transferring the apartment building dossier, the investor and management board of the apartment building or its representative shall inventory equipment and define a shared area of the apartment building in accordance with regulations of the Law on Housing; the transfer of apartment building dossier and finished project shall be made into a record signed by parties. In case of failure to inventory equipment and define a shared area, the investor and management board shall make a record of current conditions of equipment and management of shared area of the apartment building.”

5. Article 13 is amended as follows:

“Article 13. First apartment building convention

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a) The apartment building convention shall be organized within 12 months from the date on which such apartment building is transferred and put to use and has at least 50% of its apartments transferred to buyers or buyers/tenants (excluding the apartments that are not sold or yet to be sold or leased out under a lease-purchase agreement by the investor); by the aforementioned deadline, if the apartment building has not had at least 50% of apartments transferred, the apartment building convention shall be organized until at least 50% of apartments are transferred;

b) The apartment building convention shall be organized if at least 50% of apartments of each building in a cluster have been transferred to buyers or buyers/tenants (excluding the apartments that are not sold or yet to be sold or leased out under a lease-purchase agreement by the investor) and at least 50% of representatives of owners of apartments of each building have put their apartments into use and agree to add the buildings to the apartment building complex.

2. Conditions for attendances at the first apartment building convention:

a) There must be at least 50% of representatives of owners of transferred apartments at the apartment building convention. If the attendances are not sufficient as prescribed in this Point, within 07 working days from the date on which the date of the apartment building convention is specified in the notice of convention, the investor or representative of the apartment owner shall request the People’s Committee of the commune where the apartment building is located to organize an apartment building convention;

b) Regarding the apartment building complex convention, there must be sufficient number of persons agreeing to add the buildings to the apartment building complex. If the attendances are not sufficient as prescribed in this Point, within 07 working days from the date on which the date of the apartment building convention is specified in the notice of convention, the investor or representative of the apartment owner shall request the People’s Committee of the commune to organize an apartment building convention, except for the case where an apartment building convention is organized at a building in the complex as prescribed in Point a of this Clause.

3. The investor (in the case of multi-owner apartment building) or the owner (in the case of single-owner apartment building) shall make preparations for the convention, notify the date and place and organize an official convention attended by apartment building owners and occupants. The investor or owner may organize a preparatory convention to make necessary preparations for the official apartment building convention. Preparations for the first apartment building convention shall be made as follows:

a) Inspection and determination of status of representatives of apartment owners attending the convention; in the case of authorization, it is required to have a letter of authorization, which contains: full name and phone number (if any) of the authorizing person and authorized person, address of the apartment or another area in the apartment building of the authorizing person, authorization contents related to the apartment building convention, rights and responsibilities of the authorizing party and authorized party, and bears signatures of the authorizing person and authorized person;

b) A draft regulation on apartment building convention;

c) Proposed amendments to regulations on management and use of apartment buildings (if any);

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dd) Regarding the multi-owner apartment building, it is required to make additional preparations, including proposed prices of apartment building operation services, draft plan for maintenance of shared area of the apartment building, proposed operating unit in the cases where the apartment building has to establish a management board but the investor fails to have the managerial function or capability or has managerial function or capability but does not participate in management and authorize another unit to perform management. If the apartment building has to establish a management board, propose an organizational structure of the management board, draft operating regulation and regulation on revenues and expenditures of the management board.

e) Fees for using services at swimming pools, gyms, tennis courts, spas, supermarkets and other services (if any);

g) Other proposals on the management and use of apartment buildings, which need to be discussed at the first apartment building convention.

4. The first apartment building convention shall decide:

a) The regulation on apartment building convention (including first, annual and irregular convention);

b) Regulation on election of apartment building’s management board, name of the management board, number and list of members of the management board, head and deputy head of the management board (if the apartment building has established a management board); plan for provision of professional training in apartment building operation and management to members of the management board;

c) Amendments to regulations on management and use of apartment buildings (if any);

d) Contents specified in Point d Clause 3 of this Article; regarding prices of apartment building management services, they shall be decided by the apartment building convention according to this Regulation and by negotiation with the operating unit;

dd) Fees paid by owners and occupants of apartment buildings during the use thereof;

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5. The People’s Committee of the commune shall organize the first apartment building convention in one of the following cases:

a) The apartment building has been transferred and put to use for more than 12 months and has at least 50% of apartments transferred as prescribed in Point a Clause 1 of this Article but the investor fails to organize an apartment building convention and representatives of owners of transferred apartments have requested the People’s Committee of the commune in writing to organize a convention;

b) The attendances are not sufficient as prescribed in Clause 2 of this Article;

c) The investor is shut down due to dissolution or bankruptcy as prescribed by law.

If the People's Committee of the commune organizes the first apartment building convention, the funding for organization of this convention shall be provided by apartment building owners and occupants.

6. Within 30 working days from the receipt of the written requests from representative of apartment owners or investor as prescribed in Clause 5 of this Article, the People’s Committee of the commune shall organize the first apartment building convention. Results of the first apartment building convention organized by the People’s Committee of the commune shall be applicable to owners and occupants of apartment buildings in the same manner as the first apartment building convention is organized by an investor.”

6. Article 16 is amended as follows:

“Article 16. Attendances and voting at apartment building convention

1. Regarding a single-owner apartment building or apartment building complex, attendances at an apartment building convention comprise representatives of apartment building owners and occupants and representative of the People’s Committee of the commune where the apartment building is located.

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a) If the first apartment building convention is organized, attendances thereat comprise representative of the investor, representative of owners of transferred apartments, representative of the operating unit (if any) and representative of the People’s Committee of the commune;

b) If an irregular apartment building convention or annual apartment building convention is organized, attendances thereat comprise representative of owners of transferred apartments, representative of the investor (if the investor still owns some area in the apartment building), representative of the operating unit (if any) and representative of the People’s Committee of the commune.

3. The right to vote at the apartment building or apartment building complex convention is determined according to the area under sole ownership of the apartment owner or owner of another area in the apartment building. 1 m² of the area under sole ownership is equivalent to 01 vote.

4. The apartment building owner or owner of another area in the apartment building may authorize another owner in such apartment building or occupant of such apartment building to attend the convention and vote at the convention on behalf of the owner.

Regarding state-owned apartments (including unoccupied and occupied ones), the authority representing their owners shall attend the convention and exercise the right to vote. In the cases where apartments are occupied, however, the authority representing their owners authorize occupants to attend the convention, such occupants shall attend the convention and exercise the right to vote with respect to the occupied area.

5. Every decision made at the apartment building or apartment building complex convention shall be approved under the majority rule through a show of hands or a ballot; contents of the convention shall be made into a record, which bears signatures of presiding members and secretary.”

7. Clause 5 of Article 17 is amended as follows:

“5. Members of the apartment building’s management board shall perform the tasks specified in the management board’s operating regulation approved by the apartment building convention.”

8. Clause 7 of Article 17 is amended as follows:

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If the apartment building has an operating unit in accordance with the Law on Housing and this Regulation, the apartment building owners and occupants shall pay the management board's members via this operating unit; the payment shall not be included in the operating unit’s business activities. If the apartment building does not have an operating unit in accordance with the Law on Housing and this Regulation, the management board shall collect the payment and pay each member.”

9. Clause 2 of Article 19 is amended as follows:

“2. Members of the apartment building’s management board are encouraged to join training courses on management and use of apartment buildings organized by the training institutions recognized by the Ministry of Construction.”

10. Clause 2 of Article 22 is amended as follows:

“2. Within 07 working days from the receipt of the sufficient application, the People's Committee of the district shall inspect it and issue a recognition decision or authorize the People's Committee of the commune where the apartment building is located to do so.”

11. Point e is added to Clause 3 of Article 22 as follows:

“e. Replacement of the previous recognition decision (if any).”

12. Clause 4 of Article 22 is amended as follows:

“4. After the management board recognition decision is issued by the People's Committee of the district or People's Committee of the commune, the recognized management board shall open its own account. In the case of multi-owner apartment building, the management board shall open an account to manage fees for maintenance of the shared area in accordance with the Law on Housing and this Regulation and register a seal in accordance with regulations of law on seal registration and management (the management board's name inscribed on the seal must be identical to the recognized management board's name), except for the case where the management has had a seal and opened an account as prescribed by law.”

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“5. The management board of the single-owner apartment building is entitled to operate if it is recognized by the People’s Committee of the district or People’s Committee of the commune. The management board of the multi-owner apartment building is entitled to operate if it registers its seal in accordance with regulations of law and opens accounts in accordance with this Regulation.

Regarding the management board of the multi-owner apartment building that has had a seal and opened an account as prescribed by law and is not required to be renamed, it is required to send a notification enclosed with a certified true copy of the management board recognition decision to the microfinance institution where the management board opens its account to make transactions with such microfinance institution as prescribed.”

14. Point a Clause 2 of Article 24 is amended as follows:

“a) Organizational structure of the management board; relationship between members of the management board, between the management board and the People’s Committee of the commune where the apartment building is located and relevant organizations during the management, use and operation of the apartment building.”

15. Clause 2 of Article 25 is amended as follows:

“2. Regarding a multi-owner apartment building, the following proposals shall be passed if they are approved by at least 75% of total members of the apartment building or apartment building complex management board:

a) Proposal for change of an operating unit;

b) Decision on selection of units carrying out maintenance;

c) Proposal for change of prices of apartment building operation services;

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dd) Other cases decided by the apartment building convention.”

16. Clause 3 of Article 25 is amended as follows:

“3. Regarding the decision on use of fees for maintenance of the shared area of a multi-owner apartment building, voting shall be carried out as follows:

a) If the management board of the apartment building decides to maintain the building’s shared area, such decision must be approved by at least 75% of its total members;

b) If the management board of the apartment building decides to maintain the shared area of the whole apartment building complex, such decision shall be approved by at least 75% of its total members; if the management board of the apartment building decides to maintain one or some of buildings in the complex is maintained, such decision shall be approved by at least 75% of its total numbers who are representatives one or some of such buildings.”

17. Point c Clause 2 of Article 36 is amended as follows:

“c) The deposit account for management of fees for maintenance of apartment buildings intended for residential purposes may be owned by one member or co-owned by multiple members of the management board.

The deposit account for management of fees for maintenance of apartment buildings intended for dual purpose shall be co-owned by at least 03 members of the management board. The apartment building convention shall decide the maximum number of members. The number of such members must include at least 01 representative of the apartment owner, 01 representative of owner of another area (if any), 01 representative of the investor (if any) and several members (if any) decided by the apartment building convention.

Deposit terms and owners of the deposit account for management of fees for maintenance specified in this Clause are prescribed in the management board’s regulations on revenues and expenditures approved by the apartment building convention.”

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“b) For the fee payable by the investor for maintenance of the area intended for offices, services or trade, the investor shall transfer the fee agreed upon with buyers or buyers/tenants under the purchase or lease-purchase agreement as prescribed in Clause 5 Article 108 of the Law on Housing to the management board’s account prescribed in Point a Clause 3 of this Article for the purposes of managing and maintaining the shared area of the whole building; the remaining fees shall be managed and used by the investor as prescribed in Point c Clause 3 of this Article.

The aforementioned maintenance fee may be calculated according to the percentage (%) of the floor area of each dedicated area in an apartment building divided (:) by the gross floor area of such apartment building.”

19. Clause 2 is added to Article 37 as follows:

“2. The management board of the apartment building shall publish information about the opened deposit account for management of maintenance fees at the apartment building convention and shall not change this account, and post the use of such fees (if any) on the apartment building’s bulletin board. Fees for maintenance of the shared area of the apartment building shall be used in accordance with the Law on Housing and this Regulation. Books, invoices and records should be available.”

20. Point k Clause 1 of Article 41 is amended as follows:

“k) The management board shall cooperate with the People’s Committee of the commune where the apartment building is located in exercising their rights and responsibilities for management, use and operation of apartment buildings in accordance with the Law on Housing and this Regulation; abiding by decisions issued by competent authorities and exercising other rights and responsibilities.”

21. Clause 5 is added to Article 45 as follows:

“5. From the effective date of this Circular, if the investor fails to transfer the apartment building dossier, the documents included in the apartment building dossier to be transferred are specified in Point a Clause 3 Article 5 of this Regulation.”

22. Clause 2 of Article 48 is added as follows:

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23. Clause 2 of Article 49 is added as follows:

“2. Cooperate with management boards of local apartment buildings in supervising, inspecting and resolving difficulties that arise from the management and use of apartment buildings or report them to the People’s Committee of the district for consideration.”

24. Clause 4 of Article 49 is added as follows:

“4. Organize and attend apartment building conventions in accordance with this Regulation; decide to recognize management boards of apartment buildings as assigned by the People Committee of the district.”

25. “Ủy ban nhân dân cấp quận” in Point c Clause 4 Article 21, Clause 1 Article 22 and Article 48 is replaced with “Ủy ban nhân dân cấp huyện” and “Ủy ban nhân dân cấp phường” in Clause 5, Clause 6 Article 14, Clause 5 Article 15, Point b Clause 1 Article 39 and Article 49 is replaced with “Ủy ban nhân dân cấp xã”.

Article 2. Amendments to Article 3 of the Circular No. 28/2016/TT-BXD dated December 15, 2016 on amendments to the Circular No.10/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on professional training courses in management of apartment buildings, the Circular No. 11/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on issuance of real estate broker license, guidelines for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor, and establishment and organization of activities of the real estate trading floor, and a number of regulations on management and use of apartment buildings promulgated under the Circular No. 02/2016/TT-BXD dated February 15, 2016 by Ministry of Construction

1. Clause 1 is amended as follows:

“2. Apartment building refers to an independent block of apartments or several blocks of apartments sharing the same podium or civil engineering system built according to the planning and project dossier approved by competent authorities.

3. Apartment building complex includes at least 02 apartment buildings constructed according to the planning and project dossier approved by competent authorities.”

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“c) The investor is shut down due to dissolution or bankruptcy.”

3. Clause 6 is amended as follows:

“1. With regard to a multi-owner apartment building, members of the apartment building’s management board must be the owners who are using apartments in that apartment building. In case an occupant of an apartment or another area in the apartment building is not the owner of that apartment or such another area but is authorized by such owner to attend the apartment building convention, that occupant may be appointed as a member of the management board of that apartment building. Persons who have experience and knowledge in the field of architecture, construction, electrical engineering, electronics engineering, fire safety, finance or law are encouraged to join the apartment building's management board.

“1. With regard to a single-owner apartment building, members of the apartment building’s management board include representatives of apartment owners and occupants in such apartment building.”

4. Clause 7 is amended as follows:

“1. The number of members of the management board of an apartment building or apartment building complex shall be decided by the apartment building convention according to the following principle:

a) The management board of an apartment building comprising an independent block must be comprised of at least 03 members. If an apartment building comprises multiple blocks as prescribed in Clause 2 Article 3 of this Regulation, at least 01 member of the management board shall be assigned to each block;

b) The management board of an apartment building complex must be comprised of at least 06 members.”

5. Clause 8 is amended as follows:

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1. The apartment building operating unit may be the investor or another unit that has satisfied all of function and capacity requirements prescribed in Clause 2 Article 105 of the Law on Housing.

2. The investor shall organize the operation of the apartment building during the period the first apartment building meeting is not yet organized. If the investor fails to satisfy all of function and capacity requirements prescribed in Clause 2 Article 105 of the Law on Housing to manage an apartment building which has elevator system, a qualified unit that meets all of prescribed function and capacity requirements shall be hired to operate the apartment building.

3. After the first apartment building meeting has been organized, the selection of the operating unit shall be governed by the following regulations:

a) If an apartment building has no elevator system, the apartment building convention shall decide to operate the apartment building itself according to the self-governance method or hire a unit that meets all of function and capacity requirements to operate the apartment building;  

b) With respect to an apartment building having the elevator system, if the investor satisfies function and capacity requirements as prescribed in Clause 2 Article 105 of the Law on Housing and wishes to participate in the operation of the apartment building, the management board and the investor shall discuss to enter into service contract for the apartment building operation;

c) With respect to an apartment building having the elevator system, if the investor fails to satisfy function and capacity requirements or satisfies all of function and capacity requirements prescribed in Clause 2 Article 105 of the Law on Housing but does not wish to participate in the operation, or if the investor performs the operation of the apartment building but fails to satisfy requirements specified in the signed service contract, the apartment building convention shall decide to select another qualified unit that meets all of prescribed function and capacity requirements to operate that apartment building.

4. Each apartment building shall have 01 operating unit only to operate its shared area. An apartment building complex may have one operating unit or each apartment building in the apartment building complex may have its own operating unit as decided in the apartment complex convention. If each building in the apartment complex has its own operating unit, the management board of the apartment complex shall reach an agreement with all operating units on the operation of shared technical facilities and civil engineering systems in the apartment building complex.

5. The operating unit may enter service contracts with other service providers to perform the operation work provided the operating unit must be responsible for service quality under terms and conditions specified in the service contract signed with the management board.”

6. Clause 9 is amended as follows:

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1. Any operating unit that wishes to publish its information on the web portal of the Department of Construction of province where its head office is located or the Housing and Real Estate Market Management Agency shall send the information to be published (its name, full name of the legal representative, contact address and phone number) to the Department of Construction of province where its head office is located or the Housing and Real Estate Market Management Agency.

2. If there is any change of the information prescribed in Clause 1 of this Article or when the operating unit is shut down or dissolved or declared bankrupt, the operating unit must notify the Department of Construction of province where its head office is located or the Housing and Real Estate Market Management Agency for modification or removal of published information.

3. If the authority publishing information or the competent authority conducts inspection and discovers that the operating unit has been shut down or dissolved or declared bankrupt or failed to meet prescribed requirements for performing the operation work, the information concerning that operating unit published on the web portal of the authority that published such information shall be removed.” 

7. Clause 4 is annulled.

Article 3. Effect

1. This Circular comes into force from January 01, 2020.

2. Difficulties that arise during the implementation of this Circular should be promptly reported to the Ministry of Construction for consideration./.

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