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THE MINISTRY OF CONSTRUCTION
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 16/2010/TT-BXD
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Hanoi, September 01, 2010
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CIRCULAR
SPECIFYING AND GUIDING SOME
CONTENTS OF THE GOVERNMENT'S DECREE NO. 71/2010/ND-CP OF JUNE 23, 2010,
DETAILING AND GUIDING THE HOUSING LAW
Pursuant
to the Government's Decree No. 17/ 2008/ND-CP of February 4, 2008, defining the
functions, tasks, powers and organizational structure of the Ministry of
Construction;
Pursuant
to the Government's Decree No. 71/2010/ND-CP of June 23, 2010, detailing and
guiding the Housing Law;
The
Ministry of Construction specifies and guides some contents of the Government's
Decree No. 71/2010/ND-CP of June 23, 2010, detailing and guiding the Housing
Law as follows:
Chapter I
GENERAL
PROVISIONS
Article 1. Scope of regulation
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Houses
governed by Decree No. 71/2010/ ND-CP and this Circular include: houses
(villas, detached houses and condominium apartments) which are built for sale,
lease or lease-purchase to meet the market demand under the market mechanism
(including houses in new urban centers and eco-tourism resorts and houses for
multiple-use purposes); houses under state ownership: houses built for sale,
lease or lease-purchase under the state-prescribed mechanism (social houses):
resettlement houses; and detached houses of households and individuals in urban
and rural areas.
Article 2. Subjects of application
This
Circular applies to the following entities that are engaged in house-related
transactions in Vietnam:
1. Domestic
organizations and individuals;
2. Foreign
organizations and individuals and overseas Vietnamese;
3. Other
organizations and individuals engaged in house-related transactions.
Chapter II
HOUSING
DEVELOPMENT
Article 3. Classification of housing development
projects
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1. Projects
on housing area development which aim to synchronously build technical and social
infrastructure systems, houses and other architectural works in project areas.
2. Independent
housing development projects, including:
a/
Grade-II housing projects within housing area development projects defined in
Clause 1 of this Article or projects on building new urban centers or eco
tourism resorts;
b/
Independent housing projects to build only single house or groups of houses in
existing residential quarters or urban centers with available technical infrastructure
systems:
c/
Houses for multiple-use purposes (to be used as houses, offices, trade and
service centers).
Article 4. Sequence of and procedures for appointment
of investors of commercial housing development projects
1.
In case only one investor registers to act as investor of a housing development
project in a land plot planned for commercial housing development:
a/
Within the time limit for disclosure of information on commercial housing
development projects specified in Clause 2. Article 14 of Decree No.
71/2010/ND-CP, the investor shall send (directly or by post) a written
registration for acting as investor of the housing development project to the
provincial-level Construction Department of the locality in which the project
will be implemented.
If,
within the time limit specified in Clause 2, Article 14 of Decree No.
71/2010/ND-CP, only one investor registers to act as investor of the housing
development project, the provincial-level Construction Department shall request
in writing that investor to directly submit 2 sets of dossier proving its
capabilities (comprising copies of papers specified in Article 12 of Decree No.
71/2010/ND-CP. documents proving the investor's experience, the investor's
proposals and the project's estimated total investment):
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In
case the investor is unqualified, the provincial-level Construction Department
shall notify in writing the investor of the reason and propose the
provincial-level People's Committee to consider and appoint another investor to
act as project investor.
c/
The investor that is appointed by the provincial-level People's Committee as
project investor shall formulate and submit a 1:500-scale detailed plan (for
areas for which only 1:2.000-scale plans are available) to a competent agency
for appraisal and approval or propose a competent agency to accept the
project's general site plan, architectural plan and technical infrastructure
solutions (below referred to as the general site plan), for cases in which a
1:500-scale detailed plan is not required by the planning law.
After
the 1:500-scale detailed plan is approved or the general site plan is accepted,
the investor shall carry out procedures for investment approval and organize
the formulation, appraisal and approval of the housing development project
under Article 7 of Decree No. 71/2010/ND-CP, Articles 5 and 6 of this Circular
and the construction law.
2.
In case an investor who has acquired lawful land use rights under the land law
and complying with housing development plans registers to act as project
investor:
a/
The investor shall directly submit to the provincial-level Construction
Department of the locality in which the project will be implemented 2 sets of
dossier proving its capabilities (comprising copies of papers proving lawful
land use rights according to the land law. copies of papers specified in
Article 12 of Decree No. 71/2010/ND-CP, the investor's proposals and the
project's estimated total investment):
b/
After receiving the investor's dossier, the provincial-level Construction
Department shall carry out procedures specified at Point b, Clause 1 of this
Article. In case the investor is unqualified for acting as project investor,
the provincial-level Construction Department shall notify in writing the
investor of the reason;
c/
The investor that is appointed by the provincial-level People's Committee as
investor of the housing development project shall perform tasks specified at
Point c, Clause 1 of this Article.
Article 5. Sequence of and procedures for appraisal
and approval of state-funded housing development projects
1. For
a housing development project capitalized at VND 30 billion or more, exclusive
of land use levy (except the cases specified in Clause 5 of this Article), the
investor shall directly submit to the provincial-level Construction Department
of the locality in which the project will be implemented 2 sets of dossier of
request for appraisal and approval of the housing development project as
specified in Clause 2 of this Article. For a housing development project
capitalized at under VND 30 billion (exclusive of land use levy), if the
provincial-level People's Committee chairperson has authorized a district-level
People's Committee chairperson to approve the project, the investor shall
directly submit the dossier to the district-level house management bureau in
the locality in which the project will be implemented.
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a/
A report, made by the investor according to the form provided in Appendix No. 2
to this Circular to the chairperson of the provincial-level People's Committee
(for projects to be approved by provincial-level People's Committees) or
district-level People's Committee (for projects to be approved by
district-level People's Committees) requesting appraisal and approval of the
housing development project:
b/
The project dossier, made according to Article 6 of Decree No. 71/2010/ND-CP;
c/ A
copy of the decision approving the 1:500-scale detailed plan and 1:500-scale
drawings approved by a competent agency. In case the 1:500-scale detailed plan
is not required, there must be a copy of the general site plan approved by a
competent planning agency under the planning law;
d/ A
copy of the document on the appointment of the project investor, issued by a
competent agency.
3. The
provincial-level Construction Department or the district-level house management
bureau shall examine the dossier. If the dossier is valid, it shall receive the
dossier, issue a receipt and make an appointment to give the reply. If the
dossier is invalid, it shall guide the investor to .supplement and complete the
dossier for once.
After
receiving the dossier, the provincial-level Construction Department or
district-level house management bureau shall appraise the dossier and seek
written comments from natural resources and environment, finance and planning
and investment agencies and other concerned agencies (when necessary). At the
provincial level, the provincial-level Construction Department shall also
consult the provincial-level Architecture and Planning Department (for
provinces and centrally run cities with Architecture and Planning Departments)
and the district-level People's Committee of the locality in which the project
will be implemented. The, time limit for concerned agencies to give their
opinions is 10 days after receiving a written request from the provincial-level
Construction Department or district-level house management bureau. After
obtaining opinions of concerned agencies, die appraising agency shall make a
report according to the form provided in Appendix 3 to this Circular requesting
the chairperson of the People's Committee of the same level to approve the
project.
In
case the provincial-level Construction Department is assigned to act investor
of a housing development project, it shall formulate the project, consult
concerned agencies stated in this Clause and make a report according to the
form provided in Appendix 2 to this Circular requesting the provincial-level
People's Committee chairperson to approve the project.
4.
In pursuance to requirements for housing development projects specified in
Article 5 of Decree No. 71/2010/ND-CP, the report of the provincial-level
Construction Department (at the provincial level) or district-level house
management bureau (at the district level) and opinions of concerned agencies,
the chairperson of the provincial- or district-level People's Committee shall
issue a decision, made according to the form provided in Appendix No.4 to this
Circular, to approve the housing development project. The investor shall
directly come to the dossier-receiving place indicated in the dossier receipt
to receive this decision.
5.
For a housing development project built with central budget funds (except
projects invested under the Prime Minister's decisions'), before submitting the
project to investment-deciding persons for appraisal and approval, the investor
shall submit 2 sets of dossier of request for investment approval to the
provincial-level People's Committee of the locality in which the project will
be implemented for the latter to give written investment approval according to
the sequence and procedures specified in Article 6 of this Circular.
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Based
on the investor's dossier of request for investment approval, the
provincial-level People's Committee shall make a written investment approval
according to the form provided in Appendix 7 to this Circular. After the
provincial-level People's Committee issues the written investment approval, the
investor shall formulate the housing development project for submission lo the
person competent to decide on investment for appraisal and approval according
to Article 7 of Decree No. 71/2010/ ND-CP and this Article.
6. In
case the investor of an approved project wishes to change any of the project
contents specified in Clause 4. Article 7 of Decree No. 71/2010/ND-CP it shall
send a report, enclosed with the approved dossier of the project, to the provincial-level
Construction Department (for projects to be approved by provincial-level People's
Committees) or the district-level house management bureau (for projects to be
approved by district-level People's Committees) requesting for additional
approval of the project contents.
The
provincial-level Construction Department or district-level house management
bureau shall receive, examine and appraise the dossier and propose the
chairperson of the People's Committee of the same level to additionally approve
the project contents. In case of refusal, the dossier-receiving agency shall
issue a written reply clearly stating the reason to the investor.
The
investor of a project built with central budget funds specified in Clause 5 of
this Article that wishes to change the project contents written in the
investment approval document issued by the provincial-level People's Committee
shall request in writing the provincial-level People's Committee to
additionally approve these changes before submitting them to competent agencies
for additional approval.
7. When
appraising and approving a housing development project, the provincial-level People's
Committee and local functional agencies shall base themselves on Decree No. 71/2010/ND-CP.
Resolution No. 33/2008/NQ-CP of December 31. 2008, on the pilot application of
a number of administrative procedures in construction investment to projects on
building new urban centers, residential areas and industrial park
infrastructure (below referred to as Resolution No. 33/2008/NQ-CP), Joint
Circular No. 30/2009/TTLT-BXD-BKH of August 27,2009, of the Ministry of
Construction and the Ministry of Planning and Investment detailing some
contents of Resolution No. 33/ 2008/NQ-CP (below referred to as Circular No.
30/2009/TTLT-BXD-BKH) and this Circular, and refrain from requesting investors
to carry out procedures of application for investment certificates or
procedures of investment registration, for grade-II projects.
8.
The lime limit for competent agencies to appraise and approve a housing
development project or additionally approve the project contents as prescribed
in this Article complies with Article 7 of Decree No. 71/2010/ND-CP. A fee
shall be collected for the appraisal of housing development projects under
current regulations on the fee for appraisal of work construction projects.
Article 6. Sequence of and procedures for investment
approval for housing development projects built with non-state budget funds
1.
The sequence of and procedures for requesting investment approval of housing
development projects (except grade-II projects; using non-stale budget funds to
build less than 2.500 houses (including villas, detached houses and condominium
apartments) are specified as follows:
a/
For cases which do not require a bidding to select a housing development
project investor:
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A
dossier of request for investment approval comprises: the investor's report,
made according to the form provided in Appendix 5 to this Circular; copies of
the following papers: the investor appointment decision, issued by the
provincial-level People's Committee, papers specified in Article 12 of Decree
No. 71/2010/ ND-CP; the decision approving the 1:2,000-scale detailed plan and 1:2,000-scale
drawings approved by competent agencies (for projects in areas without a 1:2.000-scale
plan) or copies of the decision approving the 1:500-scale detailed plan and 1:500-scale
drawings approved by competent agencies (for projects in areas with a 1:2.000-scale
plan); for cases which do not require a 1:500-scale detailed plan, there must
be a copy of the general site plan approved by a competent planning agency;
The
provincial-level Construction Department or district-level house management
bureau shall examine the dossier. If the dossier is valid, it shall receive the
dossier, issue a receipt and make an appointment to give the reply. If the
dossier is invalid, it shall guide the investor to supplement and complete the
dossier for once.
After
receiving the dossier, the provincial-level Construction Department or
district-level house management bureau shall appraise the dossier and seek
written comments from natural resources and environment; finance; and planning
and investment agencies and other concerned agencies (when necessary) within
the time limit prescribed in Clause 3 of this Article. At the provincial level,
the provincial-level Construction Department shall also consult the
district-level People's Committee of the locality in which the project will be
implemented and the provincial-level Architecture and Planning Department (for
provinces and centrally run cities with Architecture and Planning Department).
After receiving opinions of concerned agencies, the appraising agency shall
make a report according to the form provided in Appendix 3 to this Circular,
requesting the chairperson of the People's Committee of the same level to
approve the project.
- On
the basis of the report of the provincial-level Construction Department or
district-level house management bureau, opinions of concerned agencies and
Point b. Clause 2, Article 71/2010/ND-CP. the provincial- or district-level People's
Committee shall issue an investment approval document according to the form provided
in Appendix 7 to this Circular. The investor shall directly come to the
dossier- receiving place indicated in the dossier receipt to receive this
investment approval document.
In addition
to the contents specified at Point b, Clause 2, Article 7 of Decree No.
71/2010/ ND-CP. the investment approval document must clearly state the local
administration's responsibilities for investing in the building of social
infrastructure facilities (public facilities) and the deadline for the
completion of the building of these facilities. Past this deadline, should the
local administration still fail to invest in the building of these social
infrastructure facilities, the investor may invest in building these facilities
according to approved purposes and have investment costs subtracted from its
financial obligations payable to the State or the investor may transform these
public facilities into non-public ones under investors" ownership;
- After
obtaining the written investment approval issued by a competent state agency,
the investor shall elaborate and submit a 1 ;500-scale detailed plan (for
projects in areas for which only a 1:2,000-scale plan is available) to a
competent agency for appraisal and approval and then formulate, appraise and
approve the housing development project according to regulations. For projects
in areas for which a 1:500-scale detailed plan has been approved or the general
site plan has been accepted by a competent agency (for cases which do not
require the 1:500-scaie detailed plan), the investor shall formulate, appraise
and approve the housing development project according to regulations.
b/
In case a bidding for selection of investors of housing development projects is
required:
- For
a project to build between 500 and under 2.500 houses, the provincial-level
People's Committee shall organize a bidding to select the project's investor
and clearly state investment approval contents in the decision on selection of
the bid-winning investor which replaces the investment approval document.
- For
a project to build less than 500 houses, before issuing bidding dossiers, the
provincial-level People's Committee shall direct the provincial-level
Construction Department to consult in writing the district-level People's
Committee of the locality in which the project will be implemented according to
Point a. Clause 11, Article 14 of Decree No. 71/2010/ND-CP. A dossier sent to
the district-level People's Committee for investment approval comprises: a
written request clearly stating contents specified at Point b, Clause 2,
Article 7 of Decree No. 71/2010/ND-CP; a copy of the decision approving the 1:2.000-scale
plan and 1:2.000-scale drawings approved by competent agencies.
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- The
selected investor of a housing development project shall elaborate and submit a
1:500-scale detailed plan to a competent agency for appraisal and approval and
then, formulate, appraise and approve the housing development project according
to regulations. For cases which do not require a 1:500-scale plan, there must
be the general site plan approved by a competent planning agency according to
the planning law.
2.
The sequence and procedures of application for investment approval for a housing
development project (regardless of investment capital sources and occupied land
areas, including housing projects in new urban centers) to build 2,500 houses
or more (including villas, detached houses and condominium apartments) comply
with the following provisions:
a/
For cases which do not require a bidding to select the project investor (except
for cases in which investors are selected under the Prime Minister's decisions
specified in Clause 5, Article 73 of Decree No. 71/2010/ND-CP):
- The
investor shall submit 2 sets of dossier directly to the provincial-level
People's Committee for consideration and submission to the Prime Minister for
investment approval of this project.
A
dossier set submitted to the provincial-level People's Committee comprises: the
investor's report, made according to the form provided in Appendix 8 to this
Circular: copies of papers (the investor recognition decision issued by a
competent agency: papers specified in Article 12 of Decree No. 71/2010/ND-CP:
the decision approving the 1:2.000-scale plan and 1:2,000-scale drawings
approved by a competent agency):
- Based
on the investor's dossier, the provincial-level People's Committee shall examine
and consult in writing concerned ministries according to Clause 3, Article 7 of
Decree No. 71/2010/ND-CP;
- On
the basis of concerned ministries' opinions, the provincial-level People's
Committee shall send to the Prime Minister 2 sets of dossier (comprising the
provincial-level People's Committee's report, made according to the form
provided in Appendix No. 9 to this Circular, and papers specified in Clause 3,
Article 7 of Decree No. 71/2010/ND-CP) for the latter to consider and approve
investment in this housing development project;
- After
obtaining the Prime Minister's investment approval, the provincial-level
People's Committee shall issue a notice (enclosed with the Prime Minister's
investment approval document) for the investor to elaborate and submit a 1
;500-scale detailed plan to a competent agency for appraisal and approval and
then formulate a housing development project for submission to competent
agencies for appraisal and approval (for state-funded projects) or organize the
appraisal and approval of the project (for projects built with non-state budget
funds).
b/
For cases which require a bidding to select the project investor:
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- Alter
obtaining the Prime Minister's investment approval, the provincial-level People's
Committee shall direct the provincial-level Construction Department to issue a
bidding dossier and organize a bidding according to regulations. The procedures
and mode of bidding to select housing development project investors comply with
those applicable to bidding to select investors of other land-occupying
projects;
-
The selected investor of a housing development project shall elaborate and
submit a 1:500-scale detailed plan to a competent agency for appraisal and
approval and then formulate the housing development project for submission to a
competent agency for appraisal and approval (for state-funded projects) or
organize the formulation, appraisal and approval of the project (for projects
built with non-state budget funds).
3.
The investor of an approved housing development project that wishes to change
any of the project contents specified in Clause 4, Article 7 of Decree No.
71/2010/ND-CP shall send a report, enclosed with the approved project dossier,
to the agency competent to approve investment requesting additional approval.
For a project to build 2,500 houses or more, the investor shall send a report,
enclosed with the approved project dossier, to the provincial-level People's
Committee for consideration and submission of these changes to the Prime
Minister for additional approval.
A
grade-II investor that wishes to change the contents of a housing development
project staled in the investment approval document granted by a competent
agency to a grade-I investor shall request in writing the grade-1 investor to
make a report to a competent agency for additional approval of the project
contents. Past 30 days after receiving a written request from the grade-II
investor, should the grade-I investor fail to request in writing competent
agencies to give additional approval, the grade-II investor may directly
request competent agencies to additionally approve the project contents. After
receiving the grade-II investor's report, competent agencies shall appraise and
issue an additional approval document. If refusing to give additional approval,
it shall issue a written reply clearly stating the reason to the grade-II
investor.
In
case competent agencies agree to give additional approval, the grade-II
investor shall send a notice, enclosed with a copy of the additional approval
document, to the grade-1 investor. In this case, any change in the project
contents must be in line with the approved detailed plan,
4. The
time limit for competent agencies to carry out procedures for investment
approval or additional approval of the content of a housing development project
prescribed in this Article complies with Article 7 of Decree No. 71/2010/
ND-CP.
5. Two
dossier sets shall be submitted by the investor of a housing development
project to a competent agency for appraisal and subsequent submission for
approval or for investment approval under Article 5 or b of this Circular. In
case the appraising agency needs to send the project dossier to concerned
agencies for opinion, it shall request the investor to make more dossier sets.
6. When
giving investment approval of a housing development project, the
provincial-level People's Committee and local functional agencies must base
themselves on Decree No, 71/2OI0/ND-CP. Resolution No. 33/2008/NQ-CP. Circular
No. 30/2009.nTLT-BXD-BKH and this Circular and refrain from requesting the investor
to carry out procedures of application for investment certificates, for
domestic projects, or investment registration procedures, for grade-II projects
of domestic investors.
7.
Provincial-level Construction Departments shall build up databases for
summarizing, making statistics of and monitoring housing development projects
and projects on new urban centers and eco-tourism resorts involving the
building of houses in their localities; the number and types of houses built
under these projects: the quantity and types of houses to be divided under
capital contribution contracts and subjects eligible for house division as
prescribed in Article 8 of this Circular.
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1.
Investors {grade-I and grade-II investors) shall implement housing development
projects under Article 8 of Decree No. 71/2010/ND-CP and invest in building
houses in strict accordance with the approved projects' contents and schedule,
investment approval documents issued by competent state agencies and relevant
laws.
2-
The investor of a housing development project assigned to build social houses
under its commercial housing development projector new urban center project
shall complete the building of social houses before completing investment in
the building of commercial houses in the same areas and sites.
3.
The requirement that investors may not transfer land use rights by selling
grounds before building houses in Clause 5. Article 16 of Decree No.
71/2010/ND-CP is applicable to housing development projects and new urban
center or eco-tourism resort projects in cities and towns (determined based on
their administrative boundaries, regardless of urban or rural areas) or new
urban centers planned for development into cities or towns. In other areas,
investors may transfer land use rights by selling grounds but they shall
complete corresponding technical infrastructure systems before signing land-use
right transfer contracts.
4.
After completing the building of houses under projects, investors shall perform
the tasks specified in Articles 10 and 11 of Decree No. 71/2010/ND-CP. In
addition, they shall send reports on the implementation of the projects to the
provincial-level Construction Departments of the localities in which projects
are implemented for monitoring and inspection.
Article 8. Bund raising for investment in commercial
houses
1. The
investor of a housing development project (including projects on building new
urban centers, eco-tourism resorts or houses for multiple-use purposes) that
wishes to raise funds for building technical infrastructure works in land areas
planned for building houses and for building houses under its project may only
raise capital by the modes and under the conditions prescribed in Article 9 of
Decree No. 71/2010/ ND-CP.
2. In
case of raising capital by borrowing loans from credit institutions or
investment funds operating in Vietnam, the time of signing loan contracts shall
be agreed upon by involved parties according to the banking law, the law on
credit institutions and other relevant regulations.
3. In
case of raising capital by issuing bonds, the time, order and procedures for
issuing bonds comply with the enterprise and securities laws.
4. The
condition on completion of ground clearance specified at Point a. Clause 3.
Article 9 of Decree No. 71/2010/ND-CP means that grade-I investors have
completed the ground clearance for land areas to be transferred to grade-II
investors (calculated based on investment phases or implementation schedules of
component projects).
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In
case of dividing product houses to capital contributors, the investor may only
divide not through a real estate trading floor at most 20% of the projects
total number of houses to all capital contributors by different modes of
capital raising (the investor may divide houses being villas, detached houses
or condominium apartments or divide houses of one or two of these types), but
the capital contribution contracts must clearly state the quantity, types,
areas and locations of houses to be divided to capital contributors. Investors
shall sell, lease or lease-purchase the remaining commercial houses through a
real estate trading floor when the conditions prescribed at Points e and f.
Clause 3, Article 9 of Decree No. 71/2010/ND-CP are fully met.
From
the effective date of Decree No. 71/2010. in each province or centrally run
city, each household or individual may contribute capital for division of
product houses (under Point c. Clause I, Article 9 of Decree No. 71/2010/ND-CP)
for once and be divided only one house (villa, detached house or condominium
apartment); in other cases of capital contribution, such household or
individual may receive distributed profits in cash or stocks. An organization
that contributes capital to receive houses for subsequent division to other
households or individuals shall send a list of organizations and individuals
entitled to house division to the project investor for submission to the
provincial-level Construction Department for certification under Clause 8 of
this Article.
Pending
the signing of house sale and purchase contracts with investors, entities
entitled to house division may not transfer the right to receive houses to
other organizations and individuals, in case a person who is entitled to house
division dies, he/she heir may enjoy this right. After signing a house sale and
purchase contract with the investor under Clause 2, Article 60 of Decree No. 71/2010/ND-CP.
a person entitled to house division that transfers this contract or sells the
to-be-divided house to another person shall comply with Articles 18 and 20 of
this Circular.
6.
The number of 20% of houses of each project specified in Clause 5 of this
Article shall be calculated based on the total number of commercial houses of
each housing development project, new urban center or eco-tourism resort
project (grade-I projects) or independent housing development project (other
than grade-II housing projects) as follows:
a/ In
case the number of 20% of houses under a project is a decimal number, the
investor may round this number for division (the decimal of 0.5 or more will be
rounded to 1 while that of under 0.5 will not be rounded). For example, if the
total number of houses under a project is 219. the number of 20% of houses
eligible for division will be 43.8. In this case, the investor may divide at
most 44 houses. For a project with a total number of houses is 212 of which 20%
is equal to 42.4. the investor may divide at most 42 houses.
b/
In case an investor builds houses according to the implementation schedule of
the project (only one condominium or house complex is built in advance), the
investor may only sign capital contribution contracts involving the division of
product houses for at most 20% of commercial houses in this condominium or
house complex. The investor may not sign capital contribution contracts for
prior division of 20% of houses in condominiums or house complexes not yet
built.
c/
In case a grade I investor signs contracts to transfer land use rights with
technical infrastructure to grade II investors for building houses. grade-II
investors may sign capital contribution contracts involving the division of
houses as products for at most 20% of commercial houses built by themselves on
the land area transferred from the grade-I investor as prescribed in the
following examples:
-
Example 1: Enterprise A is the investor of a housing development project to
build 1,000 houses (including 800 commercial houses and 200 social houses).
According to regulations, enterprise A is only permitted to sign capital
contribution contracts involving the division of 160 product houses at most
(20% of 800 commercial houses).
+
In case enterprise A only deals in infrastructure (after completing investment
in building the technical infrastructure system, it shall transfer the whole
land area to grade-II investors), each grade-II investor may sign capital
contribution contracts involving the division of product houses not exceeding
20% of commercial houses built by itself on the land area transferred from the
grade-I investor (in case enterprise A transfers land to 4 grade-II investors.
namely B. C. D and E, for building 200 commercial houses each, each grade II
investor may sign capita! contribution contracts involving the division of 40
product houses at most (equal to 20% of 200 commercial houses) and the total
number of houses to be divided under capital contribution contracts by 4
grade-II investors is 160 (equal to 20% of 800 commercial houses);
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+
In case enterprise A signs capital contribution contracts of a total value
exceeding the value of houses eligible to be divided (presumably, the total
value of 160 houses eligible to be divided is VND 160 billion, but enterprise A
raises VND 200 billion by the mode of capital contribution, investment
cooperation or business cooperation; in this case, it may only divide 160
product houses at most (equal to VND 160 billion). For the remaining VND 40
billion received as contributed capital, investment cooperation and business
cooperation capital, enterprise A shall share profits (in cash or stocks) with
capital contributors.
-
Example 2: Enterprise A is the investor of an independent housing development
project (other than grade-IT project) with 200 houses to be built under the
approved plan and project dossier. In this case, enterprise A may sign capital
contribution contracts to divide 40 houses at most to capital contributors.
7.
Upon the effective date of Decree 71/2010/ ND-CP, should a grade-I investor
still fail to sell out or lease all houses under the project according to the
law on real estate trading, it may sign capital contribution contracts
involving the division of product houses under Article 9 of Decree No.
71/2010/ND-CP, but the total number of houses to be divided to capital
contributors shall be calculated based on the number of houses not yet sold or
leased through a real estate trading floor under the guidance given in the following
example:
Example:
Enterprise A is the investor of a housing development project with a total of
800 houses to be built under the approved plan. Enterprise A has built and
signed contracts to sell 400 houses through a real estate trading floor while
the remaining 400 houses are under construction and no sale and purchase
contract has been signed. In this case, enterprise A may sign capital
contribution contracts involving the division of 80 product houses at most
(equal to 20% of 400 commercial houses not yet sold).
8.
For cases of raising capital under house division agreements specified in
Clause 5 of this Article, investors shall propose provincial-level Construction
Departments to certify the division of houses according to the following
regulations:
a/
After signing contracts with capital contributors, an investor shall submit to
the provincial-level Construction Department of the locality in which the
project will be implemented a written request for certification, enclosed with
a list of individuals having signed capital contribution contracts involving
the division of product houses and the approved project and plan, clearly
indicating the total number of houses of the project.
b/
On the basis of the investor's request, the provincial-level Construction
Department shall base itself on Articles 9 and 60 of Decree No. 71/2010/ND-CP.
this Article and the number of houses indicated in the approved plan and
project dossier to certify the list of persons entitled to house division. Such
a written certification shall be made according to the form provided in Appendix
10 to this Circular;
c/
The time limit for the provincial-level Construction Department to certify the
list of persons entitled to house division is 20 working days after receiving
the investor's written request. In case the provincial-level Construction
Department detects that the number of houses to be divided to persons on the
list submitted by the investor for certification exceeds 20% of the total
number of houses according to regulations or the list contains individuals or
households that have been previously certified (counting from the effective
date of Decree No. 71/2010/ND-CP). it shall, within 7 working days after
receiving the investor's request, ask in writing the investor to re-make the
list of persons entitled to house division. The time limit for the investor to
re-make the list of persons entitled to house division shall not be counted
into the time limit for the provincial-level Construction Department to give
certification specified at this Point.
The
provincial-level Construction Department's certification of house division
specified in this Clause shall be used as the certification of trading via a
real estate trading floor and serve as a legal ground for competent agencies to
grant house ownership right certificates to purchasers.
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All
cases of dividing houses in excess of the permitted ratio of 20%, giving
certification for an individual or household to receive more than one divided
house in a province or centrally run city or allowing the transfer of the right
to house division without, satisfying the conditions prescribed in Article 60
of Decree No. 71/2010/ ND-CP will not be recognized by law and violators shall
be handled according to law.
e/
Provincial-level Construction Departments shall open information boxes on their
websites for disclosure of information on names and addresses of entities
entitled to house division and types, locations and number of houses to be
divided within 3 working days after giving certification. In June and December
every year or upon receiving irregular requests, they shall summarize and
report to the Ministry of Construction on the number of entities entitled to
house division and the number and types of divided houses in their localities.
9.
Cases in which land use rights have not yet transferred from a grade-I investor
to grade-II investors under the land law specified at Point a, Clause 3.
Article 9 of Decree No. 71/2010/ ND-CP are defined as cases in which grade-II
investors have not yet received land from the grade-I investor (land transfer
records are unavailable). In these cases. grade-II investors' signing of
capital contribution contracts involving the division of product houses must be
approved in writing by the grade-I investor.
Grade-II
investors, when submitting written requests for certification of the list of
subjects entitled to division of product houses to provincial-level
Construction Departments under Clause 8 and notifying the raising of capital
under Clause I) of this Article shall enclose a record on the transfer of land
from the grade-I investor; in case the land transfer record is not yet
available, they shall send a copy of the grade-I investor's written consent of
the signing of capital contribution contracts involving the division of product
houses.
10.
The requirement on completed construction of foundations specified at Point e, Clause
3, Article 9 of Decree No. 71/2010/ND- CP is applicable to all types of houses
(villas, detached houses and condominium apartments, including houses for
multiple-use purposes). An investor that applies the method of top-down construction
(building upper floors before building basement slabs or the lowest ground level)
according to the approved design plan may sell houses only after completing the
construction of the first floor area and obtain a record on the takeover test
of the construction of this floor area.
Investors
shall send copies of the record on the takeover lest of the basement
construction (certified with the investor's seal) to real estate trading floors
for use as a basis for the sale of houses according to law.
11.
In case of raising capital by the modes specified at Points b, c and e. Clause
I. Article 9 of Decree No. 71/2010/ND-CP, at least 15 days before signing
capital raising contracts, investors shall send notices clearly stating the
contents specified at Point f. Clause 3r Article 9 of Decree No. 71/2010/ND-CP
to provincial-level Construction Departments for information and supervision
(it is not required to obtain the provincial-level Construction Department's written
approval before signing contracts). Provincial-level Construction Departments
shall request in writing investors detected to raise capital in contravention
of Article 9 of Decree No. 71/2010/ND-CP to cease their capital raising, cancel
signed capital raising contracts and comply with regulations.
12.
Capital contribution contracts, investment cooperation contracts or business
cooperation contracts specified in Article 9 of Decree No. 71/2010/ND-CP must
contain the following details: contracting parties, mode of capital raising;
the amount of capital to be raised; capital raising terms; mode of profit
sharing (in cash or stocks) or division of product houses, types, location and
areas of to-be-divided houses; deadline for capital refund or house handover;
rights and obligations of involved parties; settlement of disputes and other
agreements.
13.
Investors (grade-I and grade-II) may only sign capital raising contracts by the
modes and under the conditions prescribed in Article 9 of Decree No. 71/2010/ND-CP
Capital raising contracts involving the division of product houses which are
signed in contravention of Article 9 of Decree No. 71 /20I0/ND-CP and this
Decree will have no legal validity and not be recognized by law and violators
shall be handed according to current law.
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HOUSE
OWNERSHIP MANAGEMENT. USE AND TRANSACTIONS
Section 1. HOUSE OWNERSHIP, MAN A GKMENT A ND USE
Article 9. Recognition of house ownership
1.
House ownership for organizations and individuals eligible to own houses in Vietnam
shall be recognized under the Government's Decree No. 88/2009/ND-CP of October
19. 2009. on grant of land use right or house and land-attached asset ownership
certificates. Decree No.71/2010/ND-CP. documents guiding Decree No.
88/2009/ND-CP and this Circular.
2.
When applying for certificates of ownership of detached houses of households
and individuals defined in Article 43 of Decree No. 71/2010/ND-CP in addition
to the papers evidencing the lawful establishment of houses under regulations
on grant of land use right or house and land-attached asset ownership
certificates, these households and individuals shall also produce papers below:
a/
For detached houses specified in Clause 2, Article 43 of Decree No. 71/2010/ND-CP
a copy of the construction license (in case this license is required for such
house) and a copy of the force-bearing safety certificate granted by a
functional unit under the construction law;
b/
In case of application for an ownership certificate for each apartment within a
detached house defined in Clause 3, Article 43 of Decree No. 71/2010/ND-CP a
copy of the construction license (in case this license is required for such
house), enclosed with a drawing of each floor's plan and a drawing of each
apartment's plan, surveyed and made by the house owner or an organization with
surveying and drawing function. In case drawings arc made by the house owner
himself/herself, the certificate-granting agency shall examine the minimum area
of each apartment, area under common use and area under private use under
Clause 3. Article 43 of Decree No. 71/2010/ND-CP
Article 10. Management and use of official-duty
houses
1.
Official-duty houses are state-owned houses to be leased to entities defined in
the Housing Law and Decree No, 71/2010/ND-CP and closely managed. Units
assigned to manage official-duty houses shall manage such houses and collect
house rents under the Housing Law and Decree No. 71/2010/ND-CP
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3. Persons
competent to decide on investment in official-duty house development projects
shall decide on the selection of units to manage the operation of official-duty
houses.
4. Official-duty
house rent rates shall be determined under Clause 1, Article 26 of Decree No.
71/2010/ND-CP. Pursuant to the guidance on methods of determining official-duty
house rent rates, provincial-level Construction Departments shall formulate and
submit to provincial-level People's Committees for promulgation official-duty
house rent tariffs for uniform application in localities. Based on such rent
tariffs, units assigned to manage the operation of official-duty houses shall
submit rent rates for official-duty houses under their management to investment
deciders for approval.
5. Official-duty
houses shall be managed and used under separate guidance of the Ministry of
Construction.
Article 11. Management and use of social houses built
with non-state budget funds
1.
Social houses built with non-state budget funds may be sold, leased or
lease-purchased under Decree No. 71/2010/ND-CP and legal documents concerning
development of houses for students of training institutions, industrial-park
workers and low-income earners in urban areas.
The
selection of entities eligible to purchase, rent or rent-purchase social houses
and the operation management of social houses specified in this Article comply
with the Construction Ministry's Circular No. 36/2009/TT-BXD of November 16,
2009, guiding the sale, lease, lease-purchase and use management of houses for
low-income earners in urban areas.
2. Investors
of social house development projects defined in this Article may use model and
typical designs of social houses under the Construction Ministry's Circular No.
14/2009/ TT-BXD of June 30. 2009. on typical and model designs of houses for
students, workers and low-income earners.
3. Methods
of determining selling prices and rent or rent-purchase rates for social houses
comply with the Construction Ministry's Circular No. 15/2009/TT-BXD of June 30.
2009, guiding methods of determining rent rates for student and worker houses
and selling prices and rent rates for houses for low-income earners.
4. Pursuant
to the Construction Ministry's guidance on pricing methods, investors shall
formulate selling prices and rent or rent-purchase rates for social houses and
submit them to provincial-level People's Committees of localities in which exist
projects for appraisal. Within 30 days after receiving investors' request for
appraisal, provincial-level People's Committees shall conduct appraisal and
send appraisal documents to investors, indicating contents agreed and those to
be modified.
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Past
30 days, if provincial-level People's Committees fail to issue appraisal
documents, investors may set selling prices and rent or rent-purchase rates for
social houses built by them and shall send to provincial-level People's
Committees one price table they have issued.
From
the effective date of this Circular, provincial-level People's Committees shall
only appraise (but not approve) and send to investors appraisal documents on
rent rates for houses for students, workers or low-income earners and selling
prices and rent or rent-purchase rates for houses for low-income earners under
investment projects built with non-state budget funds.
5.
When conducting appraisal for providing loans for the construction of social
houses, credit institutions need to base themselves on project dossiers only.
In case there are no appraisal opinions of provincial-level People's Committees
on selling prices and rent or rent-purchase rates for social houses, credit
institutions shall base themselves on selling prices and rent or rent-purchase
rates for social houses formulated by investors based on the Construction
Ministry-guided pricing methods.
Article 12. Management and use of condominiums and
urban villas
1. Condominiums
shall be managed and used under the Housing Law, Decree No. 71/2010/ ND-CP and
the Construction Ministry's Decision No. 08/2008/QD-BXD of May 28, 2008,
promulgating the Regulation on use management of condominiums.
2. Urban
villas shall be managed and used under Decree No. 71/2010/ND-CP and the
Construction Ministry's Circular No. 38/2009/TT-BXD of December 8, 2009,
guiding use management of urban villas.
Article 13. Construction and management of detached
houses of households and individuals
1. When
building detached houses, households and individuals shall comply with Articles
41 thru 44 of Decree No. 71/2010/ND-CP and the construction law.
2. For
a household or a detached that builds a detached house while satisfying the
requirements specified in Clause 3, Article 43 of Decree No. 71/2010/ND-CP and
sells each separate apartment, a competent state agency shall consider and
grant a land use right or house and land-attached asset ownership certificate
for each apartment within that house. After selling apartments and carrying out
procedures for the grant of ownership certificates to apartment purchasers, the
right to use land (including premises) of the entire building is the common use
right of all apartment owners under regulations on the right to use land of a
multi-owner condominium.
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A
contract on apartment purchase and sale must, in addition to the requirements
set in Article 63 of Decree No. 71/2010/ND-CP and Article 21 of this Circular,
also indicate the following: area under private ownership and area under common
ownership of the apartment owners; the apartment's floor area (by the method
specified in Clause 2, Article 21 of this Circular); the building's land area
used, including the area of premises (if any), under common use of the
apartment purchasers; responsibility to pay relevant expenses during the use of
the house (if any); service charges must not exceed the ceiling prices set by
the provincial-level People's Committee, unless otherwise agreed by the
parties. The house seller shall provide warranty for apartments under Article
46 of Decree No. 71/2010/ND-CP.
4.
Houses under common ownership of different owners and houses used by different
households and individuals in urban areas shall be managed under the
Construction Ministry-promulgated Regulation on management and use of
condominiums in urban areas.
Section 2. MANAGEMENT AND USE OF SOCIAL HOUSES BUILT
WITH STATE BUDGET FUNDS
Article 14. Approval of persons eligible to rent
social houses built with state budget funds
1. To
be eligible to rent social houses built with slate budget funds, persons must
have applications and written certification made according to the forms
provided in Appendices01, 01a and 01b to the Construction Ministry's Circular
No. 36/2009/TT-BXD of November 16, 2009, guiding the sale, lease,
lease-purchase and use management of houses for low-income earners in urban
areas, and submit them directly to provincial-level Construction Departments of
localities in which exist social houses. For those who have returned
official-duty houses under Point a. Clause 6, Article 30 of Decree No.
71/2010/ND-CP. only written certification of such return, made by the
official-duty house-managing agency, is required.
2. Upon
receiving social-house rent applications and certifications specified in Clause
1 of this Article, provincial-level Construction Departments shall examine them
against the provisions on eligible persons and conditions for rent of social
houses in Article 37 and Clause 1, Article 38 of Decree No. 71/2010/ND-CP, and the
actual funds of local houses before submitting them to provincial-level
People's Committees for solution.
3. The
criteria for approval of persons eligible to rent social houses are guided in
Article 5 of the Construction Ministry's Circular No. 36/ 2009/TT-BXD of
November 16, 2009, guiding the sale, lease, lease-purchase and use management
of houses for low-income earners in urban areas.
4. Persons
eligible to purchase, rent or rent-purchase social houses must have their
monthly average incomes not liable to personal income tax on their regular
incomes under the law on persona] income tax.
The
criteria specified in this Clause are also applicable to those eligible to
purchase, rent or rent-purchase social houses or houses for low-income earners
built with non-state budget funds, and replace the provisions on income
criteria specified in Clause 4, Article 4 of the Construction Ministry's
Circular No. 36/2009/ TT-BXD of November 16, 2009, guiding the sale, lease,
lease-purchase and use management of houses of low-income earners in urban
areas.
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Article 15. Constituents of rent rates for social
houses built with state budget funds
Constituents
of rent rates for social houses built with state budget funds include:
1.
Expense for house construction investment which includes all lawful costs of
building houses and putting into operation and use under current regulations on
management of work construction investment projects, for which the investment
capital finalization was approved by a competent authority at the time of
handover of houses for operation and use:
2. Expense
for house operation management:
a/
Salaries and salary-based allowances, social and health insurance premiums and
other deductions from salary funds for the apparatus of the house
operation-managing unit.
The
salary expense shall be determined on the basis of the payroll of cadres and
employees as well as salaries, salary-based allowances and other deductions
from salary funds under current state regulations;
b/
Expense for services within the house complex, such as security, sanitation,
garbage collection, tending of flower gardens and pot plants, insect killing
and other services (if any), shall be determined on the basis of the volume of
jobs to be performed and payment level agreed in the service contract;
c/
Expense for stationery, office furniture, tools and cheap and perishable items
of the house operation-managing unit;
d/
Expense for daily-life electricity and water for the working office of the
house operation-managing unit; electricity for public lighting within the house
complex; and operation of lifts (if any):
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3. Expense
for house maintenance, which includes all expenses for renovation maintenance,
small repair, medium repair, overhaul and unexpected repair aiming to maintain
the quality of the house. Investors shall calculate and determine the expense
for house maintenance on the basis of the structure of social house rent rates
specified in Article 16 of this Circular.
Funds
for house maintenance shall be deducted from house rents (according to the rent
rate structure specified in Article 16 of this Circular) and deposited in a
commercial bank's separate account with a demand interest rate. These funds
shall be managed by the house operation-managing unit and used for house
maintenance under regulations on maintenance of construction works.
Article 16. Method of determining rent rates for
social houses built with state budget funds
1. Formula:
Of
which:
is the rent rate
for using 1 m2 of an apartment in a month (VND/nr/month).
is the project's
construction investment expense allocated annually on the principle of capital
preservation (VND/year).
Formula
for determination of 
:
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+ 
is the project's
total construction investment expense at the time of handover of (he house for
operation and use (based on the approved investment capital finalization value)
(VND).
+ 
is the interest
rate for investment capital preservation (calculated on an annual basis.)
decided by a person with investment-deciding competence (%/year).
+ 
is the number of
years of capital retrieval, depending on specific conditions of each project
and person with investment-deciding competence, which must be at least 20.
- 
is the annual
expense for operation management (VND/year).
is the annual
average expense for house maintenance (VND/year).
- 
. is revenue from
the provision of services within the house complex in a year, such as
car-keeping and canteen services, and revenues (if any) from sports facilities
(VND/year).
- 
is the total use
area of leased apartments of the project (m2).
- 
is the story-based
allocation coefficient on the principle of capital preservation. For example,
for a 5-story condominium, allocation coefficients are as follows: 
= 1.2; 
= 1.1; 
=1; 
= 0.9; 
= 0.8.
- L
is the project's location coefficient, which is determined based on the project's
convenient location and 
1.
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This
Article's provisions on coefficient K replace relevant provisions in Articles
5, 6 and 7 of the Construction Ministry's Circular No. 15/ 2009/TT-BXD of June
30. 2009. and Article 4 of the Construction Ministry's Circular No. 17/
2009/TT-BXD of June 30. 2009.
2.
Under the guidance on the constituents of social house rent rates guided in
Article 15 of this Circular and the method of determining social house rent
rates specified in this Article, provincial-level Construction Departments
shall elaborate and submit rent rates for social houses built with state budget
funds to provincial-level People's Committees for promulgation for uniform
application in localities.
Particularly
for student houses built with state budget funds, their rent rates shall be
determined under the Construction Ministry's Circular No. 17/2009/TT-BXD of
June 30. 2009, on the method of determining rent rates for student houses built
with state budget funds.
Article 17. Management and use of social houses built
with state budget funds
1. The
State will build social houses for lease under Decree No. 71/20I0/ND-CP and
this Circular.
2. The
operation management of social houses built with state budget funds must adhere
to the following principles:
a/
Hiring units with house operation-managing function to manage the operation of
social houses:
b/ Units
assigned to manage the operation of social houses shall closely manage these
houses. House operation-managing units and house renters may neither change at
their own discretion use purposes nor transfer houses in any form:
c/
Leasing, and managing the operation of, social houses are eligible for
mechanisms like public-utility services under the Finance Ministry's guidance;
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e/
House operation-managing units may use other areas within social house
complexes for commercial purposes to offset house management and operation
expenses;
f/
Social houses being condominiums shall be operated and managed under the
Construction Ministry's Circular No. 36/2009/TT-BXD of November 16, 2009,
guiding the sale, lease, lease-purchase and use management of houses for
low-income earners in urban areas.
Student
houses shall be operated and managed under the Construction Ministry's Circular
No. 13/2009/TT-BXD of June 30, 2009, guiding the lease and operation management
of student and industrial-park worker houses.
3.
Pursuant to Section 3. Chapter II of Decree No. 71/2010/ND-CP and this Article,
provincial-level Construction Departments shall elaborate and submit a
Regulation on management of social houses built with state budget funds to
provincial-level People's Committees for promulgation and uniform application
in localities.
Section 3. HOUSE-RELATED TRANSACTIONS
Article 18. Commercial house-related transactions via
real estate trading floors
1.
The sale, lease or lease-purchase of commercial houses by real estate traders
shall be conducted via real estate trading floors under Article 60 of Decree
No. 71/2010/ND-CP and the law on real estate trading, unless investors raise
capital in the forms specified at Points a, b, c and d. Clause 1. Article 9 of
Decree No. 71/2010/ND-CP.
Signed
contracts will be invalidated in case the purchase, sale, lease or
lease-purchase of commercial houses by real estate traders in provinces and
centrally run cities in which exist real estate trading floors (regardless of
the origin of houses established) is not conducted via real estate trading
floors under Article 60 of Decree No. 71/2010/ND-CP. the law on real estate trading
and this Article. In case of purchase and sale or lease-purchase of houses, the
Slate will not grant ownership certificates to purchasers and rent-purchasers
for such houses.
An
investor shall send to the real estate trading floor a valid dossier evidencing
the commercial house's eligibility for via-floor trading, comprising copies of
the competent agency's document recognizing the project investor; a master plan
approval decision and a 1:500-scale drawing of the approved detailed master
plan or a drawing of the project's total plan (in case 1:500-scalc master plans
are not required); a project approval decision: a land allocation or lease
decision or land use right certificate granted for the whole project;
construction license, in case this license is required; an approved design
drawing of each type of house to be purchased, leased or lease-purchased; and a
record of technical takeover test of the complete construction of the house's
foundation under Clause 10. Article 8 of this Circular.
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2.
Real estate trading floors may neither invest or deal in houses nor purchase
houses from investors for resale to others but may only sell, lease or
lease-purchase houses as authorized by enterprises having houses and provide
real estate services under the law on real estate trading. Real estate trading
floors may be authorized by commercial house project investors to seek partners
to contribute investment capital in the forms specified in Article 9 of Decree
No. 71/2010/ND-CP.
Investors
and real estate trading floors established by entities other than investors
(not attached to investors) may sign contracts to authorize via-floor sale,
lease or lease-purchase of houses. For real estate trading floors established
by investors (attached to investors), investors shall sign authorization papers
for these floors to sell, lease or lease-purchase houses they have built (these
authorization papers are substitutes for authorization contracts). A contract
or paper of authorization for via-floor sale, lease or lease-purchase of houses
must indicate the type, quantity and location of the houses; selling price and
rent or rent-purchase rate for each type of house; mode of sale, lease or
lease-purchase (lot-draw or auction): time limit for purchase, rent or rent-purchase
registration; charge for via-floor purchase and sale, lease or lease-purchase
transactions; time limit for publicizing the purchase and sale, lease or
lease-purchase of the houses at the floor and in the mass media of the locality
in which exist the houses; time for sale, lease or lease-purchase;
responsibilities of involved parties; and other information relating to the
houses under the law on real estate trading. The involved parties shall make
authorization according to forms of contracts or papers of authorization for
via-floor sale, lease or lease-purchase of commercial houses provided in
Appendix 11 to this Circular.
3.
The following papers must be publicly posted up at a real estate trading floor:
contracts or papers of authorization for via-floor sale, lease or
lease-purchase of houses; tables of selling prices and rent or rent-purchase
rates for commercial houses with investors' certification seals, and investors'
technical takeover records of complete construction of houses' foundations. It shall
provide adequate and accurate information and legal dossiers on houses for
sale, lease or lease-purchase to organizations and individuals that wish to
make via-floor transactions.
4. Real
estate trading floors may sell houses on the basis of authorization contracts
or papers signed with house-owning enterprises only after the foundations of
these houses are completely built (based on technical takeover records) under
Point c, Clause 3, Article 9 of Decree No. 71/2010/ND-CP and Clause 10. Article
8 of this Circular.
5. Only
after completing procedures for house purchase and sale via real estate trading
floors (purchasers have obtained certificates of via-floor trading from a real
estate trading floor under the law on real estate trading) and notifying such
in writing to provincial-level Construction Departments of localities in which
exist houses under Point f, Clause 3, Article 9 of Decree No. 71/2010/ND-CP,
house-owning enterprises may sign house purchase and sale contracts with
purchasers. In case of lease or lease-purchase of commercial houses, investors
may authorize via-floor transactions and sign lease or lease-purchase contracts
only when they have completely built houses (they have obtained house ownership
certificates or made records of completion of houses under the construction
law).
Signed
contracts will be invalidated in case the sale, lease or lease-purchase of
commercial houses is conducted in contravention of Articles 9 and 60 of Decree
No. 71/2010/ND-CP, this Article and the law on real estate trading. Violators
shall be handled under law and. if causing damage, pay compensation. Real
estate trading floors which fail to strictly comply with this Article will have
their business registration certificates for dealing in real estate trading floors
deprived of and shall be sanctioned undercurrent law.
When
detecting real estate trading floors' violation of regulations on via-floor
sale, lease or lease-purchase of commercial houses, provincial-level
Construction Departments or competent agencies may request agencies that have
granted business registration certificates to deprive the right to use business
registration certificates for dealing in real estate trading floors and shall
report such in writing to the Ministry of Construction for deletion of the
names of violating floors from the website of Vietnam's network of real estate
trading floors.
6. An
organization or individual that has purchased a house via a real estate trading
floor or has been allocated a house under Article 9 of Decree No. 71/2010/ND-CP
and resells this house to another person shall comply with Clause 3, Article 60
of Decree No. 71/2010/ND-CP. Households, individuals or organizations without real
estate trading function that resell the purchased houses to other organizations
or individuals shall also comply with the following regulations:
a/ If
they have received houses from investors, they shall purchase and sell houses
according to procedures specified in the Housing Law and the civil law (sellers
must possess house ownership certificates granted by competent agencies and
involved parties shall make house purchase and sale contracts and pay taxes
under regulations);
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7. Once
every three months and in December every year or upon request, real estate
trading floors shall summarize and report to provincial- level Construction
Departments of localities in which they operate on the quantity of commercial houses
already traded via the floors (sold, leased or lease-purchased), locations of
houses traded. and names of investors that authorize via-floor trading of
houses). Provincial-level Construction Departments shall summarize and report
to the Ministry of Construction on via-floor trading results within the time
limit specified in this Clause or upon request.
Article 19. House-related transactions of overseas
Vietnamese and foreign organizations and individuals in Vietnam
1. Overseas
Vietnamese who purchase and sell, receive as gifts or donations, exchange or inherit
houses or are transferred the right to use land for building houses under
commercial house development projects in Vietnam (for cases eligible for
transfer of land use rights by selling foundations to households and
individuals to build houses under the land law) must possess papers evidencing
their eligibility to own houses in Vietnam under Articles 66 and 67 of Decree No.
71/2010/ND-CP.
Overseas
Vietnamese are required to possess only papers evidencing their permitted
residence in Vietnam under Article 67 of Decree No. 71/2010/ND-CP in order to
own houses in Vietnam. They are not required to have actually resided
(consecutively or in an accrued duration) for at least full three months in
Vietnam in order to own houses.
2. Overseas
Vietnamese who are ineligible for owning houses in Vietnam but are donated or
inherit houses in Vietnam may donate these houses to other entities that are
eligible to own houses in Vietnam or sell these houses for enjoying their
value. Procedures for selling houses to enjoy their value comply with Article
72 of Decree No. 71/2010/ND-CP.
3. Persons
with special expertise and skills under Point b. Clause 2. Article 66 of Decree
No. 71/2010/ND-CP shall be certified on the following principles;
a/
In case their special expertise and skills arc available on the list of
professions issued by Vietnam's Ministry of Labor. War Invalids and Social
Affairs, persons with special expertise and skills are those having skills of
the highest level under regulations of countries that issue skill certificates
to these persons.
A
person with special expertise and skills shall send i request to a Vietnamese
professional association or society for a written certification, enclosed with
a notarized copy of the certificate of skills of the highest level. In case
there is no relevant professional association or society to give such
certification, such request shall be sent to the ministry in charge of the
professional expertise and skills for certification;
b/
In case their special expertise and skills are unavailable on the list of
professions issued by Vietnam's Ministry of Labor. War Invalids and Social
Affairs, after receiving a request, a Vietnamese professional association or
society (if available) or a ministry in charge of the relevant domain (if a
professional association or society is unavailable) shall, based on criteria
and requirements of special expertise and skills set by such association,
society or ministry, issue a written certification for the applicant or give a
reply clearly stating the reason to the applicant (if refusing to grant such
certification);
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4.
When granting land use right or house and land-attached ownership certificates
or carrying out procedures for transfer of house ownership to overseas
Vietnamese who are eligible to own homes in Vietnam, district-level People's
Committees shall send reports, made according lo forms provided in Appendices
12 and 13 to this Circular, to the Ministry of Construction for management
under Article 68 of Decree No. 71/2010/ND-CP.
5.
When purchasing houses in Vietnam, foreign organizations and individuals shall
comply with the National Assembly's Resolution No. 19/2008/QH12 of June 3,
2008, on pilot permission for foreign organizations and individuals to purchase
and own houses in Vietnam, and the Government's Decree No. 51/ 2009/ND-CP of
June 3, 2009, guiding this Resolution.
The
order and procedures for the grant of land use right or house and land-attached
ownership certificates to entities eligible to own homes in Vietnam under this
Article comply with regulations on grant of land use right or house and
land-attached ownership certificates.
Article 20. Handling of cases of transfer of house
purchase and sale contracts under housing development projects, new urban
center projects or eco-tourist zone or resort projects
1.
A household, an individual or an organization without real estate trading
function that wishes to transfer a contract to purchase and sell a future house
after the effective date of Decree No. 71/2010/ND-CP shall comply with the
following regulations:
a/ The
involved parties shall make a document on the transfer of a house purchase and
sale contract according to the form provided in Article 14 to this Circular and
have it certified by a notary public. When requesting notarization, the parties
shall produce the house purchase and sale contract signed with the investor. If
they transfer such contract from the second time on, they shall produce the
document on the previous transfer;
b/
Based on the contract transfer document made under Point a of this Clause,
either party shall, as agreed, submit copies of papers (including the contract
transfer document; receipts of capital contribution or payment of money to the
investor; and house purchase and sale contract signed with the investor) to the
tax office for carrying out procedures for income tax collection under law. If
contract transfer is eligible for income tax exemption, the tax office's papers
certifying such exemption are required;
c/ After
paying taxes under regulations, the contract transferee shall submit a dossier
of request for contract transfer (comprising a copy of the income tax receipt
or tax office's paper evidencing income tax exemption: a copy of the house
purchase and sale contract signed with the investor and the original contract
transfer document certified by the notary public) for the investor to certify
this contract transfer document Within 5 working days after receiving the
transferee's dossier, the investor shall certify the contract transfer document
and hand it to the transferee. The investor may not collect any charge from
such transfer.
After
certifying the contract transfer document, the investor shall terminate
transactions with the transferor and directly conduct transactions with the
transferee. The transferee may take over the transferor's rights and
obligations under the house purchase and sale contract signed with the investor
and will be regarded as the house purchaser from that dale:
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e/
The final transferee (organization or individual that sends an application to a
competent state agency for a house ownership certificate) may have his/her/its
name written in the land use right or house and land-attached asset ownership
certificate. When carrying out procedures for the grant of house ownership
certificates, in addition to papers under regulations on grant of land use
right or house and land-attached asset ownership certificates, the investor (or
applicant for such certificate) shall submit to the certificate-granting agency
the following papers related to the contract transfer:
- The
house purchase and sale contract signed between the investor and first-time
purchaser;
- Papers
certifying via-floor trading (for houses in provinces or centrally run cities
in which exist real estate trading floors) or the provincial-level Construction
Department's certification of allocation of the house (for cases eligible for
house allocation) for the first-time purchaser;
- The
contract transfer document, certified by a notary public and the investor, and
income tax receipt or paper certifying income tax exemption under regulations.
In
case of multiple transfers of a house purchase and sale contract, the last
applicant for a certificate shall submit contract transfer documents and tax
receipts of previous transfers or paper certifying income lax exemption to the
agency with certificate-granting competence under the guidance in the example
below:
Example: Mr. B signs a house purchase and sale contract with
company A in the form of purchase and sale of a future house. Pending the transfer
of the house, if Mr. B transfers this contract to Mr. C, both B and C shall
carry out procedures for notarization of the contract transfer document while
Mr. B pays income tax (if any) and later requests company A to certify the
contract transfer document under Points a, b and c of this Clause. If Mr. C
further transfers this contract to Mr. D and Mr. D further transfers it to Mr.
E (E is the last transferee), upon each transfer the involved parties shall
carry out procedures as mentioned above.
When
carrying out procedures lo apply for a house ownership certificate, company A
(or Mr. E) shall submit papers related to the contract transfer to the agency
with certificate-granting competence, including the house purchase and sale
contract signed between company A and Mr. B; 3 contract transfer documents certified
by a notary public and the investor, enclosed with 3 income lax receipts (or
the tax office's papers certifying income tax exemption) for 3 transfers
(between B and C, between C and D, and between D and E); a written
certification of via-floor trading between company A and Mr. B (for houses in
provinces and centrally run cities in which real estate trading floors are
available) or the provincial-level Construction Department's certification of
house allocation, in case Mr. B is allocated a house by company A.
2.
In case a household or an individual had been transferred a contract on
purchase and sale of a future house before the effective date of Decree No.
71/2010/ND-CP, contract transfer documents of these transfers must be certified
by the People's Committee of the commune, ward or township in which the house
project exists. If no certification is given, this People's Committee shall
publicly post up at its head office the contract transfer documents for 60 days
after receiving the last transferee's application for the certificate- Past
that time limit, if such house is dispute-free, the commune/ward/ township
People's Committee shall give certification that this house is dispute-free for
a competent agency to grant a house ownership certificate to the last
transferee.
Before
obtaining a house ownership certificate, the involved parties shall fulfill all
financial obligations towards the State under law,
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a/
If the enterprise is allocated houses under capital contribution or investment
cooperation contract, it may resell such houses only after signing a house
purchase and sale contract with the investor under Clause 2, Article 60 of
Decree No. 71/2010/ND-CP;
b/
The enterprise shall sell houses via real estate trading floors under this
Circular and the law on real estate trading (regardless of whether it has been
transferred houses from the investor). When selling a house via the real estate
trading floor, the enterprise shall provide the floor with the copies of:
- The
house purchase and sale contract signed with the investor;
- A
written certification of the provincial-level Construction Department of the
locality in which exists the house (for cases eligible for house allocation) or
a written certification of the via-floor trading (for cases of purchase and
sale of houses via floors);
- Dossier
of the house, provided by the investor;
- The
receipt of payment of the house purchase money to the investor;
- The
house transfer record (if it has been transferred the house from the investor).
c/
Purchasers of houses from real estate trading enterprises under this Clause who
resell such houses to others shall comply with the following provisions:
- Households,
individuals or organizations without real estate trading function that have
received houses from sellers shall carry out house purchase and sale procedures
under Point a. Clause 6. Article 18 of this Circular. If having received no
houses from sellers, purchasers shall transfer house purchase and sale
contracts under Clause 1 of this Article;
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Article 21. House-related contracts
1. House-related
transactions shall be made in contract (referred to as house-related contracts)
with the details specified in Article 93 of the Housing Law, the Civil Code,
and Article 63 of Decree No. 71/2010/ND-CP, and according to the forms and
details provided in appendices to this Circular.
2. In
addition to the details specified in Clause 1 of this Article, a condominium
apartment purchase and sale contract must also indicate the following: area
under common ownership, area under private ownership of the condominium owner;
floor area of the apartment (determined on the principle of calculating the
apartment's clearance or calculating from the middle of the surrounding walls
and walls separating apartments); maintenance fund equal to 2% of the apartment
sales; funds to be raised for managing the condominium operation; principle of
adjusting such funds, which must not exceed the ceiling prices promulgated by
the provincial- level People's Committee of the locality in which exists the
condominium, unless otherwise agreed by the parties. Enclosed with the
condominium apartment purchase and sale contract must be an internal regulation
on use management of the condominium issued by the investor and a list of
construction materials used inside and outside the apartments.
3. House-related
contracts shall be notarized and certified under the law on notarization, the Housing
Law. Decree No. 71/2010/ND-CP, the civil law and this Circular.
In
case of authorized management, use and care of houses and authorized sale,
lease, lease-purchase or donation of houses (or authorized disposal of houses),
the authorizing party may make a document of authorization and the agency with
notarization and certification competence may notarize or certify such
authorization only after houses are completely built (the authorizing party has
either of the following papers: house ownership certificate; or house handover
record or record of house completion under the construction law).
4. Forms
of house-related contract are specified as follows: A house purchase and sale contract
is provided in Appendix 15; a contract on purchase and sale of a condominium apartment
for commercial purposes, in Appendix 16; a contract on rent of a commercial
house, in Appendix 17; a contract on rent of an official- duty house, in
Appendix 18: a contract on rent of a social house applicable to entities
defined in Clauses 1,2 and 4, Article 37 of Decree No. 71/2010/ND-CP, in
Appendix 19; a contract on rent- purchase of a social house applicable to
entities defined in Clauses 1. 2. 3 and 4. Article 37 of Decree No.
71/2010/ND-CP, in Appendix 20: a contract on donation of a house, in Appendix
21; and a contract on exchange of a house, in Appendix 22, to this Circular.
Particularly,
contracts on rent of student houses or contracts on rent of industrial-park
worker houses shall be made according to the forms provided in the Construction
Ministry's Circular No. 13/2009/TT-BXDof June 30, 2009, on lease and. operation
management of student houses and industrial-park worker houses. Contracts on
purchase and sale of apartments for low-income earners, contracts on rent of
apartments and contracts on rent-purchase of apartments for low-income earners
shall be made according to the forms provided in the Construction Ministry's
Circular No. 36/2009/ TT-BXD of November 16. 2009, on sale, lease,
lease-purchase and use management of houses for low-income earners in urban areas.
Other
house-related contracts with their forms and details not provided in this
Circular shall be made under the civil law and other relevant laws.
Chapter IV
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Article 22. Preservation and management of
house-related dossiers
1. House-related
dossiers to be preserved and managed include papers specified in Article 66 of
the Housing Law and Article 76 of Decree No. 71/2010/ND-CP.
2. The
maker of dossiers related to a house is the owner or current manager or user of
such house if the owner is unidentifiable.
3. Agencies
preserving and managing house-related dossiers are defined as follows:
a/
Provincial-level Construction Departments shall preserve and manage dossiers
related to houses of organizations; houses of overseas Vietnamese who carry out
house construction investment projects in Vietnam; houses purchased by foreign
individuals under law; and houses under common ownership of organizations and
individuals;
b/
District-level divisions with house management function shall preserve and
manage dossiers related to houses of domestic individuals; and houses of
overseas Vietnamese who own houses with the right to use residential land in
Vietnam when participating in house-related transactions.
4.
Preservation and management of house-related dossiers cover:
a/
Preserving and managing house-related dossiers specified in this Article under
the law on preservation of dossiers;
b/ Establishing
a database for computer-based management of dossiers to monitor and report on
implementation and meet housing management requirements;
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Article 23. Professional training in housing and real
estate market development and management
1. The
training of cadres and civil servants engaged in housing and real estate market
development and management and individuals working in condominium
operation-managing enterprises complies with Article 78 of Decree No.
71/2010/ND-CP.
2. Professional
training for cadres and civil servants engaged in housing and real estate
market development and management covers:
a/
Formulation of housing development programs and plans;
b/
Selection of investors of housing development projects;
c/
Formulation, appraisal, approval of and investment approval for housing
development projects;
d/
Management of housing projects and condominiums after investment;
e/
Management of house maintenance, renovation and dismantlement;
f/
Management of the sale, lease or lease-purchase of social houses and the lease
of official-duty houses;
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h/
Investigation, making statistics and establishment of a house-related database;
i/ Management
of house-related transactions, real estate trading activities and house-related
public services;
j/
Responsibilities of house-related state management agencies at all levels,
3.
Based on the training contents specified in Clause 2 of this Article, the
Academy of Construction and Urban Administrators under the Ministry of
Construction shall coordinate with the Housing and Real Estate Market
Management Department under the Ministry of Construction in formulating
specific training plans, contents and programs and incorporate them into
general training programs for construction cadres and civil servants for
submission to the Minister of Construction for approval.
Based
on the Construction Ministry's training plans and programs, provincial-level
Construction Departments shall formulate plans and estimate funds for training
local cadres and civil servants (of commune, district and provincial levels)
engaged in housing and real estate market activities in order to submit these
plans and funds to chairpersons of provincial-level People's Committees for
decision and implementation according to training programs approved by the
Ministry of Construction.
4.
For professional training in condominium management and operation for
individuals working in enterprises engaged in management and operation of
condominiums (including houses with mixed use purposes), the Housing and Real
Estate Market. Management Department under the Ministry of Construction shall
coordinate with concerned units under the Ministry of Construction in compiling
training programs and contents for submission to the Ministry of Construction
for approval as a basis for training and grant of certificates of professional
training in condominium management and operation to the individuals defined in
this Clause.
Members
of Boards of Directors of enterprises; heads of technical, security,
protection, fire prevention and fighting safety, and environmental sanitation
teams; and heads of condominium-operating shifts who are working in condominium
management and operation enterprises must attend training courses. By July 1,
2012, at the latest, the person s defined in this Clause must complete training
courses and obtain certificates of professional training in condominium
management and operation. Past this deadline, if these persons have no such
certificates, they and their enterprises will not be allowed to manage
condominium operation. Other individuals not defined in this Clause are
encouraged to attend such training courses.
5.
Trainers who provide professional training in housing and real estate market
knowledge under this Article must be persons with professional qualifications,
good command of housing and real estate market policies and laws, experience in
housing, real estate market and condominium management, and pedagogic
knowledge. Only training institutions that satisfy all the conditions specified
by the Ministry of Construction may provide training in housing and real estate
market knowledge under this Article.
6.
Funds for training under this Article are specified as follows:
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b/ Training
of state budget-salaried cadres and civil servants of agencies or organizations
shall be paid by state budget funds allocated to these agencies or
organizations.
Chapter V
EFFECT
Article 24. Responsibilities of provincial-level
People's Committees
1. Pursuant
to Decree No. 71/2010/ND-CP and the Working Regulation of the Central Steering
Committee for Housing and Real Estate Market Policies, to set up
provincial-level steering committees for housing and real estate market
policies and their assisting expert groups.
2. To
organize and arrange sufficient cadres and civil servants for housing
management and development under the Housing Law, Decree No. 71/2010/ND-CP and
this Circular.
3. To
direct provincial-level Construction Departments in:
a/
Coordinating with local functional agencies in formulating five-year or longer
housing development programs and reporting them to provincial-level People's
Committees for consideration and submission to provincial-level People's
Councils for approval. For centrally run cities, after submitting local housing
development programs to municipal People's Councils for approval, municipal
People's Committees shall submit them to the Prime Minister for approval before
implementation;
b/
Formulating programs and plans on professional training in housing and real
estate market for cadres and civil servants in localities; coordinating with
local mass media agencies in propagating, disseminating and introducing the
Housing Law. Decree No. 71/2010/ND-CP and this Circular to the public for
information and implementation;
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d/
Coordinating with district-level People's Committees in establishing databases
for summarizing and making statistics of the numbers of housing development
projects, new urban center projects, and eco-tourist zone and resort projects;
the numbers and types of houses to be build under each project; the number,
categories of and entities to be allocated houses under Decree No.
71/2010/ND-CP and this Circular;
e/
Performing other tasks as assigned under Decree No. 71/2010/ND-CP and this
Circular.
4. To
allocate funds for provincial-level Construction Departments to formulate local
housing development programs; propagate, introduce, and organize training
courses on, the housing law; and establish databases for summarizing and making
statistics of housing projects, (he numbers of houses and the purchase and sale
of houses in their localities under this Circular.
5. To
direct functional agencies in preserving and managing house-related dossiers in
their localities under Decree No. 71/2010/ND-CP and this Circular.
6. To
amend and supplement house-related legal documents falling within their
promulgating competence to comply with Decree No. 71/2010/ ND-CP and this
Circular.
7. To
promulgate condominium service charge rates for uniform application in their
localities; to appraise selling prices and rent or rent-purchase rates for
social houses built with non-state budget funds.
8. To
report to superior agencies on a periodical basis or upon request on
house-related matters in their localities.
9. To
implement according to their competence or direct local functional agencies in
implementing the Housing Law. Decree No.71/2010/ND-CP and this Circular.
Article 25. Responsibilities of the Housing and Real
Estate Market Management Department under the Ministry of Construction
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2. To
assist the Minister of Construction in providing guidance and settling
difficulties and problems within the Construction Ministry's competence in the
course of implementation of the housing law.
3. To
study, formulate and submit to the Minister of Construction for amendment and supplementation
according to his/her competence, or propose the Minister of Construction to
submit to competent agencies the amendment, supplementation or promulgation of.
housing regulations to suit reality.
4. To
summarize and report on the implementation of the housing law to the Ministry
of Construction for further reporting to superior agencies on a periodical
basis or upon request.
5. To
perform other tasks defined in this Circular or assigned by the Minister of Construction.
Article 26. Effect
1. This
Circular takes effect 45 days from the date of its signing.
2. From
the effective dale of Decree No. 71/2010/ND-CP, capital for building technical
infrastructure in areas of land for house construction and building houses
under house development projects, new urban center projects or eco-tourist zone
and resort projects shall be raised under Decree No. 71 /2010/ND-CP and this
Circular.
3. For
dossiers submitted to competent People's Committees requesting approval of house
development projects before the effective date of Decree No. 71/2010/ND-CP, but
approval has not yet been granted by these People's Committees:
a/
For housing development projects each with less than 2.500 houses (regardless
they are villas, detached houses or condominiums apartments), built with state
budget funds, the People's Committees shall approve them under the Government's
Decree No. 90/2006/ND-CP of September 6, 2006, detailing and guiding the
implementation of the Housing Law;
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c/
For housing development projects each with 2.500 houses or more (regardless
they are villas, detached houses or condominiums apartments and regardless of
land areas to be used and investment capital sources), provincial-level
People's Committees shall send reports enclosed with project dossiers to the
Prime Minister requesting investment approval, if obtaining the Prime Minister's
approval, provincial-level People's Committees shall approve projects (for
slate-funded projects) or issue notices to investors for appraisal and approval
of projects (for projects using capital other than state budget funds).
4.
For housing development projects approved before the effective date of Decree
No. 71/2010/ND-CP. if investors request adjustment of these projects, they
shall submit such adjustment to the agencies that have approved these projects
for additional approval. In case changes in project sizes or land areas to be
used will result in a change in the total quantity of houses by 2.500 or more,
investors shall send reports to provincial-level People's Committees for
consideration and reporting to the Prime Minister for additional approval before
approving such changes.
5. To
annul the provisions on the raising of capital for building houses within new
urban centers in Section VIII of the Construction Ministry's Circular No. 04/2006/TT-BXP
of June 18. 2006, guiding the Regulation on new urban centers promulgated
together with the Government's Decree No. 02/2006/ND-CP of January 5. 2006;
6. To
replace Clauses 1 and 2, Article 10 of the Construction Ministry's Circular No.
15/ 2009/TT-BXD of June 30, 3009, guiding methods of determining rent rates for
student houses, worker houses and houses for low-income earners and selling
prices and rent-purchase rates for houses for low-income earners under projects
invested by different economic sectors, with the following:
"1.
To appraise, and issue documents appraising, house selling prices and rent or
rent purchase rates within 30 days after receiving investors' reports
requesting such appraisal."
7. To
annul the following circulars:
a/
The Construction Ministry's Circular No. 13/2005/TT-BXD of August 5, 2005,
guiding the Government's Decree No. 95/2005/ND-CP of July 15,2005, on grant of
house and construction work ownership certificates:
b/
The Construction Ministry's Circular No. 05/2006/TT-BXD of November 1, 2006,
guiding the Government's Decree No. 90/2006/ND-CP of September 6, 2006,
detailing and guiding the implementation of the Housing Law;
c/
The Construction Ministry's Circular No. 01/2009/TT-BXD of February 25, 2009,
providing for a number of provisions on grant of house ownership certificates
and guiding the form of contract on purchase and sale of condominium apartments
under construction investment projects of housing dealers.
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9. Any
problems arising in the course of implementation should be reported to the
Ministry of Construction for amendment or supplementation according to its
competence or for submission to the Prime Minister for consideration and
decision.-
FOR THE MINISTER OF CONSTRUCTION
DEPUTY MINISTER
Nguyen Tran Nam
* Note: All the appendices mentioned in this Circular
are not printed herein.
REGULATION ON MANAGEMENT AND USE OF
APARTMENT BUILDINGS … 1
(Enclosed with the Contract for sale and
purchase of apartment No…./dated …)
Article 1. Scope and regulated entities
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Article 2. Responsibility of the investor
1. Select and sign a contract with enterprises having professional
function of operation of apartment buildings (including enterprises affiliated
to the investor) since the apartment building is put into operation until the
management board is established. Propose the enterprise performing operation of
apartment building (herein ‘the enterprise’) to the apartment building meeting
for approval;
2. Collect expenses for maintenance of shared area of the
apartment building (specify name of the apartment building) as prescribed in
the Government’s Decree No. 71/2010/ND-CP providing instructions on the
implementation of the Law on Housing; perform management of expenses for
maintenance of the apartment building according to applicable regulations;
3. Hand over infrastructure outside the apartment building to
local regulatory agencies as prescribed (if the apartment building is of
mixed-use one, the investor should hand over infrastructural constructions as
mentioned above after all privately-owned portions are sold to other owners);
4. Provide instructions on use of technical infrastructure system
and facilities inside the apartment building to occupants;
5. Hand over one set of as-built drawings and documents concerning
management and use of apartment building with respect to shared portions to the
management board for storage as archives;
6. Preside over organization of the apartment building meeting and
appoint people to join the management board according to the Regulation on
Management and Use of Apartment Building enacted by the Ministry of
Construction;
7. Have the right to suspend or require suppliers to suspend
provision of electricity, water and other utilities if owners or members of the
apartment are found to have seriously violated the Regulation or the Table of
regulations;
Article 3. Enterprises performing operation of apartment buildings
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2. The enterprise is entitled to sign sub-contracts with other enterprises
for provision of services (if any); monitor provision of services made by
aforesaid enterprises to ensure compliance with the signed contract;
3. Responsibility of the enterprise:
Perform operation of the apartment building; Operation of the apartment
building includes controlling and maintaining operation of facilities
(including lifts, water pumps, backup power generators, technical
infrastructure and other facilities) that belong to shared portions of the
apartment building; provide services (security, sanitation, collection of
waste, garden care, insect treatment and other services) to ensure normal
operation of the apartment building;
b) Make written notifications of requirements and warnings to
occupants upon when they start to use the apartment building; provide
instructions on installation of facilities of privately-owned portions into
shared portions of the apartment building;
c) Carry out regular examination of details and components of the
apartment building to facilitate operation of the apartment building;
d) Immediately prevent possible damage caused to occupants and
carry out remedial work to any part of the shared portion or facilities found
damaged to ensure normal operation of the apartment building;
dd) Collect expenses for operation of the apartment building on a
monthly basis as authorized by the management board;
e) Cooperate with the management board in making requests to
public utility agencies for suspension of provision of water and electricity to
occupants that fail to pay expenses for operation of the apartment building and
violate Article 23 of this Regulation;
g) Make biannual reports on the tasks of operating the apartment
building to the management board and cooperate with the management board in
collecting suggestions from occupants on services provided to the apartment
building;
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Article 4. Management Board
1. The management board shall be elected by the apartment building
meeting including representatives from owners, occupants of the apartment
building and representatives of the investor or the Managing unit.
2. Responsibility and authority of the management board:
Preside over the apartment building meeting; make reports on
management and use of the apartment building during the period of time between
the two apartment building meetings;
b) Protect legal interests of occupants of the apartment building;
conduct inspection and speed up occupants to comply strictly with this Table of
regulations and the Regulation on Management and Use of Apartment Buildings;
create favorable conditions for the enterprise to fulfill their tasks under the
signed contract;
c) Collect and compile suggestions, proposals from occupants
concerning management and use of the apartment building to report to the
enterprise, functional agencies, relevant organizations and individuals for
considerations and handling;
d) Sign a service supply contract with the enterprise or a
maintenance contract with a legal construction company (selection of such
enterprises should be passed in the apartment building meeting); Monitor and
inspect operation and maintenance of the apartment building according to terms
and conditions of the signed contract; carry out acceptance tests, payment and
settlement of the contract signed with such enterprises;
dd) Directly collect or authorize the enterprise to collect
expenses for operation of the apartment building;
e) Examine reports on receipts and expenditures on operation and
maintenance of the apartment building performed by the enterprises under the
signed contract and make the report to the apartment building meeting as
prescribed in Point a, this Clause;
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h) Carry out collection of suggestions from occupants on a
six-month basis as foundations for assessment of quality of the services
provided by the enterprise;
Perform other tasks assigned by the apartment building meeting;
k) Be entitled to liability allowances and other expenses for
operation of the management board;
l) Not allowed to organize subordinate departments, dismiss or add
members of the management board on its own choice;
3. The management board operates on the principle of collectives
and under the majority rule.
4. Maximum tenure of the management board is three years since
People’s Committee of District signs the recognition decision.
Article 5. Rights and obligations of owners and occupants
1. Rights and obligations of owners:
Have ownership to floor area as purchased under the signed contract;
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c) Request responsible persons to provide or publish information
about management and use of the apartment building;
d) Comply fully with decisions made by the apartment building
meeting;
dd) Be responsible for carrying out maintenance of privately-owned
portions;
e) Make adequate and timely payment of expenses for operation, maintenance
of shared portions of the apartment building and other expenses as prescribed;
g) Create favorable conditions for responsible persons to perform
the operation and maintenance of shared portions of the apartment building;
h) Comply with the Regulation on Management and Use of Apartment
Building, regulations on fire and explosion prevention and fighting, public
sanitation, social security and order; make timely notifications of violations
within the apartment building;
Carry out registration for temporary residence/absence according
to laws;
k) Provide the Table of regulations to occupants as well as
organizations and individuals that are legally authorized to use its own
apartment;
l) Restore to original state or make compensation for damage caused
to shared portions or other owners’ private portions;
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Entitled to privately-owned portions as agreed by the owner and
other shared portions of the apartment building;
b) Request the owner to provide the Table of regulations and
information about management and use of the apartment building;
c) Participate in the apartment building meeting, contribute to
expenses for operation of the apartment building if agreed with the owner;
d) Comply fully with decisions made by the apartment building
meeting;
dd) Perform obligations as prescribed in Points g, h, i, k, l,
Clause 1, this Article;
Article 6. Prohibited acts in management and use of apartment
buildings
1. Extend, appropriate space, or damage properties pertaining to
shared portions of the apartment building or shared portions in any shape or
form; renovate, remove or change load bearing structure, technical
infrastructure system, shared facilities, outer architectural structure;
2. Divide, modify shared portions in opposition to regulations;
3. Cause too much noise and negative effects on security and order
in the apartment building;
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5. Place ads, writings, drawings or perform other acts in
opposition to regulations; use materials or colors on the outside of the
apartments, apartment buildings; change structure, design of privately-owned
portions (construct partitions on the floor, move facilities and technical
system associated with shared portions, chisel and break apartments, extend
spaces in any shape or form);
6. Use or allow others to use privately-owned portions
inconsistent with use purposes;
7. Raise livestock and poultry in privately-owned portions
affecting order, landscape and living environment of other apartments in public
area;
8. Trade in inflammable and explosive stuff (welding material, gas,
explosives and other dangerous businesses);
9. Provide services that cause noise and environment pollution
(Karaoke, discotheque, motor bike and automobile repairs; livestock slaughter
and other environment-causing services);
10. Make wrong use of expenses for operation and maintenance of
the apartment building (applied to investors, management board and the
enterprise).
Article 7. Fee contribution
1. Expenses for maintenance of shared area: Additional collection
is made only when expenses for maintenance of shared area are insufficient.
Specific level of collection shall be passed in the apartment building meeting
ensuring level of contribution is in proportion to each owner’ private area in
the apartment building.
2. Expenses for operation of the apartment building is … VND/month1;
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4. Expenses for use of added-value services (use of swimming
pools, sauna…) is … VND/month or …VND/turn;
5. Other expenses (if any) …
Level of collection may be modified depending on specific
circumstances. Such modification shall be based on appropriate calculation and
passed in the apartment building meeting.
Article 8. Privately-owned areas, shared areas of apartment
buildings
1. Privately-owned areas that belong to owners, investors and
other owners (if any) include:
Apartment owners’ private areas including private area inside the
apartment (including balcony, loggia associated with such apartment), and
privately-owned technical facilities associated therewith…
b) Other owners’ private areas (if any) such as areas for
supermarket, offices, sports club:
.............................................. c) The investor's private areas
(apartments that remain unsold, apartments for lease or other utility works):
.... The investor’s private areas as specified in this Point does not include
the areas as prescribed in Clause 2, this Article.
2. Shared areas and infrastructure that belong to owners in the
apartment building (including apartment owners, owners of other areas, the
investor) include:
Corridor, stairs, lifts, shared walkway…;
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c) Public community house (if any)…;
d) Outside technical infrastructure system connected to the
apartment building …
dd) Other shared areas (as agreed)…
All areas as specified in this Clause shall be made specific in
terms of areas, positions for members of the apartment building to get access
to as prescribed in the Law on Housing and the Government’s Decree
71/2010/ND-CP dated June 23, 2010.
Article 9. Amendments, supplements on the Table of Regulations and
other regulations
.................1
NAME OF THE INVESTOR
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__________________
1 This
provides for principles on making amendments and supplements to the Table of
Regulations; simultaneously, other regulations may be issued to accord with
specific conditions of the apartment building but ensure consistence with the
Law on Housing and Regulation on Management and Use of Apartment Building
promulgated by the Ministry of Construction;
1 Name of
the apartment building
1 Level
of collection should not exceed maximum level of collection (ceiling price) of
expenses for operation of the apartment building issued by People’s committees
of provinces, cities where the apartment building is situated. Specify whether
this level of collection is inclusive (or not inclusive) of supports from sale
of areas privately owned by the Seller (the investor) .