Decree No. 76/2015/ND-CP dated September 10, 2015 of the Government guiding a number of articles of the Law on Real Estate Trading

DECREE

Detailing a number of articles of the Law on Real Estate Business[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 25, 2014 Law on Real Estate Business;

At the proposal of the Minister of Construction,

The Government promulgates the Decree detailing a number of articles of the Law on Real Estate Business.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details a number of articles and clauses of the Law on Real Estate Business, including provisions on conditions on organizations and individuals doing real estate business; model contracts for real estate business; transfer of contracts on hire-purchase of ready built houses and construction works; transfer of contracts on purchase and sale or hire-purchase of future houses; and procedures for transfer of the whole or part of real estate projects.

Article 2. Subjects of application

1. Organizations and individuals doing real estate business in Vietnam.

2. Agencies, organizations, households and individuals involved in real estate business in Vietnam.

Chapter II

SPECIFIC PROVISIONS

Section 1

CONDITIONS ON ORGANIZATIONS AND INDIVIDUALS ENGAGED IN REAL ESTATE BUSINESS

Article 3. Conditions on organizations and individuals doing real estate business

1. Organizations and individuals doing real estate business shall establish enterprises in accordance with the law on enterprises or establish cooperatives in accordance with the law on cooperatives (below collectively referred to as enterprises) and must have a legal capital of at least VND 20 billion, except:

a/ Organizations, households and individuals that irregularly sell, transfer, lease or sell on hire-purchase small real estate as prescribed in Article 5 of this Decree;

b/ Organizations and individuals that provide real estate services as prescribed in Chapter IV of the Law on Real Estate Business.

2. Real estate businesses that must have a legal capital specified in Clause 1 of this Article shall take responsibility for the truthfulness and accuracy of their legal capital amount.

Article 4. Bases for determining legal capital of real estate businesses

The legal capital level prescribed in Article 3 of this Decree shall be determined based on the charter capital of an enterprise or a cooperative in accordance with the law on enterprises or the law on cooperatives. Enterprises and cooperatives are not required to register for certification of their legal capital level.

Article 5. Organizations, households and individuals selling, transferring, leasing or selling on hire-purchase real estate prescribed in Clause 2, Article 10 of the Law on Real Estate Business

Organizations, households and individuals that may sell, transfer, lease or sell on hire-purchase real estate prescribed in Clause 2, Article 10 of the Law on Real Estate Business and are not required to establish real estate businesses include:

1. Those that sell, transfer, lease or sell on hire-purchase real estate not originating from their investment in real estate projects for commercial purposes, and households and individuals that sell, transfer, lease or sell on hire-purchase real estate originating from their investment in real estate projects for commercial purposes each having a total investment of under VND 20 billion (exclusive of land use levy).

2. Organizations that transfer land use rights or sell houses and construction works due to bankruptcy, dissolution or division.

3. Credit institutions, foreign bank branches, the Asset Management Company (AMC), the Vietnam Asset Management Company (VAMC), and other organizations and individuals that transfer land use rights, transfer real estate projects or sell houses and construction works used as guarantee or mortgage in order to collect debts.

4. Organizations, households and individuals that transfer land use rights or sell houses and construction works in order to dispose of assets under decisions of courts or competent state agencies to settle disputes, complaints or denunciations.

5. Organizations, households and individuals that build houses for sale, lease or sale on hire-purchase without having to establish enterprises under the law on housing.

6. Agencies and organizations that are permitted by competent state agencies to transfer land use rights or sell state-owned houses and construction works under the law on management of public assets.

7. Owners of real estate that sell, transfer, lease or sell on hire-purchase their real estate.

Section 2

MODEL CONTRACTS IN REAL ESTATE BUSINESS

Article 6. Model contracts for real estate business

Model contracts for real estate business issued together with this Decree include:

1. Contract on purchase and sale of ready built or future houses and construction works, form No. 01 provided in the Appendix to this Decree.

2. Contract on lease of ready built or future houses and construction works, form No. 02 provided in the Appendix to this Decree.

3. Contract on hire-purchase of ready built or future houses and construction works, form No. 03 provided in the Appendix to this Decree.

4. Contract on transfer or lease/sublease of land use rights, form No. 04a and No. 04b provided in the Appendix to this Decree.

5. Contract on transfer of the whole or part of a real estate project, form No. 05 provided in the Appendix to this Decree.

Article 7. Application of model contracts for real estate business

1. The model contracts for real estate business issued together with this Decree are for reference by related parties during the negotiation and conclusion of contracts.

2. The parties may agree to modify and supplement articles and clauses in a model contract provided that their signed contract has all the major contents prescribed in Articles 18, 47 and 53 of the Law on Real Estate Business. The parties may reach agreement on specific contents of their contract which, however, must not contravene law.

Section 3

TRANSFER OF CONTRACTS ON HIRE-PURCHASE OF READY BUILT HOUSES AND CONSTRUCTION WORKS

Article 8. Conditions for transfer of contracts on hire-purchase of ready built houses and construction works

1. Hirers of ready built houses or construction works under hire-purchase contracts as prescribed in Section 4, Chapter II of the Law on Real Estate Business may transfer these contracts to other organizations or individuals when the dossiers of application for certificates of land use rights and ownership of houses and land-attached assets (below referred to as certificates) have not yet been submitted to a competent state agency.

2. Transferees of contracts on hire-purchase of houses and construction works may further transfer such contracts to others when the dossiers of application for certificates have not yet been submitted to a competent state agency.

3. In case of transfer of contracts on hire-purchase of houses and construction works, the whole contract signed with the seller shall be transferred. For a contract on hire-purchase of a house or an apartment, each house or apartment under this contract shall be transferred; for a contract on hire-purchase of many houses or apartments, all of these houses or apartments under this contract shall be transferred.

Article 9. Order and procedures for transfer of contracts on hire-purchase of ready built houses and construction works

The transfer of a contract on hire-purchase of houses and construction works shall be established in writing and the transfer document shall be notarized or certified under Clause 2 of this Article. The tax payment, project owner’s certification in the transfer document and grant of a certificate are as follows:

1. The transferor and transferee shall prepare a contract transfer document according to form No. 06 provided in the Appendix to this Decree or may request a notary public to do so. The contract transfer document signed by the two parties shall be made in 4 copies and notarized or certified under Clause 2 of this Article (1 copy to be kept by the seller, 1 to be submitted to the tax agency, 1 to be kept by the transferor, and 1 to be kept by the transferee).

2. The notarization or certification of a contract transfer document is prescribed as follows:

a/ If the transferor is a household, an individuals or an organization other than an enterprise with real estate business function, the document shall be notarized or certified. A dossier for notarization or certification must comprise:

- The original contract on hire-purchase of houses and construction works signed with the seller and, in case of transfer from the second time onward, the original document on the last transfer of the contract;

- The identity card or passport, if the transferee is an individual; or the establishment decision or establishment registration certificate (a certified true copy or a copy together with its original for comparison), if the transferee is an institution;

- Other papers as prescribed by the law on notarization and certification.

b/ If the transferor is an enterprise with real estate business function, the related parties shall agree whether the contract transfer document should be notarized or certified. If they agree on the notarization or certification, the notarization or certification shall be carried out under Point a of this Clause;

c/ The notarization practice organization or certification agency shall notarize or certify the contract transfer document within the time limit prescribed in the law on notarization and certification.

3. The parties to the transfer of a contract on hire-purchase of houses and construction works shall pay taxes, charges and fees for such transfer in accordance with law.

4. The seller’s certification in a contract transfer document is as follows:

a/ The related parties shall submit the following papers to the seller:

- The original contract on hire-purchase of houses and construction works signed with the seller;

- The notarized or certified contract transfer document; if this document is not notarized or certified, it shall be enclosed with the original document on the last transfer of the contract, in case of transfer from the second time onward;

- The original tax payment receipt or document proving the eligibility for tax exemption under the laws on taxes;

- The identity card or passport, if the transferee is an individual; or the establishment decision or establishment registration certificate (a certified true copy or a copy together with its original for comparison), if the transferee is an institution.

b/ The seller shall certify the contract transfer document within 5 working days after receiving the contract transfer dossier and return the dossier-submitting party the papers it has submitted, including 2 copies of the certified transfer document (to be handed to the transferor and transferee), and may not collect any expense related to such transfer. The seller shall keep a set of the contract transfer dossier (copy) prescribed at Point a of this Clause, including the original contract transfer document.

5. From the date the contract transfer document is certified by the seller, the contract transferee may further exercise the rights and fulfill the obligations of the hirer toward the seller under the hire-purchase contract signed by the seller.

6. Transfers of contracts from the second time on shall be conducted like the first-time transfer.

7. The final transferee of a contract on hire-purchase of houses and construction works shall be granted a certificate by a competent state agency in accordance with the land law.

8. When carrying out procedures for grant of a certificate, in addition to the papers prescribed in the land law, the applicant shall submit to the certificate-granting agency the following papers:

a/ The original contract on hire-purchase of houses and construction works, signed with the seller;

b/ The document on the last transfer of the contract, certified by the seller.

Section 4

TRANSFER OF CONTRACTS ON PURCHASE AND SALE OR HIRE-PURCHASE OF FUTURE HOUSES

Article 10. Conditions for transfer of contracts on purchase and sale or hire-purchase of future houses

1. The purchaser or hirer under a contract on purchase and sale or hire-purchase of future houses that has not yet acquired or has acquired the house may transfer such contract to another organization or individual when the dossier of application for a certificate has not yet been submitted to a competent state agency.

2. The contract transferee may further transfer the contract to another organization or individual when the dossier of application for a certificate has not yet been submitted to a competent state agency.

3. The transfer of contracts on purchase and sale or hire-purchase of future houses shall be made for each house or apartment; for a contract on purchase and sale or hire-purchase of many houses or apartments, all these houses or apartments under this contract shall be transferred.

Article 11. Order and procedures for transfer of contracts on purchase and sale or hire-purchase of future houses

1. The order and procedures for transfer of contracts on purchase and sale of future houses must comply with the law on housing.

2. The order and procedures for transfer of contracts on hire-purchase of future houses must comply with Article 9 of this Decree. The document on transfer of a contract on hire-purchase of future houses shall be made according to form No. 07 provided in the Appendix to this Decree.

3. The last transferee of a contract on hire-purchase of future houses may be granted a certificate from a competent state agency in accordance with the land law.

4. When carrying out procedures for grant of a certificate, in addition to the papers prescribed in the land law, the applicant shall submit to the certificate-granting agency the following papers:

a/ The original contract on hire-purchase of future houses signed with the seller;

b/ The original document on the last transfer of the contract, certified by the seller.

Section 5

ORDER AND PROCEDURES FOR TRANSFER OF THE WHOLE OR PART OF REAL ESTATE PROJECTS

Article 12. Order and procedures for transfer of the whole or part of projects in which investment is decided by provincial- or district-level People’s Committees (in the form of investment policy decision, investment decision or written investment approval)

The order and procedures for transfer of the whole or part of a project in which investment is decided by a provincial- or district-level People’s Committee to another project owner for continued business investment are as follows:

1. The transferor shall send one set of dossier of request for transfer of the whole or part of the project to the provincial-level People’s Committee of the locality where the project is located or to the agency authorized by the provincial-level People’s Committee, namely:

a/ The provincial-level Department of Construction, for projects on new urban centers or housing development projects;

b/ A provincial-level specialized Department authorized by the provincial-level People’s Committee, for other real estate projects.

2. A dossier of request for transfer of the whole or part of the project must comprise:

a/ The project owner-transferor’s written request for transfer of the whole or part of the project, made according to form No. 8a or 8b provided in the Appendix to this Decree;

b/ The dossier of the whole or part of the to-be-transferred project, comprising:

- The competent state agency’s written permission for investment or written approval of investment (certified true copy);

- The decision (certified true copy) approving the project and detailed plan of 1:500 scale or general plan;

- The land use rights certificate (certified true copy) of the whole or part of the to-be-transferred project.

c/ The transferor’s report on project implementation by the time of transfer, made according to form No. 9a or 9b provided in the Appendix to this Decree.

d/ The transferee’s dossier, comprising:

- The written request for acquiring the whole or part of the project, made according to form No. 10a or 10b provided in the Appendix to this Decree;

- A certified true copy of the business registration certificate indicating the real estate business line or of the enterprise registration certificate indicating a charter capital that satisfies the requirement specified in Article 3 of this Decree, except for foreign investors that have not yet established any economic entities under the law on investment;

- The document proving the transferee’s own capital for the project implementation under the investment and land laws. If this document is unavailable, for an operating enterprise, an independent audit firm’s written certification or the latest audited financial statement of the transferee’s equity (in the year of transfer or the year preceding the year of transfer) is required. For a newly established enterprise, if its equity is in Vietnam dong or a foreign currency, the certification by the commercial bank where the enterprise has its account of its deposit balance is required; if its equity is in asset, the certificate of an valuation organization or price appraisal organization operating in Vietnam of the result of valuation or price appraisal of the enterprise’s assets is required.

3. Within 30 days after receiving a complete and valid dossier, the agency defined in Clause 1 of this Article shall collect opinions from the provincial-level Department of Planning and Investment, Department of Finance, Department of Natural Resources and Environment, Department of Construction, and Department of Tax and line Department, and organize an appraisal under Article 14 of this Decree, and request the provincial-level People’s Committee to sign the decision permitting the transfer. If refusing to permit the transfer, the provincial-level People’s Committee or the specialized agency authorized by the provincial-level People’s Committee shall notify such in writing to the project owner-transferor, stating the reason.

4. Within 30 days after obtaining a competent state agency’s decision permitting the transfer of the whole or part of the project (made according to form No. 11 provided in the Appendix to this Decree), the related parties shall sign the transfer contract and complete the handover of the whole or part of the project. The transferee shall continue implementing the whole or part of the project immediately after the handover. The transferor shall hand to the transferee all the dossier related to the whole or part of the project together with the handover record.

Before carrying out handover procedures, the transferor shall notify in writing the transfer of the whole or part of the project and interests of customers and related parties to all customers (if any) and in the mass media 15 days in advance (on at least 3 consecutive issues of a local newspaper or on a local or central television and on the website (if any) of the focal-point agency). If customers or related parties present opinions on their interests related to the whole or part of the transferred project, the transferor shall settle these cases in accordance with law before signing the transfer contract.

5. The transfer of land use rights of the whole or part of the project permitted for transfer must comply with the land law.

Article 13. Order and procedures for transfer of the whole or part of projects in which investment is decided by the Prime Minister (in the form of investment policy decision, investment decision or written investment approval)

The order and procedures for transfer of the whole or part of a project in which investment is decided by the Prime Minister to another project owner for continued investment are as follows:

1. The transferor shall send one set of dossier of request for transfer of the whole or part of the project as prescribed in Clause 2, Article 12 of this Decree to the provincial-level People’s Committee of the locality where the project is located.

2. Within 45 days after receiving a complete and valid dossier, the provincial-level People’s Committee shall collect opinions from the Ministry of Construction, the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Natural Resources and the line Ministry, and organize an appraisal under Article 14 of this Decree for reporting to the Prime Minister for decision.

3. Other contents related to the transfer of the whole or part of real estate projects in which investment is decided by the Prime Minister must comply with the order and procedures specified in Article 12 of this Decree.

Article 14. Appraisal of, and giving of opinions on, dossiers on transfer of the whole or part of projects

1. The appraisal of, and giving of opinions on, a dossier on transfer of the whole or part of a real estate project cover:

a/ The project owner’s dossier of request for transfer of the whole or part of the project as prescribed in Clause 2, Article 12 of this Decree;

b/ Conditions on the whole or part of the project as prescribed in Clause 1, Article 49 of the Law on Real Estate Business;

c/ Conditions on the transferor as prescribed in Clause 2, Article 49 of the Law on Real Estate Business;

d/ Conditions on the transferee as prescribed in Clause 3, Article 49 of the Law on Real Estate Business and the land law.

2. The appraising agency defined in Clause 1, Article 12 and responsible agencies shall give opinions on a dossier of request for transfer of the whole or part of a real estate project under Clause 3, Article 12, or Clause 2, Article 13, of this Decree, and shall give opinions on the contents specified in Clause 1 of this Article, clearly stating whether the project is eligible for transfer. If the project is ineligible for transfer, the appraising agency shall clearly state the reason for the agency in charge of appraisal to issue a reply to the transferor.

Chapter III

IMPLEMENTATION PROVISIONS

Article 15. Effect

1. This Decree takes effect on November 1, 2015.

2. This Decree replaces the Government’s Decree No. 153/2007/ND-CP of October 15, 2007, detailing and guiding the implementation of the 2006 Law on Real Estate Business.

Article 16. Transitional handling

1. Operating real estate businesses that do not yet satisfy the condition on legal capital specified in this Decree may continue their operation but must satisfy this condition within one year counting from July 1, 2015, if they wish to further do real estate business.

2. Real estate business investment projects in which investment has been decided by a competent state agency, to which land has been allocated or leased, the transfer of which has been permitted in writing by a competent state agency, and for which real estate transfer, sale, lease or hire-purchase contracts were signed before July 1, 2015, are not required to carry out again the procedures prescribed in Law No. 66/2014/QH13 on Real Estate Business.

3. Contracts on purchase and sale, transfer, lease or hire-purchase of real estate or transfer of projects and contract transfer documents signed before the effective date of this Decree may be further performed without having to be signed again using the model contracts and according to the order and procedures prescribed in this Decree.

Article 17. Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, real estate businesses, and related organizations and individuals shall implement this Decree.

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG

* All the forms issued together with this Decree are not translated.-