Nghị định 02/2022/ND-CP

DECREE

ON ELABORATION OF CERTAIN ARTICLES OF THE LAW ON REAL ESTATE TRADING

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on amendments to the Law on Government Organization and the Law on Organization of Local Government dated November 22, 2019;

Pursuant to the Land Law dated November 29, 2013;

Pursuant to the Law on real estate trading dated November 25, 2014;

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

Pursuant to the Law on Investment dated June 17, 2020;

At the proposal of the Minister of Construction;

The Government promulgates a Decree on elaboration of certain articles of the Law on Real Estate Trading.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree elaborates certain articles and clauses of the Law on Real Estate Trading, including contents about organizations and individuals conducting real estate trading; types of sample contracts of real estate trading; transfer of lease purchase contracts of existing house/construction work; transfer of purchase/lease purchase contracts of off-the-plan houses and procedures for transfer of the whole or a part of real estate project.

Article 2. Regulated entities

1. Organizations and individuals conducting real estate trading in Vietnam.

2. Agencies, organizations, households and individuals in relation to real estate trading in Vietnam.

Article 3. Interpretation of terms

For the purposes of this Decree, the following terms shall be construed as follows:

1. Real estate to be put on the market refers to houses/construction works on land and types of land the land use rights thereof are permitted to be transferred, leased, or sublet as prescribed in Article 5 of the Law on Real Estate Trading 2014 (hereinafter referred to as the Law on Real Estate Trading).

2. Real estate project means a construction project that is formulated, appraised, and approved as per the construction law. Real estate projects include: projects on building houses and construction works; projects on building infrastructure to transfer or lease land use rights, in accordance with the provisions of law.

3. Contract for real estate trading is a written agreement between an enterprise or cooperative that is fully eligible for real estate trading as prescribed in Article 4 of this Decree and an organization, household, individual on the establishment, change, termination of rights and obligations in the activities of buying, selling, leasing, leasing with option to purchase houses and construction works, transfer, lease, sub-lease of land use rights, transfer of land use rights, transfer of the whole or part of a real estate project and with the forms prescribed in this Decree.

4. Transfer of the entire real estate project means that the investor transfers the entire real estate project and the lawful rights, obligations and interests of the investor and related parties (if any) in relation to that project to the transferee through a contract made in writing according to this Decree and approved by a competent authority.

5. Transfer of a part of a real estate project means that the investor transfers a part of a real estate project permitted to be put on market and the lawful rights, obligations and interests of the investor and related parties (if any) in relation to that transferred part of project to the transferee through a contract made in writing according to this Decree and approved by a competent authority.

6. Transfer of a contract for purchase/lease purchase of a house or construction work means the Tenant/Buyer transfers all rights, responsibilities, and obligations under the contract of purchase/lease purchase of the house or construction work to another organization or individual through a contract transfer document made in accordance with this Decree.

Chapter II

SPECIFIC PROVISIONS

Section 1. ELIBILITY REQUIREMENTS FOR REAL ESTATE TRADING

Article 4. Eligibility criteria for organizations and individuals to conduct real estate trading

1. Organizations and individuals shall meet the following criteria to conduct real estate trading:

a) They must establish an enterprise in accordance with the law on enterprises or a cooperative in accordance with the law on cooperatives, with a line of business in relation to real estate trading (hereinafter referred to as enterprise);

b) They must publicize on the enterprise's website, at the head office of the project management board (for projects on real estate trading and investment), at the real estate exchange (for the case of business through the real estate exchange) information about the enterprise (including name, address of head office, contact phone number, name of the legal representative), information about real estate to be put on market as prescribed in Clause 2, Article 6 of the Law on real estate trading, information on mortgage of houses, construction works, real estate projects to be put on market (if any), information on the number, type of real estate products being traded, quantity and types of real estate products sold, transferred, lease-purchased and the quantity and types of remaining products that are still being traded.

If any information that has been publicly at this point changes later, it must be promptly updated upon the change;

c) Trading of eligible real estate as prescribed in Article 9, Article 55 of the Law on real estate trading.

2. In case an investor is selected as the investor of a real estate project according to law, such investor must have an equity of not less than 20% of the total investment capital for the project with a land use scale of less than 20 hectares, not less than 15% of the total investment capital, for the project with a land use scale of 20 hectares or more. In performing real estate trading, the project investor must meet the eligibility criteria specified in Clause 1 of this Article.

The equity specified in this Clause is determined based on the results of the most recent audited financial statements or the results of independent audit reports of the operating enterprise (made in the year or preceding year); in case of a newly established enterprise, the equity shall be determined according to the actual contributed charter capital as prescribed by law.

Article 5. Organizations, households and individuals that sell, transfer, lease, lease-purchase real estate on a small scale and discontinuing operations

Organizations, households and individuals that sell, transfer, lease, lease-purchase real estate specified in Clause 2, Article 10 of the Law on real estate trading and are not required to meet the eligibility criteria specified in Article 4 of this Decree include:

1. Agencies and organizations that sell houses and construction works, transfer land use rights due to bankruptcy, dissolution, or division in accordance with law.

2. Agencies or organizations that sell, transfer, lease, lease-purchase real estate as public property in accordance with law.

3. Credit institutions, foreign bank branches, Asset Management Company (AMCs), Vietnam Asset Management Company (VAMCs) that sell houses, construction works, transfer land use rights, transfer real estate projects which are put up as guarantee or collateral for debt recovery in accordance with law.

4. Organizations, households and individuals that sell houses, construction works, transfer land use rights under decisions of courts or competent authorities when settling disputes, complaints, and whistleblowing reports.

5. Organizations, households and individuals that sell, lease, lease-purchase houses and construction works under lawful ownership, transfer, lease or sublease land use rights under their lawful land use rights.

6. Organizations, households, and individuals that sell, lease, lease-purchase or transfer real estate that is invested and constructed by themselves and this real estate is not for being put on market in accordance with the law.

Section 2. CONTRACT FOR REAL ESTATE TRADINGS AND TRANSFER THEREOF

Article 6. Contract for real estate trading

The sale, transfer, lease, lease purchase, sublease of real estate and transfer of real estate projects must be made into a contract according to the following forms:

1. Contract for sale, purchase, and lease-purchase of an apartment is specified in Form No. 01 of the Appendix issued together with this Decree.

2. Contract of sale, purchase, lease-purchase of tourist apartment, officetel is specified in Form No. 02 of the Appendix issued together with this Decree.

3. Contract for sale, purchase, and lease-purchase of detached houses specified in Form No. 03 of the Appendix issued with this Decree.

4. Contract for purchase, sale, lease purchase of house and other construction work other than those specified in Clauses 1, 2 and 3 of this Article specified in Form No. 04 of the Appendix issued together with this Decree.

5. Contract for lease of house or construction work specified in Form No. 05 of the Appendix issued with this Decree.

6. Contract for transfer of land use rights specified in Form No. 06 of the Appendix issued with this Decree.

7. Contract for lease or sublease of land use rights specified in Form No. 07 of the Appendix issued with this Decree.

8. Contract for transfer of the whole (or part) of the real estate project specified in Form No. 08 in the Appendix issued with this Decree.

Article 7. Conditions for transfer of contracts for purchase/lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works

1. The transfer of contracts for purchase/lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works do not apply to contracts for purchase/lease purchase of social housing.

2. The transfer of a contract for purchase or lease purchase of a house or construction work must satisfy the following conditions:

a) There is a contract for purchase or lease purchase made according to Article 6 of this Decree; in case the parties have signed a contract before the effective date of this Decree, the signed contract must be provided;

b) The applicant has not submitted an application to a competent authority for issuance of a Certificate of land use rights and ownership of houses and property on land (hereinafter referred to as the Certificate);

c) The contract for purchase or lease purchase of house or construction work must be free of disputes or litigation;

d) The house or construction work under the contract for purchase and lease purchase is not subject to distraint or mortgage to secure the performance of obligations as prescribed by law, unless otherwise agreed by the mortgage lender.

3. The contract for purchase or lease purchase of house or construction work shall be wholly transferred. In case of purchase or lease purchase of multiple houses/construction works in the same contract but the parties wish to transfer each house/construction work, the transferor shall agree with the investor to amend the contract for purchase or lease purchase of multiple house/construction work or sign a contract addendum before transferring the contract as per this Decree.

Article 8. Procedures for transfer of contracts for purchase/lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works

1. Procedures for transferring a contract for purchase of off-the-plan house must comply with the housing law.

2. Procedures for transfer of a contract for lease purchase of off-the-plan houses and for transfer of a contract for lease purchase of existing house or construction work:

a) The transferor and the transferee agree to make a contract transfer document using Form No. 09 of the Appendix to this Decree.

The contract transfer document must be made in 06 copies (02 copies are kept by the project investor, 01 copy is submitted to the tax authority, 01 copy is submitted to the certificate-receiving agency, 01 copy is kept by the transferor, 01 copy is kept by the transferee; in case the contract transfer document must be notarized, an additional 01 copy must be kept at a notarial practice organization.

If the transferor is an enterprise engaged in the real estate trading, it is not required to notarize the transfer, unless the parties so request;

b) One of the parties shall apply to the notarial practice organization for notarization of the contract transfer document. The application for notarization includes: originals of the contract transfer document; the original of the contract firstly signed with the project investor, in case of transferring one or several houses and construction works out of the total number of houses and construction works that have been leased purchase under the contract, the original contract or contract addendum showing the transferred house or construction work signed with the investor must be submitted; documents proving the amount of money the transferor has paid to the project investor; the original or a certified true copy of the record of handover of the house or construction work (if any) and other documents as prescribed by the notarization law;

c) After notarization (except for exemption from notarization), the transferor and transferee are responsible for paying taxes, fees and charges related to the contract transfer in accordance with law;

d) After implementing the provision of Point c of this Clause, either the transferor or the transferee shall request the investor in writing to certify the contract transfer, including: 06 originals of the contract transfer document enclosed with the original of the contract; in case of transferring one or several houses and construction works out of the total number of houses and construction works that have been leased purchase under the contract, the original contract or contract addendum showing the transferred house or construction work signed with the investor must be submitted; documents proving that the tax(es) has/have been paid or exempted according to tax law;

dd) Within 05 working days from the date of receipt of the documents specified at Point d of this Clause, the investor of the real estate project is responsible for reviewing and certifying the contract transfer document and not collecting any fees. After certifying the contract transfer documents, the investor keeps 02 originals of the contract transfer document and returns to the applicant 04 contract transfer documents together with the documents received in accordance with Point d of this Clause;

e) From the date on which the contract transfer document is certified by the investor, the contract transferee may continue to perform the rights and obligations of the tenant/buyer to the investor according to the signed contract and the contract transfer document;

g) In cases where the contract is transferred from the second time onward, the transferor must comply with the procedures specified in this Article.

h) The last transferee of contract is granted a Certificate by a competent authority in accordance with the law on land.

3. For a real estate enterprise that receives a contract transfer, within a maximum of 5 days from the date of completion of the transfer specified at Point dd, Clause 2 of this Article, it must send a written notice of transfer receipt (including the name and address of the real estate project, the name of the enterprise transferring the contract, the number of contracts, the number of houses and construction works under the transfer contract) to the central housing management authority for consolidation and monitoring.

Section 3. TRANSFER OF THE WHOLE (OR A PART) OF REAL ESTATE PROJECT

Article 9. Rules for transfer of the whole (or a part) of real estate project

1. The transfer of the whole or a part of a real estate project shall be effected when all the conditions specified in Article 49 of the Law on real estate trading are satisfied and shall be applied in case the project is being executed in conformity with the approved project schedule and contents.

2. For real estate projects specified below, the transfer shall be carried out in accordance with the law on investment:

a) Real estate projects approved by investors according to the Law on Investment 2020;

b) Real estate projects that are granted investment registration certificates in accordance with the Law on Investment 2020.

3. Real estate projects not specified in Clause 2 of this Article shall be transferred in accordance with the Law on real estate trading and this Decree.

Article 10. Application for transfer of the whole (or a part) of real estate project

1. An investor's application for transfer of the whole or part of a real estate project includes:

a) Application form for transfer of the whole (or part) of the real estate project specified in Form No. 10 in the Appendix issued with this Decree;

b) Draft contract for transfer of the whole (or part) of the real estate project specified in Form No. 6 in the Appendix issued with this Decree;

c) Documents (copies with originals for comparison, or notarized/authenticated copies) in relation to the real estate project to be transferred, including: decision or approval for investment policy, or investment permit or approval for investment issued by a competent authority; decision for approval of project; 1/500 detailed plan or master plan drawing; documents proving completion of project site clearance; documents proving that the construction of corresponding technical infrastructure works has been completed according to the schedule stated in the project (for the case of transfer of the entire project on infrastructure construction); certificate for the project;

d) A report on the execution of the real estate project up to the time of transfer using the form specified in Form No. 12 of the Appendix issued with this Decree.

2. A transferee's application for transfer of the whole or part of a real estate project includes:

a) Application form for receipt of the whole (or part) of the real estate project specified in Form No. 11 in the Appendix issued with this Decree;

b) Certificate of enterprise registration or certificate of investment registration or documents proving the establishment of the organization (a copy with the original for comparison or a notarized/authenticated copy);

c) Documents proving financial capacity and sources of funds to be raised (if any) in accordance with the law to ensure the continued implementation of the project according to the schedule approved by the competent authority; for real estate enterprise that receive the transfer, they must have documents proving their financial capacity specified in Clause 2, Article 4 of this Decree.

Article 11. Procedures for transferring the whole or a part of a real estate project under the investment decision of the People's Committee of the province (decision on investment policy, investment decision, investment approval)

1. The project investor shall submit 01 set of application in person or by post as prescribed in Article 10 of this Decree to the People's Committee of the province where the project is located or the housing authority of the province (if authorized by the People's Committee of the province).

2. The agency assigned for appraisal shall seek the appraisal opinions and appraise the transfer documents as prescribed in Article 13 of this Decree; request the People's Committee of province to consider the approval for the transfer; the form of decision for transfer approval No. 13 in the Appendix hereto. The time for seeking appraisal opinions, conducting appraisal, and granting a decision for transfer approval is 30 days after receiving a duly completed application. If the application is not complete with documents as prescribed, the investor must supplement the documents as prescribed; the time for supplementing documents is not included in the processing time.

In case the whole or a part of a real estate project is ineligible for transfer, the receiving authority must notify the project investor in writing of the reason.

3. Within a maximum of 30 days from the date of issuance of the decision to permit the transfer of the whole or a part of the real estate project, the transferor and the transferee must complete the signing of a transfer contract using the Form No. 08 of the Appendix issued together with this Decree and complete the handover of the whole or the part of the project to be transferred. The contract for transfer of the whole or a part of the real estate project, is concurrently the contract for the transfer of the land use right of the whole or a part of the real estate project, except for the case of land lease with the payment of annual land rents.

4. After signing the transfer contract, the parties are responsible for paying taxes and fees as prescribed by law. The transferor is responsible for handing over the entire documents of the whole or a part of the real estate project to the transferee, the handover must be made in writing with signatures of the parties. The transferee is entitled to continue implementing the whole or a part of the real estate project immediately after fulfillment of obligations to pay the taxes and fees and receive the whole or a part of the real estate project.

5. At least 15 days before handover procedures, the transferor of the whole or a part of the real estate project must notify all customers and related parties (if any) in writing of such handover and post it on a local newspaper or on a local television station or a central television station about the transfer of the project or the part of the project. In case the customer or related parties have opinions about their interests related to the whole or a part of the real estate project to be transferred, the transferor is responsible for resolving it in accordance with the law before carrying out the procedures for handover of the whole or a part of the real estate project.

6. After signing the transfer contract, in the case of transfer of the whole or a part of the real estate project associated with land use rights, the parties must carry out procedures for land-use change registration according to law; in case of transfer of the whole or a part of the real estate project associated with the land with annual rent payment, one of the parties shall request a competent authority to appropriate the land to lease the land in accordance with the land law.

7. The People's Committee of province shall publicly announce the decision to permit the transfer of the whole or a part of real estate project on the web portal of the People's Committee of province or housing authority of province where the project is located and send this decision to the Ministry of Construction for consolidation and monitoring; the transferor and transferee must publicly announce this decision on their website.

Article 12. Procedures for transferring the whole or a part of a real estate project under the investment decision of the Prime Minister (decision on investment policy, investment decision, investment approval)

1. The investor of the real estate project shall submit 01 set of application in person or by post as prescribed in Article 10 of this Decree to the People's Committee of the province where the project is located.

2. Within 45 days from the date of receipt of complete and valid application, the People's Committee of province shall seek appraisal opinions from relevant ministries and agencies as prescribed in Article 13 of this Decree and request the Prime Minister to consider and grant an approval for the transfer; in case the whole or the part of the real estate project is ineligible for transfer, the People's Committee of the province must provide the project investor with explanation in writing.

3. After receiving an approval for transfer from the Prime Minister, the parties shall comply with Clauses 3, 4, 5 and 6, Article 11 of this Decree.

4. The People's Committee of province where the transferred whole or part of the project is located shall comply with Clause 7 Article 11 of this Decree.

Article 13. Seeking appraisal opinions and appraising documents on transfer of the whole (or a part) of real estate project

1. The agency assigned for appraisal prescribed in Articles 11 and 12 hereof shall send 01 set of application specified in Article 10 hereof in person or by post to the relevant agencies to seek appraisal opinions in writing concerning the transfer of the whole (or a part) of real estate project as follows:

a) In case of transfer of the whole or part of a project specified in Article 11 of this Decree, the agency assigned for appraisal must seek appraisal opinions from the agencies involved in the transferred project or part of project from the local government; the time limit for sending application and getting appraisal opinions from relevant agencies is 15 days from the date of receipt of complete and valid application;

b) In case of transfer of all or part of a project subject to the Prime Minister's approval, the People's Committee of the province must obtain appraisal opinions from the Ministry of Construction and ministries and agencies relevant to the transferred project or part of the project; the time limit for sending application and getting appraisal opinions from relevant agencies is 15 days from the date of receipt of complete and valid application;

c) In case the transferee is a foreign-invested enterprise and the transferred project or part of the project is located in a commune, wards, township of border, coastal area, or island, the agency assigned for appraisal shall further seek appraisal opinions from the Ministry of National Defense and the Ministry of Public Security in relation to national defense and security.

2. Checklist for appraisal of application for transfer of the whole or a part of real estate project includes:

a) Compliance with business principles, real estate transfer, real estate project and prohibited acts as prescribed in Articles 4, Article 8, Article 48 of the Law on real estate trading and regulations of this Decree;

b) The documents in the application for transfer specified in Article 10 of this Decree;

c) Eligibility criteria for the transferred real estate project or part of the project as prescribed in Clause 1, Article 49 of the Law on real estate trading; in case the transferor or transferee of the project is a state-owned enterprise, additional conditions must be determined in accordance with the law on management and use of state capital invested in production and business at the enterprise;

d) Eligibility criteria for the transferor and transferee as prescribed in Clauses 2 and 3, Article 49 of the Law on real estate trading and Article 4 of this Decree;

dd) Rights and obligations of the transferor and transferee as prescribed in Article 52 of the Law on real estate trading and the lawful rights and interests of related parties (if any).

3. On the basis of appraisal opinions of relevant agencies specified in Clause 1 of this Article on the checklist specified in Clause 2 of this Article and opinions of the Ministry of National Defense and the Ministry of Public Security (if any), the agency assigned for appraisal shall report to the competent authority to consider approving the transfer of the whole or part of the project under Article 11 or Article 12 of this Decree. 

Chapter III

IMPLEMENTATION

Article 14. Transitional provisions

1. In case where a contract for real estate trading has been signed before the effective date of this Decree, the contract is not required to be re-signed in accordance with this Decree, unless the parties agree to re-sign the contract in accordance with this Decree.

2. In case the parties are carrying out the procedures for signing a contract for sale, purchase, and lease-purchase of a house or construction work, but by the effective date of this Decree, the parties have not yet signed the contract, they must sign the contract in accordance with this Decree.

3. In case the parties are carrying out procedures for transfer of a lease-purchase contract of off-the-plan house, lease-purchase contract of existing house or construction work but by the effective date of this Decree, the parties have not completed the transfer procedures, they may continue to carry out the remaining procedures in accordance with this Decree.

4. In case the transfer of the whole or part of a real estate project is in progress, but by the effective date of this Decree, there has been a decision on approval for the transfer of the competent authority and the parties have not signed the transfer contract, the contract must be signed in accordance with this Decree.

5. In case the application for transfer of the whole or part of a real estate project has been submitted before the effective date of this Decree, but the competent authority has not issued a decision to permit the transfer, the parties are not required to re-conduct the previous procedure, but the missing documents must be supplemented in accordance with this Decree (if any) in order to be considered and decided by the competent authority in accordance with this Decree.

6. Enterprises and cooperatives that are engaged in real estate trading are responsible for fully meeting the eligibility criteria specified in Article 4 of this Decree within 06 months from the effective date of this Decree. Upon expiry of the time limit specified in this Decree, if the above enterprises and cooperatives fail to meet sufficient eligibility criteria as prescribed, they are not allowed to conduct real estate trading in accordance with this Decree and relevant laws.

7. In case a Vietnamese citizen has been granted a chip-based citizen identity card with a personal identification number according to the Law on citizen identification and the national population database, the investment registration database, and the enterprise registration database are connected and operated, the database as a substitute for documents related to personal identity (household registration, people's identity card, passport and other personal identification documents) can be used when carrying out procedures related to real estate and housing business in accordance with the law on real estate trading and housing law.

Article 15. Implementation

1. Responsibilities of the Ministry of Construction:

a) Guide, monitor and urge the implementation of the Law on real estate trading and this Decree;

b) Give appraisal opinions about the transfer of the whole or part of real estate projects in accordance with this Decree and relevant laws;

c) Take charge and cooperate with relevant agencies in working on and promulgating according to their competence or submitting to competent authorities for promulgation of legal documents on real estate trading;

d) Take charge or coordinate with relevant agencies in inspecting, examining, and handling violations in the field of real estate trading in accordance with law;

dd) Perform other tasks specified in the Law on real estate trading, this Decree or as assigned by the Government or the Prime Minister.

2. Relevant ministries and agencies are responsible for guiding, urging, and implementing the Law on real estate trading and this Decree within the scope, functions, and assigned tasks.

3. Responsibilities of the People's Committees of provinces and centrally affiliated cities:

a) Organize and direct the implementation of the Law on real estate trading and this Decree in the provinces/cities; direct the local housing authority and relevant local agencies to inspect the signing of contract for real estate trading in the provinces/cities according to this Decree;

b) Decide the transfer of the whole or part of the real estate project in accordance with this Decree; appraise and submitting application for transfer of the whole or part of real estate projects under the competence of the Prime Minister;

c) Organize or direct the inspection, examination, and handling of violations in the field of real estate trading according to their competence and according to law;

d) Send biannual or ad-hoc reports on the real estate trading and real estate market in the provinces/cities to the Ministry of Construction for the Ministry of Construction to summarize and report to the Government and Prime Minister;

dd) Perform other tasks specified in the Law on real estate trading, this Decree or as assigned by the Government or the Prime Minister.

Article 16. Entry in force

1. This Decree comes into force as of March 1, 2022.

2. This Decree supersedes the Government's Decree No. 76/2015/ND-CP dated September 10, 2015 on guidelines for the Law on real estate trading.

3. From the effective date of this Decree, regulations on eligibility criteria for organizations and individuals trading in real estate, the making and signing of contract for real estate trading, and the transfer of contracts for purchase, lease-purchase of off-the-plan houses, lease-purchase of existing houses, construction works, the transfer of the whole or part of real estate projects specified in the Government's Decrees, Decisions of the Prime Minister, legal documents promulgated by ministries, agencies and the People's Committees of provinces before the effective date of this Decree governed by this Decree shall comply with this Decree.

4. The Ministers, the Heads of ministerial-level agencies of the People's Committees of the provinces and centrally affiliated cities, and the heads of the relevant agencies shall implement this Decision./.

APPENDIX

 (Issued together with Decision No. 02/2022/ND-CP dated January 6, 2022 of the Government)