Circular No. 13/2008/TT-BXD guiding the implementation of certain contents of Decree No. 153/2007/NĐ-CP dated October 15, 2007 of the Government detailing and guiding the implementation of the Law on Real Estate Business.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 153/2007/NĐ-CP dated October 15, 2007, of the Government detailing and guiding the implementation of the Law on Real Estate Business

WHEREAS, Decree No. 17/2008/NĐ-CP dated February 4, 2008 of the Government stipulates the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Pursuant to Decree No. 153/2007/NĐ-CP dated October 15, 2007 of the Government detailing and guiding the implementation of the Law on Real Estate Business;

Pursuant to Decree No. 13/2008/NĐ-CP dated February 4, 2008, of the Government stipulating the organization of specialized agencies under provincial people's committees and municipal people's committees directly under the central government;

The Ministry of Construction provides guidelines for certain specific contents as follows:

Part I

GUIDELINES FOR THE PROCEDURE AND PROCEDURES FOR CONFIRMING CAPITAL

IN REAL ESTATE BUSINESS

1. Procedure and procedures for confirming the minimum capital when establishing a real estate business enterprise or supplementing real estate business activities of an enterprise (as provided for in Clause 2, Article 3 of Decree No. 153/2007/NĐ-CP dated October 15, 2007, of the Government detailing and guiding the implementation of the Law on Real Estate Business, hereinafter referred to as Decree No. 153/2007/NĐ-CP):

Enterprises and cooperatives engaged in real estate business that are newly established or enterprises and cooperatives currently operating (hereinafter referred to as enterprises) which have the need to supplement real estate business activities, in addition to the documents required under the regulations on business registration procedures, must also submit a document confirming the capital to the agency responsible for business registration to process the issuance of a business registration certificate or the supplementation of real estate business activities according to the following procedures:

1.1. For newly established enterprises, the documents confirming the minimum capital include:

1.1.1. Minutes of the capital contribution of the founding shareholders for joint-stock companies or of the founding members for limited liability companies (LLCs) with two or more members; decision on capital transfer by the owner for LLCs with one member where the owner is an organization; the investment capital registration form of the owner for private enterprises and for LLCs with one member where the owner is an individual;

1.1.2. In cases where the capital contribution is made in cash, there must be a confirmation letter from a commercial bank permitted to operate in Vietnam regarding the amount of deposit of the founding members. The minimum deposit amount must equal the cash contribution of the founding members and can only be disbursed after the enterprise has been issued a business registration certificate;

1.1.3. In cases where the capital contribution is made in assets, there must be a valuation certificate from an organization with valuation functions operating in Vietnam regarding the result of valuing the assets contributed. The certificate must still be valid as of the date of submission of the documents at the business registration agency.

1.2. For enterprises currently operating that have the need to supplement real estate business activities, the documents confirming the minimum capital must include a confirmation letter from an independent auditing organization regarding the level of capital currently owned by the enterprise recorded in the financial statements of the enterprise at the latest point in time (registration year or the year immediately preceding the registration year) ensuring it is greater than or equal to the minimum capital as prescribed in Decree No. 153/2007/NĐ-CP (VND 6 billion). 1.3. During the course of operation, real estate business enterprises must maintain the registered capital at a level not lower than the minimum capital (including enterprises that have already obtained a business registration certificate for real estate business before Decree No. 153/2007/NĐ-CP took effect).

1.4. Organizations and individuals directly confirming the minimum capital shall jointly bear responsibility for the accuracy and honesty of the capital at the time of confirmation.

2. Procedure and procedures for confirming the capital owned by the project investor when registering to implement new urban area projects, residential area projects, and industrial zone infrastructure projects

(as provided for in Article 5 of Decree No. 153/2007/NĐ-CP) 2.1. The capital owned by the project investor is the actual capital of the project investor up to the year immediately preceding the year in which the project investor implements the project, determined through the enterprise's financial report, confirmed by an independent auditing organization.

2.2. For project investors who are newly established enterprises, the actual capital is determined as follows:

2.2.1. For the portion of the capital that is Vietnamese dong or foreign currency, it must be confirmed by the commercial bank where the enterprise has its account regarding the balance of deposits of the enterprise. The confirmation period must be within thirty (30) days from the date of submission of the project approval application;

2.2.2. For the portion of the capital that is assets, there must be a valuation certificate from an organization with valuation functions operating in Vietnam regarding the result of valuing the enterprise's assets. The certificate must remain valid until the date of submission of the project approval application.

2.3. For project investors of new urban area projects, residential area projects, and industrial zone infrastructure projects, they must meet the level of capital investment owned by themselves as prescribed in Clause 1, Article 5 of Decree No. 153/2007/NĐ-CP, specifically: 2.3.1. The level of capital investment owned that the project investor must meet is based on the total investment cost of each project. The total investment cost of the project is determined according to the provisions of the laws on investment cost management;

2.3.2. In cases where the project investor already has land use rights, the land for the project has been compensated and cleared, and the project investor is a first-level investor (only investing in infrastructure), then in the total investment cost of the project, only the capital investment in technical infrastructure works will be counted, excluding land use costs; compensation and clearance costs; construction costs of other buildings.

GUIDELINES FOR CERTAIN CONTENTS REGARDING THE TRANSFER OF ENTIRE PROJECTS

The transfer of entire new urban area projects, residential area projects, and industrial zone infrastructure projects

Part II

(as provided for in Articles 6, 7, 8, and 9 of Decree No. 153/2007/NĐ-CP)

1. Authority to approve the transfer of entire projects: 1.1. The competent state agency approving the project investment is the agency approving the transfer of the entire project. shall be implemented as follows:

1. Authority to permit the transfer of the entire project:

1.1. The state agency authorized to permit investment in the project shall be the agency authorized to permit the transfer of the entire project.

1.2. Prior to issuing a decision to permit the transfer of the entire project, the application file for transferring the project must be reviewed by the specialized unit under the authority granting permission to transfer. The lead unit responsible for reviewing the project shall send the file to seek opinions from relevant agencies. For projects approved for investment by the Prime Minister, the provincial People's Committee shall organize the review and seek opinions from relevant ministries and sectors before submitting for the Prime Minister's consideration and decision.

2. Procedures and formalities for transferring the entire project:

2.1. The application file for transferring the entire project shall be submitted to the provincial lead review agency where the project is located (for new urban area projects and housing projects, the provincial lead review agency is the Department of Construction; for industrial infrastructure projects, the provincial lead review agency is designated by the Chairman of the provincial People's Committee).

2.2. The provincial lead review agency shall be responsible for reviewing the transfer application file within thirty working days from the date of receipt of all necessary documents.

2.3. After completing the review, the provincial lead review agency shall submit to the provincial People's Committee for issuance of a decision permitting the transfer of the project within its authority, or submit to the Prime Minister for consideration and decision.

3. Documents required for the application to transfer the entire project include:

3.1. A request for transfer of the project by the original project investor (Annex 1).

3.2. Investment approval documents from the competent state agency; approved project files; project approval decisions; land lease contracts or land allocation decisions or land use right certificates; files of the new project investor.

3.3. Report on the implementation process of the project up to the transfer time.

3.4. Files of the new project investor, including:

3.4.1. Business registration with real estate trading functions.

3.4.2. Commitment of the new project investor upon receiving the transfer, including responsibilities to fulfill obligations to the State and customers that were committed by the original project investor (Annex 2).

3.4.3. Documentation confirming the financial capacity of the new project investor as stipulated in Point 2, Part I of this Circular.

4. Content of the review of the application to transfer the entire project includes:

4.1. Reasons for transfer.

4.2. Conditions for the project to be eligible for transfer.

4.3. Conditions regarding the capacity of the new project investor.

4.4. Implementation plan of the project by the new project investor.

5. Procedures for handover between the original project investor and the new project investor:

5.1. Within the latest thirty (thirty) days from the date of the decision permitting the transfer issued by the competent authority, the new project investor and the original project investor must sign the project transfer agreement (Annex 3) and complete the project handover. The new project investor is responsible for continuing to implement the project immediately after taking over.

5.2. The original project investor shall hand over all project files to the new project investor, accompanied by a handover record and a list of documents. The handover of land boundary markers of the project on-site shall be carried out in accordance with the provisions of the Land Law.

5.3. Before proceeding with the handover procedures, the original project investor must notify in writing all customers (if any) and announce in mass media at least fifteen days prior (at least three consecutive issues of a local newspaper, one local or central television station, and the website (if available) of the provincial lead review agency where the project is located) about the project transfer and customer rights.

Part III

GUIDELINES ON REAL ESTATE TRADING THROUGH EXCHANGES

REAL ESTATE TRADING

Real estate businesses must conduct sales, transfers, leases, and lease purchases of real estate through real estate exchanges (except for social housing projects under the Housing Law) according to the following regulations:

1. Real estate must meet the conditions prescribed by law before being sold, transferred, leased, or lease purchased.

2. Project investors may establish their own exchange or choose an exchange established by another entity to introduce real estate and conduct real estate transactions.

3. Real estate exchanges must publicly disclose information (as stipulated in Point 2, Part IV of this Circular) about real estate for sale, transfer, lease, or lease purchase at the exchange so that customers can know and register for transactions. The minimum public disclosure period is seven (seven) days at the Exchange. During this period, information about the project name, type, quantity of real estate, location, and time of organizing the sale, transfer, lease, or lease purchase of real estate must be published in at least three (three) consecutive issues of a local newspaper, at least once on a local television station where the project is located, and on the website (if available) of the real estate exchange. The cost of publishing information shall be borne by the project investor (or the owner).

4. When the public disclosure period specified in Point 3 of this Section expires, the project investor (or the authorized real estate exchange) may organize the sale, transfer, lease, or lease purchase of the disclosed real estate. In cases where there are two (two) or more customers registering for the same type of real estate or the number of registered customers exceeds the quantity of real estate, the project investor (or the authorized real estate exchange) must select customers through a lottery or auction method. Advance deposits before implementing the lottery or auction of real estate shall be agreed upon by the parties in accordance with the law.

5. Auctions of real estate at exchanges shall be conducted in accordance with the laws on selling assets through auctions.

6. Real estate exchanges shall be responsible for certifying real estate of real estate businesses traded through the exchange (according to the model in Annex 4) to confirm that the real estate has been traded in compliance with the law.

7. For real estate of organizations or individuals not engaged in real estate business but traded through real estate exchanges, it is not mandatory to publicly disclose information as required in Point 3 of this Section.

Part IV

GUIDELINES ON SOME CONTENTS REGARDING REAL ESTATE EXCHANGES

1. Organizational model and operation of real estate exchanges

1.1. A real estate trading floor must be a legal entity with the function of operating real estate service businesses. In cases where a real estate business establishes a real estate trading floor, such trading floor must have its own legal status or utilize the legal status of the existing enterprise to operate.

1.2. In addition to providing services related to buying, selling, transferring, leasing, lease-purchase, and brokerage of real estate, a real estate trading floor may also provide one, several, or all of the following services:

1.2.1. Real estate valuation;

1.2.2. Real estate advisory;

1.2.3. Real estate advertising;

1.2.4. Auctioning of real estate;

1.2.5. Real estate management.

1.3. The organizational structure of a real estate trading floor includes a director, deputy directors, and specialized departments appropriate to the content of the trading floor's activities.

1.4. The person managing and operating a real estate trading floor must meet the conditions stipulated in Article 21 of Decree 153/2007/NĐ-CP.

1.5. A real estate trading floor must have at least two real estate brokers holding real estate brokerage certificates. If it provides real estate valuation services, it must have at least two employees engaged in real estate valuation holding real estate valuation certificates issued by competent authorities.

1.6. A real estate trading floor must have a minimum usable area of 50 square meters for brokerage and transaction activities, plus an additional 20 square meters for each supplementary service activity, while ensuring appropriate equipment for the nature of the activities.

1.7. A real estate trading floor must have a name, signboard, and a stable transaction address for a minimum period of one year (12 months). Any changes to the transaction location must be reported to the local state management agency and customers currently transacting. Before commencing operations, the real estate trading floor must submit registration documents and operational regulations to the local Construction Department. The local Construction Department is responsible for reporting to the Ministry of Construction for unified management and listing on the website of the Vietnam Real Estate Trading Floor Network.

1.8. A real estate trading floor must have operational regulations including the following basic contents:

1.8.1. Provisions regarding the functions, tasks, and powers of the real estate trading floor;

1.8.2. Provisions regarding the organizational structure and operation of the departments within the real estate trading floor;

1.8.3. Provisions regarding the financial management system of the real estate trading floor;

1.8.4. Provisions regarding relationships with customers during transactions;

1.8.5. Provisions regarding real estate information for transactions; management and provision of real estate information and transactions at the real estate trading floor.

1.9. Real estate introduced and traded at a real estate trading floor must comply with the conditions stipulated in Articles 6 and 7 of the Law on Real Estate Business and must fully disclose real estate information according to Clause 2 of this Section.

1.10. Real estate trading floor service activities must be carried out through contracts.

1.11. The rights and obligations of organizations and individuals participating in a real estate trading floor shall be implemented in accordance with Article 62 of the Law on Real Estate Business.

1.12. Individuals conducting independent real estate brokerage services must hold a real estate brokerage certificate and must register their business in accordance with the law on business registration.

2. Guidance on some contents of real estate information as prescribed in Article 11 of the Law on Real Estate Business

2.1. Information about real estate for sale must be complete as prescribed in Article 11 of the Law on Real Estate Business.

2.2. Information about the type of real estate:

2.2.1. For residential property, it must clearly specify whether it is a standalone house or an apartment. If it is a standalone house, it must specify whether it is a villa, attached house, or garden house..

2.2.2. For service real estate, it must clearly specify whether it is an office, shop, supermarket, market, hotel, guesthouse, or dormitory..

2.2.3. For industrial real estate, it must clearly specify whether it is an industrial zone infrastructure or factory, warehouse, storage area..

2.2.4. For land use rights, it must clearly specify whether it is non-agricultural land (residential land, industrial zone land, production and business land...), agricultural land, or other types of land (if applicable).

2.3. Information about the location of real estate:

2.3.1. For real estate in urban areas with a specific address, it must clearly specify the house number, alley, lane (alley), street, district (county), city (province). For apartments, it must specify the specific apartment number, floor, and block (lot) of the apartment building. For rural areas, it must clearly specify the address of the real estate according to the village, hamlet, commune, district, province;

2.3.2. For real estate without a specific address (where administrative units have not been established), it must specify the project name, plot code (for individual houses or other construction projects), apartment code (for apartments).

2.4. Information about the scale and area of real estate:

2.4.1. For standalone residential property, it must clearly specify: land plot area, construction area, number of floors, total floor area; for apartment buildings, it must specify the total number of apartments, floor area of each apartment, number of rooms..

2.4.2. For other real estate, it must clearly specify: land plot area, number of floors, total floor area, common usage area, capacity (if applicable);

2.4.3. For industrial zone infrastructure, it must clearly specify: total area of the industrial zone, construction density, public land area (common usage), area of each plot..

2.4.4. Master plan drawings, floor plans (if available).

2.5. Information about the characteristics, nature, functional use, and quality of real estate:

2.5.1. Regarding characteristics and nature, it must clearly specify the construction structure, foundation, frame, walls, floors, roof;

2.5.2. Functional use of real estate should be informed according to the initial design;

2.5.3. Quality of real estate must specifically mention the year of construction, grade, and category of the project;

2.5.4. Photographs of the entire view of the project at the time of introduction (if available).

2.6. Information about the rights and interests of third parties related to ownership rights, usage rights, benefits, rental status, mortgage, loan, temporary residence (if applicable).

(Sample real estate introduction form at Appendix 5).

Part V

GUIDELINES FOR ISSUING REAL ESTATE BROKERAGE AND APPRAISAL CERTIFICATES

AND MANAGING REAL ESTATE BROKERAGE AND APPRAISAL ACTIVITIES

1. Procedures and formalities for issuing real estate brokerage and appraisal certificates

1.1. Individuals applying for new or renewed real estate brokerage or appraisal certificates shall submit their applications (according to the model at Appendix 6 of this Circular) to the Department of Construction where the training institution is located or where the applicant resides (permanent or long-term temporary residence).

1.2. Prior to issuing real estate brokerage or appraisal certificates, the Department of Construction must conduct an examination of the certificate application files, including:

1.2.1. Reviewing the individual's eligibility for obtaining the certificate (must comply with the provisions of Clause 1, Article 14 of Decree 153/2007/NĐ-CP for real estate brokerage certificates and Clause 1, Article 15 of Decree 153/2007/NĐ-CP for real estate appraisal certificates);

1.2.2. Examining the contents of the registration file (must comply with the provisions of Clause 2, Article 14 of Decree 153/2007/NĐ-CP for real estate brokerage certificates and Clause 2, Article 15 of Decree 153/2007/NĐ-CP for real estate appraisal certificates).

1.3. The results of the examination must be documented in writing (according to the guidance model at Appendix 7 of this Circular).

1.4. The Director of the Department of Construction decides on the list of individuals who will be issued certificates (according to the model at Appendix 8 of this Circular); organizes printing, distribution, and signing of the certificate issuance decisions for each individual according to the guidance models at Appendices 4 and 5 issued together with Decision 29/2007/QĐ-BXD dated December 31, 2007 of the Minister of Construction.

1.5. The Department of Construction is responsible for retaining the files and compiling lists of individuals granted Real Estate Brokerage Certificates and Real Estate Appraisal Certificates. Annually (or at any time upon request), the Department of Construction is responsible for reporting the results of granting Real Estate Brokerage and Appraisal Certificates to the Ministry of Construction (according to the model at Appendix 9) to compile a national list of individuals granted such certificates and publish it on the website of the Vietnam Real Estate Trading Floor Network.

2. Management of real estate brokerage and appraisal activities

2.1. The Department of Construction is the state management agency at the local level for real estate brokerage and appraisal activities within its jurisdiction.

2.2. The content of managing real estate brokerage and appraisal activities includes managing training and enhancing knowledge about real estate brokerage and appraisal, managing and operating real estate trading floors; issuing real estate brokerage and appraisal certificates; managing the activities of real estate brokerage offices; inspecting, supervising, and handling violations in real estate brokerage and appraisal activities.

2.3. Training institutions for real estate brokerage and appraisal knowledge and management of real estate trading floors must notify the local Department of Construction in writing (according to the model at Appendix 10) before conducting training and enhancement programs for unified management.

Part VI

EFFECTIVE DATE

1. This Circular takes effect fifteen days from the date of publication in the Official Gazette.

2. Provincial People's Committees and municipal people's committees directly under the central government are responsible for directing the Department of Construction and related agencies within their authority to implement the provisions of the Law on Real Estate Business, Decree 153/2007/NĐ-CP dated October 15, 2007 of the Government detailing and guiding the implementation of the Law on Real Estate Business, and the provisions of this Circular.

During the implementation process, if difficulties or obstacles arise, localities are requested to promptly report to the Ministry of Construction for coordination in resolution within their authority or to submit to the Prime Minister for consideration and decision./.