Decree No. 76/2015/NĐ-CP detailing the implementation of certain provisions of the Law on Real Estate Business

DECREE

Implementing detailed provisions of certain articles of

Law on Real Estate Business

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

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

At the proposal of the Minister of Construction,

At the proposal of Issuing a Decree detailing the implementation of certain Articles of the Law on Real Estate Business.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree details certain Articles and Clauses of the Law on Real Estate Business, including contents regarding the conditions for organizations and individuals engaging in real estate business; types of model contracts in real estate business; transfer of lease-purchase house contracts and ready-built construction projects; transfer of purchase-sale and lease-purchase contracts of future residential properties; and procedures for transferring all or part of a real estate project.

Article 2. Applicability

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

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

Chapter II

SPECIFIC PROVISIONS

Section 1

CONDITIONS FOR ORGANIZATIONS AND INDIVIDUALS ENGAGING IN REAL ESTATE BUSINESS

Article 3. Conditions for organizations and individuals engaging in real estate business

1. Organizations and individuals engaging in real estate business must establish a business enterprise in accordance with the laws on enterprises or a cooperative in accordance with the laws on cooperatives (hereinafter referred to collectively as a business enterprise) and must have a minimum statutory capital of not less than 20 billion VND, except for the following cases:

a) Organizations, households, and individuals selling, transferring, leasing, or lease-purchasing small-scale real estate transactions that are not regular as stipulated in Article 5 of this Decree;

b) Organizations and individuals providing real estate services as stipulated in Chapter IV of the Law on Real Estate Business.

2. Enterprises engaging in real estate business subject to the statutory capital requirement as stipulated in Clause 1 of this Article shall be responsible for the truthfulness and accuracy of their statutory capital.

Article 4. Basis for determining the statutory capital level of real estate business enterprises

The statutory capital level stipulated in Article 3 of this Decree is determined based on the registered charter capital of the enterprise or cooperative in accordance with the laws on enterprises and cooperatives. Enterprises and cooperatives are not required to go through registration procedures to confirm their statutory capital level.

Article 5. Organizations, households, and individuals selling, transferring, leasing, or lease-purchasing real estate as stipulated in Clause 2, Article 10 of the Law on Real Estate Business

Organizations, households, and individuals selling, transferring, leasing, or lease-purchasing real estate as stipulated in Clause 2, Article 10 of the Law on Real Estate Business are not required to establish a real estate business enterprise, including:

1. Organizations, households, and individuals selling, transferring, leasing, or lease-purchasing real estate without investing in a real estate project for business purposes, and the case where households and individuals sell, transfer, lease, or lease-purchase real estate from a real estate project for business purposes but the total investment of the project is under 20 billion VND (excluding land use fees).

2. Organizations transferring land use rights, selling houses, and construction projects due to bankruptcy, dissolution, or division.

3. Financial institutions, foreign bank branches, asset management companies of financial institutions (AMC), Vietnamese asset management companies of financial institutions (VAMC), and other organizations and individuals transferring land use rights, transferring real estate projects, selling houses, and construction projects under guarantee or mortgage to recover debts.

4. Organizations, households, and individuals transferring land use rights, selling houses, and construction projects to dispose of assets according to court decisions or decisions of competent state agencies when resolving disputes, complaints, or denunciations.

5. Organizations, households, and individuals investing in building houses for sale or lease without establishing a business enterprise in accordance with the laws on housing.

6. State agencies and organizations permitted by competent state authorities to transfer land use rights, sell houses, and construction projects owned by the state in accordance with the laws on state asset management.

7. Organizations, households, and individuals selling, transferring, leasing, or lease-purchasing real estate they own.

Section 2

TYPES OF MODEL CONTRACTS IN REAL ESTATE BUSINESS

Article 6. Types of model contracts in real estate business

The types of model contracts in real estate business issued together with this Decree include:

1. Sale and purchase contract for existing houses and construction works, or those to be formed in the future, according to Model No. 01 prescribed in the Appendix attached to this Decree.

2. Lease contract for existing houses and construction works, or those to be formed in the future, according to Model No. 02 prescribed in the Appendix attached to this Decree.

3. Rent-to-own contract for existing houses and construction works, or those to be formed in the future, according to Model No. 03 prescribed in the Appendix attached to this Decree.

4. Transfer, lease, and sublease contract for land use rights according to Model No. 04a and Model No. 04b prescribed in the Appendix attached to this Decree.

5. Transfer contract for the whole or part of a real estate project according to Model No. 05 prescribed in the Appendix attached to this Decree.

Article 7. Application of model contracts in real estate business

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

2. The parties may agree to amend or supplement clauses in the model contracts, but the contract signed by the parties must ensure that it contains all the main contents prescribed in Articles 18, 47, and 53 of the Law on Real Estate Business. Specific contents in the contract shall be agreed upon by the parties but must not contravene the provisions of the law.

Section 3

TRANSFER OF RENT-TO-OWN HOUSES AND CONSTRUCTION WORKS CONTRACTS

Article 8. Conditions for transferring rent-to-own houses and construction works contracts

1. The party renting to own houses and construction works as stipulated in Section 4, Chapter II of the Law on Real Estate Business has the right to transfer the rent-to-own contract for such houses and construction works to another organization or individual when the application dossier for the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land (hereinafter referred to as the certificate) submitted by the renting party has not yet been handed over to the competent state agency.

2. An organization or individual receiving the transfer of the rent-to-own contract for houses and construction works has the right to transfer the rent-to-own contract for such houses and construction works to another organization or individual when the application dossier for the certificate has not yet been handed over to the competent state agency for issuance of the certificate.

3. When transferring the rent-to-own contract for houses and construction works, the entire rent-to-own contract signed with the leasing party must be transferred. In the case of housing, the transfer of the rent-to-own contract shall be carried out for each separate house or apartment; in the case of a rent-to-own contract for multiple separate houses or apartments, the entire number of houses or apartments in the contract must be transferred.

Article 9. Procedures and formalities for transferring rent-to-own houses and construction works contracts

The transfer of the rent-to-own contract for houses and construction works must be documented in writing and must be notarized or certified according to the provisions of Clause 2 of this Article; tax payment; confirmation by the developer in the transfer document; and issuance of the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land, specifically as follows:

1. The transferring party and the receiving party of the contract draft the transfer document of the contract according to Model No. 06 prescribed in the Appendix attached to this Decree or have it drafted by a notary public at the request of the parties. The transfer document of the contract signed by both parties must be made in four copies and notarized or certified according to the provisions of Clause 2 of this Article (one copy for the leasing party to keep; one copy submitted to the tax authority; one copy kept by the transferring party; one copy kept by the receiving party).

2. The notarization or certification of the transfer document of the contract shall be carried out as follows:

a) In the case where the transferring party is a household, individual, or organization that is not a real estate business enterprise, the transfer document of the contract must be notarized or certified. The documents for notarization or certification include the following:

- The initial rent-to-own contract for houses and construction works signed with the leasing party and the transfer document of the contract for the previous transfer, if applicable (original);

- Identity card, citizen identification card, or passport if the receiving party is an individual; if the receiving party is an organization, it must be accompanied by the decision on establishment or registration of the organization (certified copy or original copy and presentation of the original for verification);

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

b) In the case where the transferring party is a real estate business enterprise, the notarization or certification of the transfer document of the contract shall be agreed upon by the parties. If there is an agreement on notarization or certification, the notarization or certification shall be carried out according to the provisions of Point a of this Clause;

c) Notary organizations and certification agencies are responsible for notarizing or certifying the transfer document of the contract within the time limit prescribed by the law on notarization and certification.

3. The parties involved in the transfer of the rent-to-own contract for houses and construction works are responsible for paying taxes, fees, and charges for the transfer of the contract according to the provisions of the law.

4. Confirmation by the leasing party in the transfer document of the contract shall be carried out as follows:

a) The parties are responsible for submitting the following documents to the leasing party:

- The initial rent-to-own contract for houses and construction works signed with the leasing party (original);

- The transfer document of the contract already notarized or certified; in the case where there is no notarization or certification, the original transfer document of the contract for the previous transfer must be attached, if applicable;

- Receipt of tax payment or exemption from tax according to the law on tax (original);

- Identity card or citizen identification card or passport if the transferee is an individual; if the transferee is an organization, it must be accompanied by the decision on establishment or registration certificate for the organization (certified copy or copy with the original presented for verification).

b) The seller has the responsibility to confirm the transfer document of the purchase contract within a maximum period of five working days from the date of receipt of the application for transferring the purchase contract, and return all submitted documents to the applicant, including two confirmed transfer documents (one for the transferring party and one for the transferee), without charging any fee related to the transfer of the contract. The seller shall retain a set of the transfer contract documents (copy) as specified in Point a Clause of this Article, including one original transfer document.

5. From the date the transfer document of the purchase contract is confirmed by the seller, the transferee of the purchase contract shall continue to perform the rights and obligations of the buyer of the house or construction project with the seller according to the purchase contract signed by the seller.

6. In cases where the contract is transferred from the second time onwards, such transfers must be carried out in accordance with the procedures for the first-time transfer of the contract.

7. The final transferee of the purchase contract for the house or construction project shall be granted the Certificate of Land Use Right, House Ownership Right, and Other Assets Attached to the Land by the competent state agency in accordance with the laws on land.

8. When applying for the issuance of the Certificate of Land Use Right, House Ownership Right, and Other Assets Attached to the Land, in addition to the documents required under the laws on land, the applicant must submit the following additional documents to the issuing authority:

a) The initial purchase or lease-purchase contract for the house or construction project signed with the seller (original);

b) The final transfer document of the contract already confirmed by the seller (original).

Section 4

TRANSFER OF CONTRACTS FOR THE SALE AND LEASE PURCHASE OF HOUSING FORMED IN THE FUTURE

IN THE FUTURE

Article 10. Conditions for transferring contracts for the sale and lease purchase of housing formed in the future

1. The buyer or lessee who has not yet taken delivery of the housing or who has already taken delivery of the housing has the right to transfer the contract for the sale or lease purchase of housing formed in the future to another organization or individual when the application for the issuance of the Certificate of Land Use Right, House Ownership Right, and Other Assets Attached to the Land has not yet been submitted to the competent state agency by the buyer or lessee.

2. An organization or individual receiving the transfer of the contract has the right to further transfer the contract for the sale or lease purchase to another organization or individual when the application for the issuance of the Certificate of Land Use Right, House Ownership Right, and Other Assets Attached to the Land has not yet been submitted to the competent state agency for issuance.

3. The transfer of the contract for the sale or lease purchase of housing formed in the future must be done individually for each separate house or apartment; in cases where the contract involves multiple separate houses or apartments, the entire number of houses or apartments must be transferred together.

Article 11. Procedures for transferring purchase and lease contracts for future residential properties

1. The procedures for transferring purchase contracts for future residential properties shall be carried out in accordance with the provisions of the law on housing.

2. The procedures for transferring lease purchase contracts for future residential properties shall be implemented in accordance with the provisions of Article 9 of this Decree. The transfer document for lease purchase contracts for future residential properties shall be in the form specified in Model No. 07 as stipulated in the Appendix attached to this Decree.

3. The final transferee of the lease purchase contract for future residential properties shall be granted the Certificate of Land Use Right, House Ownership Right, and Other Property Rights Attached to the Land by the competent state agency in accordance with the provisions of the law on land.

4. When applying for the issuance of the Certificate of Land Use Right, House Ownership Right, and Other Property Rights Attached to the Land, in addition to the documents required under the law on land, the party requesting the certificate must submit the following additional documents to the issuing authority:

a) The original lease purchase contract for future residential properties signed initially with the lessor (original).

b) The final transfer document of the contract already confirmed by the seller (original).

Section 5

TRANSFER PROCEDURES FOR THE ENTIRE OR PART OF A REAL ESTATE PROJECT

Article 12. Procedures for transferring the entire or part of a project decided by the provincial or district People's Committee on investment (investment decision, investment resolution, investment approval document)

The procedures for transferring the entire or part of a project decided by the provincial or district People's Committee on investment to another investor for continued business development shall be as follows:

1. The transferring investor shall submit one set of documents requesting the transfer of the entire or part of the project to the provincial People's Committee where the project is located or the specific agency authorized by the provincial People's Committee as follows:

a) For new urban area projects and housing development projects, the Construction Department;

b) For other types of real estate projects, the specialized management department designated by the provincial People's Committee.

2. Documents requesting the transfer of the entire or part of the project include:

a) Application for permission to transfer the entire or part of the project by the transferring investor in the form specified in Model No. 08a and 08b as stipulated in the Appendix attached to this Decree;

b) Project documents, including the portion of the project proposed for transfer, which include:

- Investment permit document or investment approval document from the competent state agency (certified copy);

- Decision approving the project, detailed planning at a scale of 1/500 or overall layout plan (certified copy);

- Certificate of Land Use Right for the entire or part of the project proposed for transfer (certified copy).

c) Report on the implementation process of the project by the transferring investor up to the date of transfer in the form specified in Model No. 09a and 09b as stipulated in the Appendix attached to this Decree.

d) Documents of the receiving investor include:

- Application for permission to receive the transfer of the project or a part of the project in the form specified in Model No. 10a and 10b as stipulated in the Appendix attached to this Decree;

- Business registration certificate with real estate business activities or Enterprise Registration Certificate with registered capital meeting the requirements stipulated in Article 3 of this Decree (certified copy), except in cases where foreign investors have not yet established an economic organization in accordance with the law on investment;

- Document proving ownership of funds to implement the project in accordance with the law on investment and land. In cases where there is no document proving ownership of funds in accordance with the law on investment and land, there must be a confirmation letter from an independent auditing organization or a financial statement that has been audited regarding the level of owner's equity of the enterprise at the nearest time point (year of transfer or the year immediately preceding the year of transfer) for operating enterprises; for newly established enterprises, if the capital is in Vietnamese currency or foreign currency, it must be confirmed by a commercial bank where the enterprise has an account about the balance of deposits of the enterprise, if the capital is in assets, there must be a valuation certificate or appraisal certificate issued by an organization with valuation or appraisal functions currently operating in Vietnam regarding the valuation results of the enterprise's assets.

3. Within thirty days from the date of receipt of complete and valid documents, the lead agency specified in Clause 1 of this Article shall be responsible for soliciting opinions from the Planning and Investment Department, Finance Department, Natural Resources and Environment Department, Construction Department, Tax Office, and specialized management department, and organizations conducting the assessment in accordance with Article 14 of this Decree, and report to the provincial People's Committee for signing and issuing a decision allowing the transfer. If the conditions for allowing the transfer are not met, the provincial People's Committee or the specialized agency authorized by the provincial People's Committee must notify the transferring investor in writing of the reasons.

4. Within thirty days from the date of the decision by the competent state agency allowing the transfer of the project or a part of the project (in the form specified in Model No. 11 as stipulated in the Appendix attached to this Decree), the parties must complete the signing of the transfer contract and the handover of the project or part of the project. The receiving investor shall be responsible for continuing to develop the project or part of the project immediately after receiving the handover. The transferring investor shall be responsible for handing over all project documents or a part of the project to the receiving investor, accompanied by a handover record and a list of documents.

Before proceeding with the transfer procedures, the transferring investor must notify in writing all customers (if any) and announce on mass media at least 15 days prior (at least three consecutive issues of a local newspaper or a local or central television station and the website of the lead agency (if any) regarding the project transfer or part thereof, customer rights, and the interests of related parties. In cases where customers or related parties have objections to their rights concerning the transferred project or part thereof, the transferring investor shall be responsible for resolving such objections according to the law before signing the transfer contract.

5. The transfer of land use rights of the project or part of the project permitted for transfer shall be carried out in accordance with the provisions of the law on land.

Article 13. Procedures and formalities for the transfer of the entire or part of a project decided on investment by the Prime Minister (investment decision, investment resolution, investment approval document).

The procedures and formalities for the transfer of the entire or part of a project decided on investment by the Prime Minister to another investor for continued business investment shall be implemented as follows:

1. The transferring investor shall submit one set of documents requesting the transfer of the entire or part of the project in accordance with Clause 2, Article 12 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 documents, the People's Committee of the province shall be responsible for soliciting opinions from the Ministry of Construction, the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Natural Resources and Environment, the specialized management ministry, and the organization for assessment in accordance with Article 14 of this Decree to report to the Prime Minister for decision.

3. Other contents in the transfer of the entire or part of a real estate project decided on investment by the Prime Minister shall be implemented in accordance with the procedures and formalities prescribed in Article 12 of this Decree.

Article 14. Assessment and opinion on the transfer project documents

1. The contents of the assessment and opinion on the documents requesting the transfer of the entire or part of a real estate project include:

a) Regarding the documents requesting the transfer of the entire or part of the project of the project investor in accordance with Clause 2, Article 12 of this Decree;

b) Regarding the conditions of the project, the part of the project to be transferred in accordance with Clause 1, Article 49 of the Law on Real Estate Business;

c) Regarding the conditions of the transferring investor in accordance with Clause 2, Article 49 of the Law on Real Estate Business;

d) Regarding the conditions of the receiving investor in accordance with Clause 3, Article 49 of the Law on Real Estate Business and the law on land.

2. The lead agency for assessment prescribed in Clause 1, Article 12 and the agencies responsible for giving opinions on the documents requesting the transfer of the entire or part of a real estate project prescribed in Clause 3, Article 12 and Clause 2, Article 13 of this Decree must provide opinions on the contents prescribed in Clause 1 of this Article, clearly stating their opinion on whether the project or part of the project meets the conditions for transfer. If the conditions for transfer are not met, they must clearly state the reasons so that the lead agency for assessment can inform the transferring investor of the reasons.

Chapter III

IMPLEMENTING PROVISIONS

Article 15. Effective Date

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

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

Article 16. Transitional Provisions

1. Real estate businesses currently operating but not yet meeting the statutory capital requirements under this Decree may continue to operate, but must supplement the statutory capital requirements under this Decree within one year from July 1, 2015 if they continue to engage in real estate business.

2. Investment projects in real estate business that have been decided on investment by competent state authorities, have been allocated land, leased land, have received permission to transfer projects, and contracts for project transfers, sales, leases, and lease purchases signed before July 1, 2015 do not need to re-proceed according to the procedures stipulated in the Law on Real Estate Business No. 66/2014/QH13.

3. Contracts for sale, transfer, lease, lease purchase of real estate, project transfers, and transfer documents of contracts signed before the effective date of this Decree may continue to be implemented without having to sign again according to model contracts and the procedures and formalities of this Decree.

Article 17. Responsibility for Implementation

Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairmen of provincial People's Committees, municipal People's Committees directly under the Central Government, and real estate businesses, organizations, and individuals related to this Decree are responsible for its implementation./.