Chapter V
TRANSFER OF REAL ESTATE PROJECTS
Article 39. Rules for transferring entire or partial real estate project
1. A real estate project investor is entitled to transfer a part or whole of the project to another investor to continue investment in, construction and operation of the project for the period approved by a competent authority.
2. The transfer of entire or partial real estate project does not cause any change to the planning or project objectives; must ensure legitimate rights and interests of relevant parties.
3. Upon completion of transfer of entire or partial real estate project, the transferee shall inherit all rights and obligations of the project investor transferring the project and become the investor of the received project or part of project. The transferee shall not be required to re-prepare the project dossier, construction planning and re-apply for a building permit, if there are no changes in the contents of the project. If there are changes in the contents of the project, the transferee shall make corresponding adjustments in accordance with regulations of law.
4. Transfer of entire or partial real estate project must meet the conditions set out in Article 40 of this Law and be bound by provisions on forms, purposes and duration of land use, and land registration set out in the Land Law.
Article 40. Conditions for transfer of entire or partial real estate project
1. A real estate project to be transferred must meet the following conditions:
a) The investment guidelines for the project or the investment in the project has been decided or approved by a competent authority; the project investor has been selected or certified, if procedures for certification of the project investor are required;
b) A detailed planning for the project has been approved in accordance with regulations of the Construction Law and the Law on Urban Planning;
c) The compensation and support for resettlement in respect of the project or its part to be transferred have been completed. In case the entire project on construction of infrastructure facilities is transferred, the construction of corresponding technical infrastructure facilities must have been completed according to the approved schedule, design and detailed planning in accordance with regulations of the Construction Law, the Law on Urban Planning, and contents of the approved project in accordance with regulations of the Construction Law;
d) Rights to use land of the project or its part to be transferred are not in any dispute which has been notified, handled or is under consideration by a competent authority or such LURs only involve in disputes which have been completely resolved under sentences, decisions or judgments which have taken legal effect; such LURs are not distrained to serve judgment enforcement; are not banned from trading as prescribed by law; and are not suspended from trading as prescribed by law;
dd) There is no decision to suspend or terminate operation of the project or decision on land expropriation given by a competent authority. If the project or its part to be transferred involves in an administrative violation, the project investor must have implemented the decision to impose administrative penalties issued by a competent authority in accordance with regulations of the Law on Penalties for Administrative Violations;
e) In case the project is being mortgaged as collateral to serve the fulfillment of obligations as prescribed by law, procedures for collateral release must be followed;
g) The project duration is not yet expired;
h) If a part of the real estate project is transferred, work items or their use or business purposes of that part must be independent from those of the remaining part of the project.
2. The transferee of the entire or partial real estate project must satisfy the requirements laid down in clauses 1 and 2 Article 9 of this Law, and covenant to continue construction and operation of the received partial or entire project according to approved contents of the project. If there are any changes in such approved contents of the project, the provisions of clause 3 Article 39 of this Law shall apply.
3. The transferor has been issued by a competent authority with a decision on land allocation, land lease or land repurposing for implementing the project; has fulfilled land-related financial obligations, including land levy, land rent and other relevant taxes, fees and charges (if any), towards the State in respect of the land area used for implementing the project or its part to be transferred without requiring certificate of LURs as prescribed by the Land Law.
4. In addition to the conditions set out in clauses 1, 2 and 3 of this Article, the transferor that is a state-owned enterprise must also comply with regulations of law on management and utilization of state capital invested in manufacturing and business activities of enterprises.
5. In addition to the conditions set out in clauses 1, 2, 3 and 4 of this Article, the transfer of entire or partial real estate project must also meet other conditions set out in the Investment Law and relevant laws.
Article 41. Authority to approve transfer of entire or partial real estate project
1. If the project investor has been approved or a investment registration certificate has been issued to the real estate project as prescribed by the Investment Law, approving authority and procedures for transferring entire or partial project shall comply with the Investment Law.
2. For a real estate project other than those specified in clause 1 of this Article, the authority to approve transfer of entire or partial real estate project is determined as follows:
a) The Prime Minister of Vietnam shall decide to approve transfer of entire or partial real estate project in respect of the projects for which or in which the investment guidelines or investment has been decided or approved by the Prime Minister of Vietnam. In case a provincial People's Committee is authorized by the Prime Minister of Vietnam to decide the transfer of partial real estate project, the former shall take charge of allowing such transfer and comply with the provisions of clause 2 Article 42 of this Law;
b) Provincial People's Committees shall decide to approve transfer of entire or partial real estate project in respect of the projects for which or in which the investment guidelines or investment has been decided or approved by the provincial People's Committee.
Article 42. Procedures for transfer of entire or partial real estate project
1. Procedures for transfer of entire or partial real estate project under the authority of the Prime Minister of Vietnam as prescribed in clause 2 Article 41 of this Law:
a) The project investor shall send an application for approval of transfer of entire or partial real estate project to the People's Committee of province or city where the project is located or the provincial real estate authority authorized by the provincial People's Committee;
b) Within 45 days from the receipt of adequate and valid application, the provincial People's Committee shall take opinions from the Ministry of Construction of Vietnam and relevant Ministries, central-government authorities and agencies, organize appraisal of the application, and submit it to the Prime Minister of Vietnam for issuing a decision to approve the transfer. In case a real estate project fails to meet conditions for transfer, the receiving authority shall give a written notification thereof to the project investor;
c) After obtaining the decision to approve the transfer from the Prime Minister of Vietnam, the transferor and the transferee shall enter into a transfer contract and carry out handover of the project.
2. Procedures for transfer of entire or partial real estate project under the authority of a provincial People’s Committee as prescribed in clause 2 Article 41 of this Law :
a) The project investor shall send an application for approval of transfer of entire or partial real estate project to the People's Committee of province or city where the project is located or the provincial real estate authority authorized by the relevant People's Committee;
b) Within 30 days from the receipt of adequate and valid application, the provincial People's Committee shall take opinions relevant authorities, organize appraisal of the application, and issue a decision to approve the transfer. In case a real estate project or its part fails to meet conditions for transfer, the receiving authority shall give a written notification thereof to the project investor;
c) After obtaining the decision to approve the transfer from the provincial People's Committee, the transferor and the transferee shall enter into a transfer contract and carry out handover of the project.
3. In case the transferee of the entire or partial project as prescribed in clause 2 Article 41 of this Law is a foreign-invested business organization as prescribed in clause 4 Article 10 of this Law, after obtaining the decision to approve the transfer from a competent authority and the parties have entered into the transfer contract, land-related procedures shall be followed in accordance with regulations of the Land Law.
4. The Government shall elaborate this Article.
Article 43. Rights and obligations of parties in transfer of entire or partial real estate project
1. The transferor shall have the following rights and obligations:
a) Transfer their rights and obligations over the transferred part or whole of the project to the transferee for continuing the implementation of the real estate project, except those which have been performed and do not relate to the transferee as well as the implementation of such transferred part or whole of the project;
b) Hand over relevant documents to the transferee; punctually, sufficiently and publicly notify as well as satisfactorily settle legitimate rights and interests of entities related to the transferred part or whole of the project;
c) Cooperate with the transferee to carry out procedures for transfer of LURs to the transferee in accordance with the Land Law;
d) In case a part of the real estate project is transferred, the transferor is entitled to request the transferee to continue construction of the housing or building within the received part of the project according to approved contents of the project, building permit, if required, and approved detailed planning in accordance with regulations of the Construction Law and the Law on Urban Planning; monitor and promptly notify competent authorities of any violations against regulations of law committed by the transferee during their land use and construction of housing or building;
dd) Fulfill financial obligations towards the State in accordance with regulations of law;
e) Perform other contractual rights and obligations.
2. The transferee shall have the following rights and obligations:
a) Inherit and perform rights and obligations transferred from the transferor;
b) Continue the construction and operation of the project according to approved contents of the project. If there are any changes in such contents of the project, the provisions in clause 3 Article 39 of this Law shall apply;
c) In case a part of the real estate project is transferred, the transferee shall comply with the transferor’s request for compliance with the planning during the investment in and construction of the project;
d) Fulfill financial obligations towards the State in accordance with regulations of law;
dd) Perform other contractual rights and obligations.
Tìm kiếm
Luật kinh doanh bất động sản 29/2023/QH15 (Bản Word)
Luật kinh doanh bất động sản 29/2023/QH15 (Bản Pdf)