Chương VII Luật Nhà ở 2014: Quản lý, sử dụng nhà chung cư

Chapter VII

MANAGEMENT AND USE OF APARTMENT BUILDINGS

Section 1. MANAGEMENT, USE AND MAINTENANCE OF APARTMENT BUILDINGS

Article 98. Classification of apartment buildings

1. Apartment buildings are classified into different categories to determine the value of the apartment buildings when managing them or putting them onto the market.

2. The Minister of Construction shall regulate the classification and recognition for classification of apartment buildings.

Article 99. Useful life of apartment buildings

1. The useful life of an apartment building is determined according to the class of the construction and conclusion on quality assessment provided by the housing authority of province where the apartment buildings prescribed in Clause 2 of this Article are located. The People’s Committee of the province shall grant funding to carry out the housing quality assessment.

2. When the useful life of the apartment building expires as prescribed in law on construction or the apartment building is seriously damaged, or in danger of collapse, or unsafe for its occupiers, the housing authority of province shall carry out the housing quality inspection following procedures below:

a) In case the apartment building is still quality and safe for occupiers, its owner(s) entitled to use it for a period stated in the conclusion, except for cases prescribed in Clause 2 and Clause 3 Article 110 of this Law;

b) In case the apartment building is seriously damaged, in danger of collapse, or unsafe for its occupiers, the housing authority of province shall issue the conclusion on housing quality inspection and send a report to the People’s Committee of the province, then send a notification to the homeowner; the content of the notification must be disclosed on the website of the People’s Committee and the housing authority of province, and by means of local mass media.

The owner(s) of the apartment building must demolish the apartment building to renovate or rebuild a new apartment building or transfer it to the competent agency to demolish or rebuild another construction as prescribed in Clause 3 of this Article.

3. Any apartment building and the piece of land on which an apartment building is located prescribed in Point b Clause 2 of this Article shall follow the procedures below:

a) In case the piece of land on which the apartment building is located is still conformable with the planning for housing construction, the owner(s) is/are entitled to renovate or rebuild a new apartment building as prescribed in Section 2 of this Chapter;

b) In case the piece of land on which the apartment building is located is no longer conformable with the planning for housing construction, the owner(s) must return this apartment building to the competent agency in order to demolish and rebuild another construction according to the approved planning;

c) In case the owner(s) of the apartment building fails to implement the decision on demolition or return the apartment building, the President of the People’s Committee of the province shall enforce the housing demolition or enforce the relocation;

d) The settlement of dwelling provided for the owners of the apartment building which is demolished shall comply with Article 116 of this Law.

In case the apartment building is demolished to rebuild a new apartment building, the owners are entitled to keep using the piece of land on which that apartment building is located; in case the apartment building is demolished to build another construction, the settlements of the piece of land on which that apartment building is located shall comply with regulations of law on land.

Article 100. The private areas and common areas in apartment buildings

1. The private areas in an apartment building include:

a) The interior of apartments including balconies, loggias attached to those apartments;

b) Other areas in the apartment building which are under private ownership of the homeowner of the apartment building;

c) System of private technical equipment attached to the apartments and other areas under private ownership.

2. The common areas in an apartment building include:

a) The remaining area of the apartment building except for the private areas mentioned in Clause 1 of this Article; the community center of the apartment building;

b) Shared areas and supporting structure systems, technical equipment in the apartment building including frames, columns, load-bearing walls, enclosing walls, apartment-dividing walls, floors, roofs, terraces, corridors, stairways, elevators, emergency exits, garbage chute, systems of electricity supply, water supply, gas supply, communication system, radio, television, drainage, septic tanks, lightning conductors, fire fighting and other parts not under private ownership of the apartment building’s homeowners;

c) Exterior technical infrastructure but connected to the apartment building, except for technical infrastructure system which is used for public purposes or required to transfer to the State or the investor in charge of the approved project;

d) Public constructions in the apartment building area which are not built for commercial purposes or required to transfer to the State according to the approved project include public yards, flower gardens and other constructions mentioned in the approved residential construction project.

Article 101. Parking lots and determination of floor area of apartments, or other areas in apartment buildings

1. The investor must construct a parking lot for owners and occupiers in the apartment building including cars, two-wheel motorcycles, three-wheel motorcycles, bicycles and vehicles for the disabled according to the approved standards for construction and design, and ensure that the parking lot is used properly. The ownership or rights to use pertaining to the parking lot shall be determined as follows:

a) Any area used for bicycles, vehicles for the disabled, two-wheel motorcycles, or three-wheel motorcycles of owners or occupiers of the apartment building shall be under joint ownership and joint use rights of the apartment building’s owners;

b) Any buyer or lessee of apartments or other areas in the apartment building may buy or rent the area used for cars of the apartment building’s owners; in case he/she does not buy or rent that area, it shall be under management of the investor and the investor may not include the expenditures on the parking lot construction in the selling prices or lease purchase prices. The arrangement of parking lot for cars in the apartment building must follow the rules that the cars of the apartment building’s owners shall be given priority over other cars.

2. The floor area of apartments or other private areas of apartment building’s homeowner shall be determined according to carpet area including the area of partition walls between the rooms and balcony area, loggia (if any) of the apartment, exclusive of its enclosing walls, separating walls between the apartments, floor area including column(s), technical boxes inside. When calculating the balcony area, the total floor area must be calculated; in case the balcony has shared wall, it shall be calculated from the inner edge of the shared wall.

Article 102. Apartment building meetings

1. Apartment building meeting is a meeting between owners or occupiers of the apartment building if the apartment building’s owners do not attend.

2. The apartment building meeting shall be held to decide issues prescribed in Clause 3 and Clause 4 of this Article when the apartment building meets all requirements mentioned in the Statue on management and use of apartment buildings issued by the Minister of Construction.

3. With respect to any apartment building having many homeowners (hereinafter referred to as multi-owner building), the Apartment building meeting shall be held to decide the issues below:

a) Nominate, elect, or dismiss members of the Management board of the apartment building; pass, amend the Regulations on management and use of the apartment building;

b) Pass, or amend Operation regulation of the Management board of the apartment building; decide the responsibility allowance provided for the Management board members and reasonable costs serving the operation of the Management board;

c) Pass the charges of apartment building management services as prescribed in Article 106 of this Law and the use of funding for maintenance of common areas in the apartment building;

d) Decide to choose the managing organization of the apartment building in case the investor(s) are not in charge of apartment building management, or they are in charge of apartment building management but they refuse to manage the apartment building, or they manage the apartment building but they do not meet requirements as agreed in the agreement on service provision concluded with the Management board of the apartment building;

dd) Pass the report on management operation, maintenance of common areas operation of the apartment building;

e) Decide other issues relating to the management and use of the apartment building.

4. With respect to any single-owner apartment building, the Apartment building meeting shall be held to decide the issues prescribed in Point a, b and e Clause 3 of this Article.

5. Every decision issued by the Apartment building meeting on issues prescribed in Clause 3 of this Article shall be passed under the majority rule by the voting by hands or ballots, which is recorded in writing, and signed by the members in charge of the meeting and secretaries of the meeting.

Article 103. Management board of the apartment building

1. If the apartment building has fewer than 20 apartments regardless of single-owner building or multi-owner building, the homeowner(s) and/or the occupiers of the apartment building shall decide whether to set up or not set up the Management board of the apartment building; if the Management board of the apartment building is set up, it shall follow the procedures below:

a) Regarding the multi-owner building, the components of the Management board shall include the representative of the owner and the occupiers;

b) Regarding the multi-owner building, the components of Management board of the apartment building shall comply with Clause 2 of this Article.

2. Regarding the apartment building having 20 apartments or above, it is required to set up the Management board of the apartment building. The members of the Management board of the apartment building shall include apartment building’s owners, representatives of the investor(s) (if any); in case the occupiers also attend the Apartment building meeting, the members of the Management board of the apartment building may include the occupiers.

3. The Management board of the single-owner building shall be organized under autonomous model. The Management board of the multi-owner building shall be organized under model of Board of Directors of a joint-stock company or under model of Chairman of Board of Cooperatives, which has legal status, seal and exercise the rights and fulfill obligations as prescribed in Clause 1 Article 104 of this Law.

When electing or dismissing members of the Management board of the apartment building, the homeowners or occupiers of the apartment building are not required to set up a joint-stock company or a cooperative; the members of the Management board shall be elected or dismissed through the Apartment building meeting according to the Statute of management and use of apartment buildings issued by the Minister of Construction.

Article 104. Rights and responsibilities of the Management board of the apartment building

1. Regarding the multi-owner building, the Management board has rights and obligations to:

a) Remind the homeowners or the occupiers to conform to the Regulations or Statutes of management and use of the apartment building;

b) Manage and use the funding for maintenance of common areas in the apartment building as prescribed of this Law and decisions issued by the Apartment building meeting; send a report on receipts and expenditures on this funding to the Apartment building meeting;

c) Request the Apartment building meeting to pass the fees for apartment building management services;

d) Conclude an agreement on provision of apartment building management services with the investor or the unit in charge of apartment building management chosen by the Apartment building meeting as prescribed in Point d Clause 3 Article 102 of this Law.

In case the apartment building is not required to have the managing organization as prescribed in Point b Clause 1 Article 105 of this Law but it is transferred to the Management board of the apartment building by the Apartment building meeting, the Management board shall conduct the receipts and expenditures of funding provided for in the decision of Apartment building meeting;

dd) Conclude an agreement with an housing maintenance unit as prescribed in law on construction to maintain the common areas of the apartment building and observe the maintenance operation. The maintenance of common areas may be carried out by the management unit of apartment building or the housing maintenance unit as prescribed in law on construction;

e) Collect opinion and suggestion from the occupiers about the management, use and provision of apartment building services, then cooperate with related competent agencies, organizations or individual in consideration;

g) Cooperate with the local governments, neighborhoods in adoption of civilized lifestyle, maintenance of social order and security in the apartment building;

h) Conform to Operation regulation issued by the Management board of the apartment building passed by Apartment building meeting, do not dismiss or supplement members to the Management board of the apartment building itself;

i) Receive responsibility remuneration and other reasonable costs as provided for in the decisions issued by Apartment building meeting;

k) Take legal responsibility, take responsibility to the homeowners or occupiers when they exercise rights and fulfill obligations inconsistently with this Clause;

l) Perform other tasks assigned by the Apartment building meeting in accordance with regulations of law.

2. Regarding single-owner building, the Management board of the apartment building shall exercise rights and fulfill obligations as prescribed in Point a, e, g, h, I, k and l Clause 1 of this Article.

Article 105. Management of apartment buildings

1. The management of an apartment building shall be carried out as follows:

a) Regarding any apartment building having elevators, the managing organization shall carry out the apartment building management;

b) Regarding any apartment building having no elevator, the Apartment building meeting shall be held to decide whether to manage themselves or hire a managing organization conducting the apartment building management.

2. Any apartment building managing organization must satisfy requirements pertaining to competency as follows:

a) It is established and operated as prescribed in regulations of the Law on enterprise or the Law on cooperatives and in charge of apartment building management;

b) It is required to have departments in charge of apartment building management including technology, service, security, hygiene, or environment units;

c) There are personnel meeting requirements pertaining to housing management including construction, electric technique, water, fire safety, operation of equipment attached to the apartment building and certificates of training in apartment building management as prescribed in regulations of the Minister of Construction.

3. The apartment building managing organization shall manage the technical system, equipment, and provision of apartment building services, maintain the apartment building and perform other tasks relating to the apartment building management.

4. The apartment building managing organization is entitled to collect fees for management of the apartment building from the homeowners, or the occupiers according to the prices prescribed in Clause 3 and Clause 4 Article 106 of this Law; regarding the state-owned apartment building, the fees for management services shall comply with regulations in Point a, Clause 5, Article 106 of this Law.

5. The managing organization is entitled to manage more than one apartment building in the same or different administrative divisions.

Article 106. Fees for apartment building management services

1. The fees for the apartment building management services (hereinafter referred to as the service fees) must be determined publicly, transparently and according to tasks carried out regarding each type of apartment building.

2. The service fees do not include expenditures on maintenance of common areas, parking fees, expenditures on fuel, energy, tap water, television services, communication and other fees serving the private use of the homeowners or occupiers.

3. Regarding a multi-owner building, the service fees shall comply with regulations below:

a) In case it fails to organize the Apartment building meeting for the first time, the service fees shall be the fees as defined in the agreement on housing sale or lease purchase,

b) In case the Apartment building meeting has been organized, the service fees shall be determined by the Apartment building meeting.

4. Regarding any single-owner building, the service fees shall be charged according to the agreement concluded between the homeowner and the occupiers; regarding any state-owned apartment building, the service fees shall comply with Clause 5 of this Article.

5. The People’s Committee of the province shall issue the service fee bracket in order to apply to the following cases:

a) Collect the service fees on state-owned apartment buildings in the province;

b) Enable contracting parties to enter into agreements on housing sale or lease purchase or in case there is dispute over the service fees between the managing organization and the homeowners and the occupiers; in case it fails to agree about the service fees, the fees in the service fee bracket issued by the People’s Committee of the province shall be applied.

Article 107. Apartment building maintenance

1. The maintenance of an apartment building includes the maintenance of private areas and maintenance of common areas. The homeowner of the apartment building must maintain the private areas and provide funding for maintenance of common areas in the apartment building.

2. Regarding the multi-owner building, the funding for maintenance of common areas shall be provided as prescribed in Article 108 of this Law and that funding shall be used as prescribed in Article 109 of this Law.

3. The maintenance work, program and management of documents on the apartment building maintenance shall comply with the law on construction.

Article 108. Funding for maintenance of common areas in the multi-owner building

1. Funding for maintenance of common areas in the multi-owner building shall comply with regulations below:

a) Regarding apartments or other areas in the apartment building which are sold, or leased and sold by the investor, the investor must pay 2% of value of the apartments or other areas; this amount of money shall be included in the selling price or lease purchase price paid by the buyer or lessee when transfer the apartments or other area, which is stated in the agreement;

b) Regarding apartments or other areas in the apartment building which are not sold, or lease and sold by the investor or have been not sold, or leased and sold up to the date on which the apartment building is put into operation, except for the common areas, the investor must paid 2% of value of the remaining apartments or areas; this value shall be determined according to the highest selling price of apartments in the apartment building.

2. In case the maintained funding prescribed in Clause 1 of this Article is not enough for the maintenance of common areas in the apartment building, the homeowner must provide additional funding in proportion to the areas under private ownership of every homeowner.

3. In case the investor concludes agreements on sale or lease purchase of apartments or other areas in the apartment building before July 1, 2006 but he/she has not collected contribution towards maintenance of common areas, the homeowners of apartment building shall hold an Apartment building meeting to determine the contribution; that contribution may be paid monthly into the deposit account in deposit account a credit institution operating in Vietnam made by the Management board or collected when the apartment building required maintenance.

4. In case the investor concludes agreements on sale or lease purchase of apartments or other areas in the apartment building after July 1, 2006, but the maintenance funding is not agreed in the housing sale and lease purchase agreement, the investor shall make this contribution; in case the selling prices or lease purchase prices in the agreement are not included the maintenance funding, the investor shall make the contribution relating to funding for common areas as prescribed in Clause 3 of this Article.

5. In case the apartment building for residential and commercial use is divided into separate areas in the same building including apartment areas, business areas, and each area has common areas which are separated from the common areas of the entire building which is independently managed, the investor and the buyer or lessee of apartments or other areas in the apartment building shall agree to divide the funding for the maintenance of common areas into smaller parts in order to manage and use as prescribed in Clause 4 Article 109 of this Law.

Article 109. Management and use of funding for maintenance of common areas in the multi-owner building

1. Regarding the funding for maintenance prescribed in Clause 1 Article 108 of this Law, within 07 days, from the day on which the service fees are collected from the buyers for apartments or other areas in the apartment building, the investor shall send it to the savings account opened in a credit institution operating in Vietnam for management and notify the housing authority of province.

Within 07 days, from the day on which the Management board of the apartment building is established, the investor shall transfer the maintenance funding including interests to the Management board in order to manage and use as prescribed in this Law and notify the housing authority of province; if the investor fails to transfer that funding, the Management board of apartment building entitled to request the People’s Committee of the province where the apartment building is located to enforce the transfer as prescribed in regulations of the Government.

2. The maintenance funding prescribed in Article 108 of this Law is only used for maintenance of the common areas of the apartment building, neither used for management of apartment building nor other purposes; in case the apartment building is subject to the demolition and the maintenance funding still remains, the remaining funding shall be used for the relocation or transferred to the new maintenance funding for the common areas of the new apartment building.

3. The Management board of apartment building shall manage and use the maintenance funding for proper purposes or works according to the plan for maintenance approved the Apartment building meeting annually. The use of the funding for maintenance of common areas is required invoices with payment and settlement as prescribed in law on finance and reported to the Apartment building meeting.

The members of the Management board of apartment building using the funding in contravention of Clause 2 of this Article and this Clause shall take legal responsibility and pay compensation against damage.

4. The management and use of the portion of maintenance funding prescribed in Clause 5 Article 108 of this Law:

a) The portion of maintenance funding for the common areas of the apartment building and the apartments shall be transferred into the account opened by the Management board of apartment building for management and use as prescribed in this Article;

a) The portion of maintenance funding for the common areas of the business area, the owners of that business area shall manage and use it themselves.

Section 2: DEMOLITION OF APARTMENT BUILDINGS FOR RENOVATION OR RECONSTRUCTION

Article 110. Cases of demolition of apartment buildings for renovation or reconstruction

1. The apartment buildings subject to demolition for renovation or reconstruction which are determined as prescribed in Point b Clause 2 Article 99 of this Law.

2. The damaged apartment buildings which are not subject to demolition but in the area subject to renovation or construction synchronized with the apartment building subject to demolition as prescribed in Clause 1 of this Article according to approved construction planning.

3. The apartment buildings which are demolished according to agreement between all owners through the Apartment building meeting regardless of not subject to regulations in Clause 1 and Clause 2 of this Article.

Article 111. Plans for renovation and reconstruction of apartment buildings

1. The People’s Committee of the province where the apartment building is located shall check and release statistics on types of apartment building in the province; make and approve the plan for renovation and reconstruction of apartment buildings as prescribed in Clause 1 and Clause 2 Article 110 of this Law.

2. The plan for renovation or reconstruction of apartment buildings may be separately made and approved or shall be formulated in the plans for local housing development and must be disclosed by means of local mass media, or on the website of the People’s Committee of the province, or housing authority of province and send notifications to residential areas and People’s Committees of communes where the apartment buildings are located.

Article 112. Requirements for apartment building demolition for renovation or reconstruction

1. Any apartment building which is demolished for renovation or reconstruction must satisfy requirements prescribed in Article 110 of this Law and conform to construction planning and approved programs for local housing development.

2. Before demolishing the apartment building, the investor must make a plan for relocation, and then send a report to the People’s Committee of the province where the apartment building is located for approval. The plan for relocation must be informed to residential areas where the apartment building to be demolished is located, or announced by means of local mass media or on the website of the People’s Committee or the housing authority of province.

3. The renovation and reconstruction must conform to the project and renovate the housing in the area of the project according to approved construction planning.

4. The renovation and reconstruction of state-owned apartment buildings must be approved by the competent agency and in accordance with regulations on renovation and reconstruction of state-owned houses.

Article 113. Forms of renovation and reconstruction of apartment buildings

1. Any real estate enterprise invests or contributes capital together with owners having apartment buildings prescribed in Article 110 of this Law to renovate or rebuild apartment buildings, unless the owners prescribed in Clause 1 and Clause 2 Article 110 of this Law do not comply with decision on demolition.

2. The State shall enforce the demolition and directly invest in renovation or reconstruction of apartment buildings using the capital prescribed in Clause 3 Article 36 of this Law regarding cases prescribed in Clause 1 and Clause 2 Article 110 of this Law but the owners of the apartment building do not comply with decision on demolition.

Article 114. Investors in project on renovation and reconstruction of apartment buildings

1. The investors in project on renovation and reconstruction of apartment buildings shall be selected as follows:

a) In case the State uses the capital prescribed in Clause 3 Article 36 of this Law to invest in renovation or reconstruction of the apartment building, the housing authority of province shall request the person in charge of investment approval to select the investor(s);

b) In case the State invests in renovation and reconstruction of apartment buildings under building – transfer contract prescribed in Clause 3 Article 36 of this Law, the housing authority of province shall request the People’s Committee of the province to select the investor(s) through inviting bids if there are two investors or more registering or no-bid contracts if there is only one investor registering;

c) In case the real estate enterprise invests capital in renovation and reconstruction of apartment buildings, the owner of the apartment building and the enterprise shall agree about the investor and request the housing authority of province to send a requirement to the People’s Committee of the province for approval.

2. The investors in projects on renovation and reconstruction of apartment buildings may only be selected after its plan is approved by the People’s Committee of the province.

3. In case renovating or rebuilding the apartment building prescribed in Point b and Point c Clause 1 of this Article, the investor must meet all requirements as prescribed in Article 21 of this Law.

Article 115. Plans for relocation in case of demolition of apartment buildings

1. In case the single-owner building is being used for lease, the accommodation for lessees shall be arranged according to agreement between the owner and the lessees.

2. If the multi–owner building is invested by real estate enterprise, the owner of that building and the enterprise shall agree about the plan for relocation following rules prescribed in Article 116 of this Law to send a report to the People’s Committee of the province where the apartment building is located.

The owners of the apartment building must hold an Apartment building meeting makes a plan for relocation, and then send it to the People’s Committee of the province where the apartment building is located.

3. In case the apartment building is subject to regulations prescribed in Clause 1 and Clause 2 Article 110 of this Law but the owner does not implement the decision on demolition, the People’s Committee of the province where the apartment building is located enforces the demolition and make and approve a plan for relocation as prescribed in Article 116 of this Law.

Article 116. Housing relocation

1. The relocation for the owners having the apartment building subject to demolition shall be carried out as follows:

a) In case the owners do not wish to relocate in the same location, they shall be allocated housing or residential land for relocation according to conditions of the local governments as prescribed in Article 36 of this Law;

b) In case the owners wish to relocate in the same location, they shall be allocated new houses whose areas are the same or bigger than the areas of old houses.

In case the State invests in renovation and reconstruction of apartment buildings but there is difference in value between old houses and new houses, the payment for difference shall be carried out in conformity with the approved plan for relocation; if the real estate enterprise and the owner agree to invest in renovation and reconstruction of apartment buildings, the difference shall be paid according to agreement between contracting parties;

c) The housing relocation shall be carried out according to agreements on housing lease or lease purchase concluded between the people qualified for relocation and the agency in charge of relocation if the relocation is invested by the State; or concluded with the investor in the project if the relocation is invested the real estate enterprise;

d) Apart from the relocation prescribed in this Clause, the people qualified for relocation may be paid the compensation as prescribed in law on compensation, or relocation.

2. The relocation applied to the owners whose apartment buildings subject to demolition to build another construction shall be carried out as prescribed in Article 36 of this Law.

3. In case the State invests in renovation and reconstruction of apartment buildings, the investor must provide temporary accommodation or pay money for the people qualified for relocation to manage their accommodation during the renovation or reconstruction period; in case the real estate enterprise and the owner jointly invest in renovation and reconstruction of apartment buildings, contracting parties shall agree about the provision accommodation of the owners during the renovation or reconstruction period.

4. The Government shall provide guidance on the apartment building demolition for renovation and reconstruction of apartment buildings and the relocation.