Chương II Nghị định 101/2015/NĐ-CP: Trình tự, thủ tục, quyền và nghĩa vụ của chủ đầu tư, chủ sở hữu khi thực hiện dự án đầu tư cải tạo, xây dựng lại nhà chung cư

Chapter II

RIGHTS AND OBLIGATIONS OF INVESTORS AND OCCUPIERS, PROCEDURES FOR EXECUTION OF RENOVATION/RECONSTRUCTION PROJECTS

Session 1. PROCEDURES FOR EXECUTION OF RENOVATION/RECONSTRUCTION PROJECTS

Article 6. Investigation, surveys and quality inspection of apartment buildings

1. The Department of construction shall take charge of and cooperate with local competent authorities to investigate and survey the status of the apartment whose useful life expires under regulations of laws on construction or run-down apartment buildings within its administration and shall inspect the quality of such apartment buildings.

The inspection of quality of such apartment buildings shall be conducted in accordance with laws on quality control of construction works.

The Ministry of Construction shall release guidance on risk assessment of apartment building structure and procedures for inspection of the apartment building quality.

2. With regard to a run-down apartment building which needs demolishing to be upgraded and rebuilt, the Department of Construction shall issues the inspection conclusion of the apartment building quality and request the People’s Committees of the province and central-affiliated cities (hereinafter referred to as People’s Committee of the province) to notify occupiers of such apartments of the inspection conclusion in writing. The written inspection conclusion shall be published on the portal of the People’s Committee of the province and the portal of the Department of Construction and shall be posted at least once on the local press of the apartment building.

The written inspection conclusion shall give a clear conclusion of the run-down apartment building or the dangerous apartment building under guidelines of the Ministry of Construction regulated in clause 1 of this Article.

3. In the event that an apartment complex whose plan for reconstruction is approved by the State competent authorities has at least 01 block that needs demolishing to be reconstructed according to the written notification of the People’s Committee of the province and many wear-and-tear blocks beyond the demolition, the whole apartment complex shall uniformly be rebuilt according to the renovation/reconstruction plan approved by the People’s Committee of the province.

Article 7. Development and announcement of plans for renovation and reconstruction of apartment buildings

1. After the quality inspection of the apartment building, the Department of Construction shall develop a renovation/reconstruction plan within its administration and submit it to the People’s Committee of the province to approve. The renovation/reconstruction plan shall be published on the portal of the People’s Committee of the province, the portal of the Department of Construction at the head offices of the People’s Committee of the district and the People’s Committee of the commune in a period of at least 30 days, and concurrently notified to residents within the scope of the project of the aforesaid plan.

Where any feedback on the renovation/reconstruction plan, the Department of Construction shall review and respond to such feedback within the period of 15 working days from the date of receipt of such feedback.

Where any supplementation or adjustments of the renovation/reconstruction plan, the Department of Construction shall propose a plan for such supplementation and submit it to the People’s Committee of the province to review for approval within its jurisdiction.

2. The renovation/reconstruction plan may be made and approved independently of the local housing development plan or may be developed in combination of the local housing development plan.

3. The renovation/reconstruction plan which must be demolished to be reconstructed stipulated in Article 110 of the law on housing includes:

a) A list of run-down apartment building, dangerous apartment buildings and apartment buildings which must be demolished to be reconstructed to achieve the uniformity across demolished apartment buildings according to the construction planning approved by the State competent authorities;

b) The scope and geographical limitation of renovation and reconstruction of the apartment building;

c) Primary criteria of planning – architecture of the renovated and reconstructed area (the height of works; building density, floor area ratio);

d) Estimates of capital distribution, forms of capital mobilization for renovation and reconstruction of apartment buildings;

dd) Duration of a renovation/reconstruction project and its schedule;

e) Responsibilities of relevant organizations and individuals for the plan implementation.

4. According to the renovation/reconstruction plan approved and published by the People's Committee of the province, the occupier of the apartment building that must be demolished to be reconstructed shall select a real estate enterprise to invest in or contribute capital to the renovation/reconstruction project under Article 9 of this Decree.

5. With respect to run-down apartment buildings and apartment buildings which may not be demolished but are included to be reconstructed to achieve the uniformity across demolished apartment buildings regulated in clause 1 and clause 2 of Article 110 of the law on housing, if occupiers of such apartment buildings fail to appoint a real estate enterprise being the investor of the project within a period of 12 months from the date of announcement of the renovation/reconstruction plan of the People’s Committee of the province, the People’s Committee of the province shall forcibly demolish the apartment building and execute the plan as regulated in clause 2, Article 113 of the law on housing.

6. With regard to dangerous apartment buildings, if the occupiers of such buildings fail to select a real estate enterprise being the investor of the project within 03 months from the date of urgent evacuation for demolition, the People’s Committee of the province shall invest in renovation and reconstruction of the apartment building as regulated in clause 2, article 113 of the law on housing.

Article 8. Renovation/reconstruction planning

1. The planning on renovation and reconstruction of apartment buildings (hereinafter referred to as renovation/reconstruction planning) shall ensure the uniformity across all technical infrastructures, social infrastructures and the connection with neighboring areas; ensure sufficient area and space (including underground works) for public services.

2. The development, appraisal, approval and adjustment to planning in the areas of renovation and reconstruction of apartment buildings shall comply with regulations of laws on urban planning and laws on construction;

3. According to the renovation/reconstruction plan approved and published by the People's Committee of the province under Article 7 of this Decree, the People's Committee of the province shall review the renovation/reconstruction planning under following regulations:

a) With respect to an apartment building that must be demolished to be renovated and reconstructed located in approved zoning plans (ratio 1/2000 or 1/5000) without any adjustments or addition, the execution of the plan shall:

- In case of an apartment complex or detached apartment building with the area of less than 2 hectares, the investor shall develop the investment renovation/reconstruction project of the apartment building under regulations of laws on construction planning and laws on construction and does not need develop any detailed planning;

- In case of the apartment building with the area of above 2 hectares, the investor shall develop a detailed planning (ratio 1/500) and submit it to competent authorities to approve under regulations of laws on urban planning prior to the development of the renovation/reconstruction project of the apartment building.

b) Where an apartment building need demolishing for renovation and reconstruction as the locality of approved zoning plans (ratio 1/2000 or 1/5000) and detailed planning (ratio 1/500) or the existing zoning plan and detailed planning, which need adjusting and supplementing, the investor of the project shall apply for planning permission for the area of the renovated and reconstructed apartment building under regulations of laws on urban planning prior to development of the renovation/reconstruction project of the apartment building.

4. Within 30 days from the day on which the detailed planning on reconstruction of the apartment building under clause 3 of this Article is approved, the Department of Construction (or Department of Planning and Architecture, if any) shall publish the detailed planning on the portal and at the head office of Department of Construction, head offices of the Department of Planning and Architecture, the People’s Committee of the province and the People’s Committee of the commune in a minimum period of 30 days.

5. According to the overall planning and detailed planning of the area of renovated and reconstructed area approved by competent authorities, the People’s Committee of the province shall decide to give permission for adjustment to the floor area ratio, the height of the works to ensure the connection with infrastructure system, the harmony of architectural space according to the approved planning and the effectiveness of the project.

In case of adjustments to increase in the floor area ratio and the height of the works in the inner city under the scope of limitations of high-rise building, building density and residential density, according to the overall planning approved by competent authorities, such adjustments shall be reviewed and approved by the Prime Minister.

6. Published items of the detailed planning on renovation and reconstruction of an apartment building:

A) The name of the apartment building and detached apartment building;

b) The location of the project;

c) The realities, characteristics of the current area, boundaries, area of land and population of the area in the scope of the project;

d) Criteria related to planning and architectures after the renovation and reconstruction: The height of works; the floor area ratio; building density; the area of housing and commercial & service works; technical and social infrastructures, plantations and public works (if any); requirements for architectural space organization; landscapes, environment, standards and tie-in works in urban technical infrastructure (including underground works);

đ) The duration and schedule of the project and stages of investment (if any)

Article 9. Selection of investors in renovation/reconstruction projects

1. Procedures for selection of an investor that is a real estate enterprise investing in or contribute capital to renovation and reconstruction of an apartment building under clause 1, Article 5 of this Decree:

a) After the announcement of the renovation/reconstruction plan under regulations in clause 1, clause 2 and clause 3, Article 37 of this Decree, the People’s Committee of the province shall direct the Department of Construction to make a list of real estate enterprises qualified for being the investor and send it to occupiers of apartment buildings that must be demolished to be reconstructed;

a) The list of real estate enterprises qualified for being the investor made by the Department of Construction shall be published at the head office of the People’s Committee of the province and at population groups as the locality of the apartment building in at least 15 working days prior to the apartment building meeting;

c) In addition to the real estate enterprises in the list recommended by the Department of Construction, other real estate enterprises may directly register with the occupier of the apartment building that must be demolished to reconstructed for being introduced at the Apartment building meeting;

d) The management board of the apartment building or the People’s Committee of the district (for an apartment building that has no management board) shall send invitations to the occupier of the apartment building in order to hold an apartment building meeting with the aim of selecting an investor. The investor shall be selected based on following principles:

- The selection of the investor shall be voted under the majority rule, and shall be made on record with the signatures of chairpersons and the secretary of the Meeting of the apartment buildings;

- With regard to an apartment building in which a part of demolished area belongs to the State, the representative of this area shall attend the apartment building meeting;

- Consultants may be invited to attend the apartment building meeting to give advice on selection of investors. Cost for hiring consultants shall be negotiable and paid by the occupiers;

- At least 70% of the total number of the apartment owners building shall attend the apartment building meeting;

- The occupiers shall recommend a potential investor based on applications for project bidding and plans for compensation, relocation and assistance proposed by the real estate enterprise. An application for project bidding shall be made in accordance with the guidance of the Ministry of Construction and shall be enclosed with a plan for renovation, assistance and relocation as regulated in Article 116 of the law on housing and clause 1, Article 14 of this Decree.

dd) If there is only one real estate enterprise registering for project bidding and it receives 51% of the total vote from the apartment owners, the People’s Committee of the province shall consider appointing it as the investor.

e) If there are more than one real estate enterprise registering for project bidding, the People’s Committee of the province shall consider appointing the one that receives the highest number of vote from the occupiers who attend the apartment building meeting;

g) If there are more than 03 real estate enterprises applying for the project, the management board of the apartment building (or representatives of the occupiers where management boards have not established yet) shall take charge of and cooperate with consultants (if any) to select up to 03 real estate enterprises to report to the apartment building meeting;

h) If the first apartment building meeting fails to select an investor, the management board or the People’s Committee of the district shall hold the second apartment building meeting, within 30 days from the day on which the first meeting takes place, to appoint an investor and adopt a plan for compensation, assistance and relocation under point d of this Clause;

i) After an investor is selected, chairpersons shall submit a report on proposed selection of the investor and the plan for compensation, relocation and assistance drawn by the selected real estate enterprise to the Department of Construction where the project is located.

Within 20 working days from the date of receipt of the report, the Department of Construction shall appraise the selection of the investor and the plan for compensation, assistance and relocation and submit to the People’s Committee of the province. Within 10 working days from the date of receipt of the appraisal document of the Department of Construction, the People’s Committee of the province shall review and issue an acceptance document of the investor and the plan for compensation, assistance and relocation.

k) After the People’s Committee of the province issued the decision on acceptance of the investor and the plan for compensation, assistance and relocation of, all occupiers (including those who object to the approved plan) shall comply with the plan and the investor approved by the People’s Committee of the province; the People’s Committee of the province shall forcibly displace those who disobey the appointed investor and the approved plan for compensation, assistance and relocation;

l) After 90 days from the date of issuance of acceptance document of the investor, the investor; however, fails to execute the project in accordance with regulations of laws on construction and law on housing due to the investor’s faults, the People’s Committee of the province shall withdraw the acceptance document and direct to hold another Apartment building meeting to select another investor.

2. If the State directly invests in renovation and reconstruction of the apartment building under point a, clause 2, Article 5 of this Decree, the Department of Construction shall request the People’s Committee of the province to select the investor under regulations of laws on public investment, laws on housing and other relevant laws;

3. In the event of the State offers a BT contract to the investor under point b, clause 2, Article 5 of this Decree, the Department of Construction shall select an investor by bidding or direct contracting under regulations of the law on housing and law on bidding.

Article 10. Development, appraisal, approval and execution of renovation/reconstruction projects

1. The development, appraisal, approval and execution of a renovation/construction project shall be complied with regulations of the laws on construction and relevant laws;

2. The application and procedure for approval for a renovation/reconstruction project shall comply with regulations of laws on investment, the law on housing and other relevant laws;

3. The execution of a renovation and reconstruction project, from the stage of design, construction, and acceptance to operation within the scope of the project shall comply with regulations of laws on construction and relevant laws;

Article 11. Demolition of apartment buildings

1. If a real estate enterprise invests in or contributes capital together with the occupiers to renovation and reconstruction of an apartment building under clause 1, Article 5 of this Decree, the investor of the project shall execute the demolition as follows:

a) If the investor is capable of construction, the investor shall demolish the apartment building on their own or hire a capable entity carry out the demolition;

b) Prior to demolition, the investor shall develop a plan for demolition of the apartment building under point c of this clause and submit it to the Department of Construction to review for approval. The Department of Construction shall appraise and approve for the plan for demolition within 30 day from the date of receipt of the plan for demolition of the apartment building of the investor;

c) Main items in the plan for demolition:

- The name of the project (or works);

- The location of the project

- The workload, quantity and scale of the works which need demolishing;

- Technical solutions and construction;

- HSE measures;

- The number of workers, types of construction vehicles and equipment used for demolition;

- Demolition duration and progress;

- Other relevant items (if any).

2. If the State invests in renovation and reconstruction of the apartment building under clause 2, Article 5 of this Decree, the investor appointed by the People’s Committee of the province shall responsible for demolishing this apartment building according to the process and procedure regulated in clause 1 of this Decree.

3. If a dangerous apartment building is forcibly demolished under the Decision of the People’s Committee of the province, the Department of Construction shall propose a plan for movement, temporary relocation and enforcement measures for urgent demolition to submit to the People’s Committee of the province.

Section 2. RIGHTS AND RESPONSIBILITIES OF INVESTORS AND OCCUPIERS FOR EXECUTION OF RENOVATION/RECONSTRUCTION PROJECTS

Article 12. Rights and responsibilities of investors of apartment buildings for execution of renovation/reconstruction projects

1. Rights of investors in renovation/reconstruction projects:

a) Request relevant organizations and authorities to comply with procedures for development, appraisal and execution of a renovation/reconstruction project regulated in Vietnam laws;

b) Enter into agreements on lease, lease purchase and sale of housing and service works (if any) within the scope of the project; raise capital, collect payments from such agreements under regulations of the law on housing and laws on real estate trading in respect of service works that the investor is permitted to do business and the remaining area of the house after relocation as agreement signed with the occupier of the apartment building and approved by the People’s Committee of the province;

c) Manage and operate technical infrastructure system within the scope of the project under the decision on investment in the project issued by the State competent authorities;

d) Request the State authorities competent to issue the Certificate to houses in the scope of the project to accommodate the occupiers at the old site; be permitted to transfer his/her houses and construction works to other occupiers under the law on housing and law on real estate trading;

dd) Receive assistance in forms of capital and temporary housing (if any) from the People’s Committee of the province and incentives during the execution of the project as regulated in this Decree and relevant laws

e) Have other rights regulated in laws on construction, laws on land and relevant laws.

2. Responsibilities of investors in renovation/reconstruction projects:

a) Take responsibilities of an investor regulated in clause 1,2,3,4,5,6,7,8,9 and 10, Article 26 of the laws on housing;

b) provide temporary housing, assistance and compensation for the occupiers of the demolished apartment building under regulations of the law on housing, this Decree and other relevant laws;

c) Fulfill financial obligations and others under regulations of this and relevant laws.

Article 13. Rights and responsibilities of occupiers of apartment buildings in renovation/reconstruction projects

1. Rights of occupiers:

a) Participate in selecting real estate enterprises investing in or contribute capital to the renovation/reconstruction project;

b) Select forms of compensation and accommodate relocation at the site or relocation housing and other items regulated in Article 14 of this Decree.

c) Receive the Certificate issued by competent authorities under regulations of laws on relocated housing;

d) Participate in supervising the execution of the project as regulated in laws;

đ) Request the competent authority to change the investor and receive compensation for damage in the event that the investor fails to deliver the scope and the schedule of the project under the decision on investment approved by the State competent authorities. The replacement of the investor shall be adopted at the apartment building meeting and reported to the People’s Committee of the province.

2. Responsibilities of occupiers:

a) Move out to facilitate the demolition of the apartment building and construction works within the scope of the project approved by the competent authorities.

b) Enable the investor and contractors to execute the projects within the scope approved by competent authorities;

c) Follow procedures for obtaining Certificates under regulations of laws.

Article 14. Plans for compensation, assistance and relocation

1. A plan for compensation, assistance and relocation for real estate enterprises that invest in or contribute capital to the renovation/reconstruction project together with the occupiers:

a) The plan for compensation, assistance and relocation shall specify information of the occupiers:

- Full name and address of the occupier;

- The area of the old apartment and others (if any), the location of the apartment of the owner of the apartment building; if the old apartment has patio ancillary works according to the initial design, the area of the ancillary works shall be aggregated with the area of the old apartment for arranging relocation;

- The number of household registration books and residents in the demolished apartment building that need relocation;

- Relocation accommodation: the area and location of the new apartment of the occupier (the occupier shall not pay for the new apartment); the area and location of the additional apartments that the occupier is allowed to buy (if any) if he/she has 2 registration books or more;

- Arrangement for temporary relocation: competent authorities shall assist in forms of cash or accommodate temporary housing (specify the area and location of the temporary apartment of the occupier);

- Other items related to relocation accommodation and temporary relocation mutually agreed by the real estate enterprise and the occupier (if any).

b) The poll on plan for compensation, assistance and relocation shall be conducted together with the selection of the investor at apartment building meeting as regulated in clause 1, Article 9 of this Decree.

c) Procedures for application for compensation, assistance and relocation shall be conducted together with the application for renovation/reconstruction project under regulations in clause 1, Article 9 of this Decree;

d) According to the plan for compensation, assistance and relocation approved by the People’s Committee of the province, the real estate enterprise and the occupier shall sign an agreement on relocation and temporary relocation which is made using the form released by the Ministry of Construction with the occupier.

2. Compensation, assistance and relocation with respect to renovation/reconstruction projects invested by the State:

a) The investor, selected by People’s Committee of the province, shall prepare a plan for compensation, assistant and relocation for the occupier and send it to the Department of Construction. The Department of Construction shall appraise this plan prior to submission to the People’s Committee of the province. Items in the plan for compensation, assistance and relocation:

- The full name and address of the occupier;

- The number of registration books and residents in the demolished apartment building that need relocation;

- The area of the old apartment and others (if any), the location of the apartment of the apartment building; if the old apartment has the patio ancillary works according to the initial design, the area of the patio ancillary works shall be aggregated with the area of the old apartment for arranging relocation;

- Relocation accommodation: the area and location of the new apartment of the occupier (the occupier shall not pay for this apartment); the area and location of the additional apartments that the occupier is allowed to buy (if any) in case he/she has 2 registration books or more;

- Basis of assessment on relocation accommodation: the price of the old apartment, the difference between the price of the old apartment and the price of the new one;

- Provision of temporary relocation: competent authorities shall provide assistance assist in forms of cash or arrange temporary housing (specify the area and location of the temporary apartment of the occupiers);

- Other relevant items (is any).

b) The Department of Construction shall appraise the plan for compensation, assistance and relocation and request the People’s Committee of the province to approve for this plan within 10 working days from the day of receipt of the plan for compensation, assistance and relocation; The People’s Committee of the province shall consider approving the plan for compensation, assistance and relocation within 07 working days from the day of receipt of the plan appraisal document of the Department of Construction;

c) In case of dangerous apartment buildings which need immediately demolishing, the People’s Committee of the province shall direct the enforcement of demolition of such apartment building under regulations in clause 3, Article 11 of this Decree. After the demolition, the investor selected by the People’s Committee of the province shall make a plan for compensation, assistance and relocation and submit it to the People’s Committee of the province. The procedure for the development of the plan for compensation, assistance and relocation shall be conducted in accordance with regulations in point a and point b of this clause.

3. If the occupier does not require settling in at the old site, the relocation accommodation shall be conducted in accordance with regulations in Article 38 of the law on housing. If the occupier requires compensation in cash and has a demand to get a social house through purchase, leasing out or lease purchase agreements, this case shall be dealt with in accordance with the law on social house management and development.

4. With regard to social infrastructure in the scope of the project (if any), the compensation and assistance shall be given in accordance with regulations of laws on land.

5. For works which are expanded without permission or constructed on the illegal occupied land shall only receive assistance under regulations of the on land and shall not be given compensation. For those who are eligible for social houses through purchase, leasing out or lease purchase agreements shall be deal with in accordance with the laws on housing;

6. Expenditures on temporary accommodation shall be included in the renovation /construction project.