Chương 2 Nghị định 153/2007/NĐ-CP: Kinh doanh bất động sản

Chapter II

REAL ESTATE BUSINESS 

Article 3 Legal capital requirements for an enterprise or co-operative to conduct real estate business 

1. Enterprises or co-operatives wishing for trading real estate must have legal capital of 6 (six) billion dong (VND)

2. Certification of the legal capital of any enterprise or co-operative shall be implemented in accordance with the laws on enterprises, on co-operatives and on business registration. 

Article 4 Purchase and sale in the form of advance payment of houses and buildings to be formed in the future

The investor of a real estate business project and a client may agree in contract about the purchase and sale in the form of advance payment of houses and buildings to be formed in the future but they must ensure the following principles and requirements:

1. Advance payments must be made on a number of occasions, and the initial payment may only be collected when the investor has commenced construction of technical infrastructure in accordance with the schedule and contents of the approved project. Subsequent occasions of collecting advance payments must be consistent with the schedule for construction of the house or building.

Residential zone projects, in addition to complying with the above provision, must also be implemented in accordance with the law on residential housing.

2. Investors must use advance payments from clients for the correct objective of investing in the creation of the real estate.

3. Clients making advance payments shall be entitled to the purchase or assignment price of the real estate as at the time of signing the contract, unless the parties otherwise agree.

4. Any investor who hands over the real estate [to the client] later than the scheduled date stipulated in the contract shall be contractually liable to the client and must pay the client interest on the advance payments for the period of delay, calculated at the commercial bank loan interest rate as at the time of handover of the real estate.

If an investor hands over a house or building incorrectly in terms of the quality or time-limit [stipulated in the contract] or incorrectly in terms of other contractual commitments, then the investor shall be liable to the client. The client shall have the right to demand the investor take measures to promptly remedy losses and to compensate for losses caused by the fault of the investor, and if the investor fails to do so then the client shall have the right to unilaterally terminate or rescind the contract and the investor must refund the entire amount of money paid in advance together with interest thereon at the commercial bank loan interest rate.

5. Any client who fails to correctly implement its contractual undertaking to make advance payments shall be contractually liable to the investor and must pay the investor interest on late payment for the period of delay calculated at the commercial bank loan interest rate as at the time of payment. The investor shall have the right to demand that the client correctly implement its contractual undertakings and to pay compensation for loss or damage caused by the client, and if the client fails to do so then the investor shall have the right to unilaterally terminate or rescind the contract and the client shall be liable to pay the contractual penalty and shall be liable for any loss caused by the contractual breach.

6. Selection of the commercial bank loan interest rate stipulated in clauses 4 and 5 of this article must be agreed in the contract. 

Article 5 Financial capability conditions applicable to investors of new urban zone, residential zone and industrial zone technical infrastructure projects 

1. The investor of a new urban zone, residential zone or industrial zone technical infrastructure project must be the owner of the following investment capital in order to implement such project:

(a) Not less that twenty (20) per cent of the total investment [capital] of the approved project in the case of a new urban zone or industrial zone technical infrastructure project.

(b) In the case of a residential zone project, not less that fifteen (15) per cent of the total investment [capital] of the approved project if it uses less that twenty (20) hectares, and not less than twenty (20) per cent of the total investment [capital] of the approved project if it uses twenty (20) or more hectares of land.

2. The total investment [capital] of any new urban zone, residential zone or industrial zone technical infrastructure project shall be implemented in accordance with the provisions of the corresponding [relevant] law.

3. Capital owned by an investor means the investor's equity calculated up to the year prior to the year in which the investor implements such new urban zone, residential zone or industrial zone technical infrastructure project, and as specified in the investor's financial statements certified by an independent auditor. An authorized body must provide written certification in the case of a newly established enterprise or co-operative.

An investor shall be responsible to prove its financial capability to implement a project by formulating a list of the projects in which such investor is currently investing, and setting out the total investment capital of each project. 

Article 6 Assignment of an entire new urban zone, residential zone or industrial zone technical infrastructure project 

1. The assignment of an entire new urban zone, residential zone or industrial zone technical infrastructure project means the assignment of the entire rights, obligations and legal interests of the former investor to the new investor via a written contract, where such assignment is permitted by the competent State authority.

2. In the case of a new urban zone, residential zone or industrial zone technical infrastructure project currently being implemented but which is incomplete, and the investor meets difficulties [and/or] does not have sufficiently adequate conditions to continue to implement the project in accordance with the approved project schedule and contents, or where the investor no longer has a requirement to continue to implement the project, then the investor shall prepare an application file and send it to the provincial people's committee to consider permitting assignment of the entire project to another investor.

3. The authority which permitted the investment shall be the competent authority to permit assignment of the project. Any grant of permission to assign a project must ensure that the project is not interrupted and that its objectives remain unchanged, and the assignment must ensure the rights and obligations of the client and other related parties.

4. The conditions and procedures for assignment of an entire project shall be implemented in accordance with articles 7 and 8 of this Decree.

5. The former investor shall be responsible to promptly, completely and publicly notify [assignment of the entire project] and to satisfactorily resolve the legal rights and interests of the client and other related parties.

6. The new investor shall be liable to fully discharge the obligations of an investor stipulated in article 20 [of the Law on Real Estate Business] and shall be entitled to the rights and benefits of an investor stipulated in article 19 of the Law on Real Estate Business, in the documents of the competent State authority permitting the investment, and in the contract of assignment of the project as signed by both parties. 

Article 7 Conditions for assigning an entire project 

An entire project shall be permitted to be assigned when it satisfies all the following conditions:

1. The project is not in the category of projects which must be dealt with pursuant to article 10 of this Decree.

2. The project has been approved in accordance with law.

3. The investor already has the land use right via a land lease contract, a decision allocating land or a land use right certificate.

4. The work of site clearance and payment of compensation for the entire project or project phase has been completed, and there are technical infrastructure works corresponding to the contents and schedule for implementing the approved project.

5. A new investor must satisfy all the following conditions:

(a) The investor must be an organization or individual conducting real estate business who satisfies the conditions stipulated in article 8.1 of the Law on Real Estate Business and in article 3 of this Decree.

(b) The investor must satisfy the financial capability conditions applicable to project investors stipulated in article 5 of this Decree.

(c) The investor must provide a written undertaking to implement the project correctly in accordance with the approved schedule. 

Article 8 Procedures for assignment of an entire new urban zone, residential zone or industrial zone technical infrastructure project 

1. In the case of a project for which a provincial people's committee provided permission for the investment, then a provincial people's committee shall consider and resolve [the issue of assignment of such project]. In the case of a project for which the Prime Minister of the Government provided permission for the investment, then a provincial people's committee shall obtain opinions from the relevant authorities in order to submit a report to the Prime Minister for the latter to make a decision.

2. An investor shall send an application file for assignment of the entire project to the provincial people's committee in the locality of the project. The application file shall contain the following documents:

(a) Request for assignment of the entire project specifying the reason for the assignment, the status of implementation of investment in the project up until the date of the application, a proposal regarding the new investor, and a plan for resolving the rights and obligations of the client and related parties.

(b) The document permitting the investment from the competent State authority.

(c) The project

(d) The land lease contract, decision allocating the land, or land use right certificate.

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3. The provincial people's committee shall be responsible to consider and provide a written response to the investor granting or refusing to grant permission for assignment of the entire project, within a time-limit of forty five (45) days from the date of receipt of a complete and valid application file. 

Article 9 Contract of assignment of an entire new urban zone, residential zone or industrial zone technical infrastructure project 

1. A contract of assignment of an entire project shall be as agreed by the two parties, and must specify that the new investor is liable to fully discharge the obligations of the former investor owing to the client and related parties, and other obligations in accordance with the approved project contents.

2. The former investor must notify the contract of assignment of the entire project to the client and related parties in order for them to implement and perform such contract, and must also notify such contract to the relevant authorities to enable them to monitor and administer it. 

Article 10 Dealing with a new urban zone, residential zone or industrial zone technical infrastructure project when the project investor is in breach 

1. The authority which permitted the investment shall issue a decision revoking the written instrument which permitted the investment or the project investment certificate in order to hand over [the project] to another investor to continue to implement the project, in the following circumstances:

(a) The investor breached a provision of the laws on investment and construction, zoning, architecture [and/or] land administration and failed to promptly remedy such breach pursuant to a request from the competent State authority.

(b) The investor failed to correctly implement the contents of the project, or after twelve (12) months from the date of receipt of handover of the land failed to commence implementation of the project, or is more than twenty four (24) months behind the approved schedule.

2. Any investor whose project is revoked as stipulated in clause 1 of this article shall not be permitted to be assigned to act as investor of a new real estate project for a period of two (2) years as from the date on which such earlier project was withdrawn.

3. An authority which issues a decision withdrawing the written instrument which permitted the investment or the investment certificate shall be responsible:

(a) To require the former investor to resolve existing project issues and to ensure the rights, obligations and responsibilities of the client and related parties.

(b) To announce and to arrange selection of a new investor to continue implementation of the project.