What are the regulations on the procedures for transfer of contracts for purchase or lease purchase of off-the-plan houses in Vietnam?
- What are the conditions for transfer of contracts for purchase or lease purchase of off-the-plan houses in Vietnam?
- Does the contracts for purchase or lease purchase of off-the-plan houses have to be notarized?
- What are the regulations on the procedures for transfer of contracts for purchase or lease purchase of off-the-plan houses in Vietnam?
What are the conditions for transfer of contracts for purchase or lease purchase of off-the-plan houses in Vietnam?
Conditions for transfer of contracts for purchase or lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works according to Article 7 of Decree No. 02/2022/ND-CP are as follows:
- The transfer of contracts for purchase/lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works do not apply to contracts for purchase/lease purchase of social housing.
- The transfer of a contract for purchase or lease purchase of a house or construction work must satisfy the following conditions:
+ There is a contract for purchase or lease purchase made according to Article 6 of Decree No. 02/2022/ND-CP; in case the parties have signed a contract before the effective date of this Decree, the signed contract must be provided;
+ The applicant has not submitted an application to a competent authority for issuance of a Certificate of land use rights and ownership of houses and property on land (hereinafter referred to as the Certificate);
+ The contract for purchase or lease purchase of house or construction work must be free of disputes or litigation;
+ The house or construction work under the contract for purchase and lease purchase is not subject to distraint or mortgage to secure the performance of obligations as prescribed by law, unless otherwise agreed by the mortgage lender.
- The contract for purchase or lease purchase of house or construction work shall be wholly transferred.
In case of purchase or lease purchase of multiple houses/construction works in the same contract but the parties wish to transfer each house/construction work, the transferor shall agree with the investor to amend the contract for purchase or lease purchase of multiple house/construction work or sign a contract addendum before transferring the contract as prescribed.
What are the regulations on the procedures for transfer of contracts for purchase or lease purchase of off-the-plan houses in Vietnam?
Does the contracts for purchase or lease purchase of off-the-plan houses have to be notarized?
Pursuant to Clause 2, Article 17 of the 2014 Law on Real Estate Trading in Vietnam stipulating as follows:
Real estate trading agreement
…
2. A real estate trading agreement must be made in writing. The agreement notarizing or authenticating shall be agreed by contracting parties, excluding building sale or lease purchase agreements or land transfer agreements concluded by households and individuals prescribed in Clause 2 Article 10 of this Law.
Thus, for real estate trading agreements including off-the-plan houses, the agreement notarizing or authenticating shall be agreed by contracting parties but not compulsory.
What are the regulations on the procedures for transfer of contracts for purchase or lease purchase of off-the-plan houses in Vietnam?
According to the provisions of Article 8 of Decree No. 02/2022/ND-CP on the procedures for transfer of contracts for purchase/lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works as follows:
Procedures for transfer of contracts for purchase/lease purchase of off-the-plan houses and for transfer of contracts for lease purchase of existing houses and construction works
1. Procedures for transferring a contract for purchase of off-the-plan house must comply with the housing law.
2. Procedures for transfer of a contract for lease purchase of off-the-plan houses and for transfer of a contract for lease purchase of existing house or construction work:
a) The transferor and the transferee agree to make a contract transfer document using Form No. 09 of the Appendix to this Decree.
The contract transfer document must be made in 06 copies (02 copies are kept by the project investor, 01 copy is submitted to the tax authority, 01 copy is submitted to the certificate-receiving agency, 01 copy is kept by the transferor, 01 copy is kept by the transferee; in case the contract transfer document must be notarized, an additional 01 copy must be kept at a notarial practice organization.
If the transferor is an enterprise engaged in the real estate trading, it is not required to notarize the transfer, unless the parties so request;
b) One of the parties shall apply to the notarial practice organization for notarization of the contract transfer document. The application for notarization includes: originals of the contract transfer document; the original of the contract firstly signed with the project investor, in case of transferring one or several houses and construction works out of the total number of houses and construction works that have been leased purchase under the contract, the original contract or contract addendum showing the transferred house or construction work signed with the investor must be submitted; documents proving the amount of money the transferor has paid to the project investor; the original or a certified true copy of the record of handover of the house or construction work (if any) and other documents as prescribed by the notarization law;
c) After notarization (except for exemption from notarization), the transferor and transferee are responsible for paying taxes, fees and charges related to the contract transfer in accordance with law;
d) After implementing the provision of Point c of this Clause, either the transferor or the transferee shall request the investor in writing to certify the contract transfer, including: 06 originals of the contract transfer document enclosed with the original of the contract; in case of transferring one or several houses and construction works out of the total number of houses and construction works that have been leased purchase under the contract, the original contract or contract addendum showing the transferred house or construction work signed with the investor must be submitted; documents proving that the tax(es) has/have been paid or exempted according to tax law;
dd) Within 05 working days from the date of receipt of the documents specified at Point d of this Clause, the investor of the real estate project is responsible for reviewing and certifying the contract transfer document and not collecting any fees. After certifying the contract transfer documents, the investor keeps 02 originals of the contract transfer document and returns to the applicant 04 contract transfer documents together with the documents received in accordance with Point d of this Clause;
e) From the date on which the contract transfer document is certified by the investor, the contract transferee may continue to perform the rights and obligations of the tenant/buyer to the investor according to the signed contract and the contract transfer document;
g) In cases where the contract is transferred from the second time onward, the transferor must comply with the procedures specified in this Article.
h) The last transferee of contract is granted a Certificate by a competent authority in accordance with the law on land.
3. For a real estate enterprise that receives a contract transfer, within a maximum of 5 days from the date of completion of the transfer specified at Point dd, Clause 2 of this Article, it must send a written notice of transfer receipt (including the name and address of the real estate project, the name of the enterprise transferring the contract, the number of contracts, the number of houses and construction works under the transfer contract) to the central housing management authority for consolidation and monitoring.
Thus, the procedures for transfer of a contract for lease purchase of off-the-plan houses and for transfer of a contract for lease purchase of existing house or construction work are implemented as follows:
- Make a contract transfer document.
- Apply to the notarial practice organization for notarization of the contract transfer document.
- Pay taxes, fees and charges related to the contract transfer in accordance with law after notarization;
- Request the investor in writing to certify the contract transfer;
- From the date on which the contract transfer document is certified by the investor, the contract transferee may continue to perform the rights and obligations of the tenant/buyer to the investor according to the signed contract and the contract transfer document;
Note: In cases where the contract is transferred from the second time onward, the transferor must comply with the procedures specified in this Article.
- The last transferee of contract is granted a Certificate by a competent authority in accordance with the law on land.
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