Five types of real estate contracts abolished mandatory notarization procedure

 According to the regulation of Civil Code 2015, some of the transactions which are required to implement the process of notarization and registration according to the regulation of the laws. As real estate transactions are normally at high value, the process of notarization and registration would help parties involved to be protected from falsified transactions.

As the stipulated in the Real estate trading 2014, the real estate trading agreement must be made in writing. The agreement notarizing or authenticating shall be discussed by contracting parties. However, the real estate trading agreement in which on building sale or lease purchase agreements or land transfer agreements concluded by households and individuals who conduct small-scale or irregular transactions of real estate sale, transfer, lease-out, and lease purchase shall not be required to set up enterprises, but they shall make tax declaration as prescribed need to be implemented the mandatory notarization procedure.

The procedure and dossier for notarization the real estate agreement will be implement according to the regulations of Law on notarization 2014.

Our real estate lawyers in Vietnam recommend client to have house leasing contracts voluntarily notarized to better protect their interests in disputes or any future issues.

For more information or legal advice in real estate transactions, we are glad to assist.  ANT Lawyers, your lawyers in Vietnam

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Real Estate and Construction

 With substantial real estate industry experience, we handle a wide range of sophisticated transactions for nearly every product type. What distinguishes us from many law firms is our cost-effective teams and our knowledge of real estate industry fundamentals.

Our lawyers represent real estate buyers, investors, landlords and tenants in the negotiation, acquisition of residential apartments, houses, tenant leases of office, industrial, retail and other commercial space.

“They really know what we care about, where our risk buttons are. They do a great job in representing us, helping us identify risk, and take us off the ledge.”

We have particular experience with regard to the structuring, drafting and negotiating of engineering, procurement and construction (EPC) contracts for construction projects. Our lawyers work closely with clients to structure and negotiate EPC arrangements that meet the competing requirements of owners, contractors, lenders and other project participants. Our lawyers are trained to anticipate issues and recognize opportunities in the project development context.

We have a deep understanding of the industries we serve and that knowledge provides us with the ability to deliver better solutions.

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Legal Regulations in Purchasing Real Estate for Foreigners in Vietnam

 Vietnam has become a better place for foreigners to visiting and staying. Many chose Vietnam as home and they come to Ho Chi Minh City, Ha Noi, Da Nang, Phu Quoc, Nha Trang… to buy real estates for living. Many foreigners consider seeking understanding and with the advisory of their real estate lawyers in Vietnam to purchase the property under their name for best interest protection. There are a number of foreigners seek to cooperate with local Vietnamese under investment agreement to invest in properties. It has always been suggested the buyer or investor to receive legal advice from real estate lawyers and law firms in Vietnam before committing the investment to a certain extent.

According to the Law on housing 2005, foreign organizations and individuals investing in construction of houses for sale and lease in Vietnam have the right to own the houses in Vietnam. However, according to the provisions of the Law on housing 2014, the house owners expand and include foreigners being investors building the houses under investor projects, foreign organizations operating in Vietnam and foreign individuals being allowed to enter Vietnam under the provisions of the Law on Entry, Exit, Transit and Residence of Foreigners in Vietnam; and are not entitled to diplomatic privileges and immunities.

Under the provisions of the Law on housing 2014, foreign organizations and individuals are allowed to own apartments, individual houses (villas and townhouses) in commercial housing projects. The total number of foreign individuals/organizations owned does not exceed 30% of an apartment building or does not exceed 10% or 250 houses of a housing project. Foreign individuals may own houses for up to 50 years and are allowed to extend for no more than 50 years. Foreign organizations own the houses according to the time limit on the Investment Registration Certificate and the extension period. During the time of owning the houses, foreign individuals are allowed to sublease, but foreign organizations are not allowed to sublease the houses.

For foreign individuals/organizations, when buying the houses in Vietnam, it is necessary to have a well drafted sales contract for purchase and sale of the houses because all rights and obligations related to the purchase, sales and ownership of houses are regulated in the contract. Therefore, the buyer should consider the contract carefully, usually with the help of real estate lawyers whom understand Vietnam laws before signing, in order to protect their legitimate rights and interests.

The foreigner when buying and selling the houses, especially off-plan house, need to also pay attention to the regulations on payment schedule in the contract. According to Article 57 of the Law on housing 2015, the payment in the purchase, sales, lease sales of the off-plan real estate in Vietnam is carried out in installments, and the first time must not exceed 30% of the contract value, the next times must be in accordance with the construction schedule, however, not exceeding 50% of the contract value when not handed over when the buyer is an enterprise with foreign investment, not exceeding 70% the value of contract, if the buyer is the foreigner individual the payment is not exceed 50% the value of the contract before handing over the house to the buyer. Until the buyer is issued with a certificate of land use right, ownership of houses and other assets attached to the land, the buyer shall pay no more than 95% the value of contract.

Foreigners in Vietnam need to be assisted to be familiar with the laws relating to the purchase and sale of real estate in order to protect their legitimate rights and interests when participating in transactions in Vietnam. It is important that the foreigners consider using the services of law firm in Vietnam specializing in real estate to advise and help manage the transaction.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have attorneys in Hanoi, Ho Chi Minh and Danang. 

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How Foreigners Could Buy Real Estate in Vietnam?

 

Can foreigners buy real estate in Vietnam?

Regulations on foreigners whom wish to buy real estate in Vietnam are regulated in Civil Code, Law on Land, Law on Housing, and other on decrees that guide the Law on Housing and related documents.

Can foreigners buy land in Vietnam?

For land, foreign individuals are not eligible to use land assigned or leased by the State, recognized land use rights, received transfer of land use rights. However, a foreign-invested enterprise could be allocated or leased land by the State, recognized land use rights, or received a land use right transfer. Foreign-invested enterprises that are assigned land by the State with the collection of land use levies to execute investment projects on the construction of houses for sale or for sale in combination with lease.

Can foreigners buy houses in Vietnam? or can foreigner buy apartments in Vietnam?

For housing, foreign entities eligible for the homeownership in Vietnam include: foreign entities who invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law; foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign-invested funds and branches of foreign banks operating in Vietnam (hereinafter referred to as foreign organization); foreign individuals who are allowed to enter Vietnam.

The foreign entities are eligible for the homeownership in Vietnam if they invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law; or buy, rent and purchase, receive, or inherit commercial housing including apartments and separate houses in the project for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.

What conditions to meet when foreigners buy real estate in Vietnam?

Foreign organizations and individuals must have documents proving being the eligible subjects and meeting conditions to own houses in Vietnam. A foreign individual must have an unexpired passport bearing the entry seal of the Vietnam’s immigration authority and not given diplomatic immunity and privileges according to Ordinance on diplomatic immunity and privileges of diplomatic missions, consular offices, and representative authorities of international organizations in Vietnam. Foreign organizations must be subjects of owning houses in Vietnam which have investment registration certificate or a permission issued by a Vietnam’s competent authority for operation in Vietnam which is still unexpired at the time of housing transaction (hereinafter referred to as investment registration certificate).

A foreign entity shall not be granted a Certificate of the house and may only sell or offer it to another entity eligible to own housing in Vietnam in the case being: a foreign organization or individual receives a house as an inheritance or a gift which is located in an area in which foreign entities must not own houses, or the quantity of which exceeds the permissible limits; a foreign organization that does not operate in Vietnam, or a foreign individual who is not permitted to enter Vietnam, receives a house in Vietnam as a gift or an inheritance.

For specific situations, to avoid future dispute in house ownership arisen from the purchase, lease of property, house, land from the state, developer or other seller, or lessor it is important that the client check with dispute property lawyers in Vietnam for eligibility, conditions and other relevant matters.

How real estate lawyers in Vietnam could help client to buy real estate in Vietnam?

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest protection, risk mitigation and regulatory compliance. 

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

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What Are New in Real Estate Trading Business From 2021?

 The Law on Investment 2020 takes effect from January 1, 2021 with many new highlights, including the amendment of conditions for real estate business in the Law on Real Estate Trading 2014.

Specifically, amending regulations on real estate business conditions in the Law on Real Estate Trading 2014 as follows: “Any organizations and individuals trading in real estate must set up enterprises or cooperatives (hereinafter referred to as an enterprise), except for the case specified in Clause 2 of this Article. ”

Clause 1, Article 10 of the 2014 Law on Real Estate Business stipulates that “Any organizations or individuals wish to conduct real estate trading shall set up enterprises or cooperatives (hereinafter referred to as enterprises) and have legal capital not smaller than VND 20 billion, excluding cases prescribed in Clause 2 of this Article.”

In addition, the Law on Investment 2020 also amends regulations on the competence to permit the transfer of all or a portion of real estate projects. For real estate projects approved by investors or granted an investment registration certificate in accordance with the Law on Investment, the competence and procedures for the transfer of all or a portion of the project comply with regulations of the Law on Investment. For real estate projects not falling into the above cases, the competence to permit the transfer of all or a portion of real estate projects is as follows: Provincial People’s Committee decides to allow the transfer of all or a portion of the real estate projects for projects decided by the provincial People’s Committee to invest; The Prime Minister shall decide to permit the transfer of all or a portion of real estate project to projects for which the investment is decided by the Prime Minister.

In case organizations, households or individuals sell, transfer, lease, or lease purchase real estate on a small scale, rarely, it is not required for real estate enterprise to be set up, but they must declare and pay taxes according to the provisions of law.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have law firm in Hanoi, law firm in Ho Chi Minh City and law firm in Da Nang.

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7 Vital Insights Discussed By Real Estate Dispute Law Firms in Vietnam On Resolving Complex Land Issues

 Imagine investing your hard-earned money into a property abroad, excited about the opportunities it promises, only to find yourself embroiled in a tangled legal dispute.

The dream of owning land or property in Vietnam can quickly turn into a frustrating maze of legal uncertainties. Who truly owns the rights to the land? What happens if the property has hidden legal issues? The process can leave you overwhelmed, especially in a country where land laws are both unique and complex.

This is where real estate dispute law firms in Vietnam become your lifeline, offering clarity and solutions in a sea of confusion.

For foreigners, these disputes can be particularly challenging. Navigating Vietnam’s legal framework without understanding its nuances may lead to costly mistakes or prolonged battles.

Whether it’s disputes over land use rights, property ownership, or inheritance, having trusted legal experts to guide you through the process is not just an advantage—it’s a necessity.

Now, let us look into the types of disputes, the legal pathways to resolve them, and how real estate dispute law firms in Vietnam can provide the expertise and support you need.

Understanding the Complexity of Land Disputes in Vietnam

Land disputes, also known as real estate or property disputes, occur when parties disagree over the rights and obligations tied to land use. These disagreements can arise between individuals, families, or organizations and often involve high-value assets.

Common Types of Land Disputes

- Land Use Rights Conflicts: Disputes over who has the legal right to use or manage a plot of land.

- Property Ownership Issues: Conflicts over the ownership of structures, such as houses, attached to land use rights.

- Inheritance Disputes: Disagreements among heirs over the division of land use rights.

- Divorce-Related Property Division: Disputes arising from the division of property, including land, during divorce proceedings.

- Transaction Disputes: Issues related to the sale, lease, sub-lease, or mortgage of land and real estate.

Each dispute type requires a deep understanding of Vietnam’s legal framework, which is why partnering with real estate dispute law firms in Vietnam is essential.

Vietnam’s Unique Land Ownership System

In Vietnam, individuals do not own land outright. Instead, the government owns all land, and individuals or entities can acquire land use rights.

This system creates unique challenges, particularly for foreigners unfamiliar with the legal distinctions. Disputes often arise from misunderstandings about these rights or incomplete documentation. Expert advice from real estate dispute law firms in Vietnam ensures these complexities are addressed effectively.

Legal Pathways to Resolving Land Disputes in Vietnam

Resolving land disputes requires careful adherence to Vietnam’s legal processes. Understanding these steps is key to navigating the system.

1. Negotiation and Mediation

- Direct Negotiation: This is often the first step, where parties attempt to resolve disputes amicably.

- Mediation: Lawyers from real estate dispute law firms in Vietnam often facilitate mediation to help parties reach a mutually acceptable solution without escalating the conflict.

2. Mandatory Conciliation at Commune-Level People’s Committees

For certain disputes, conciliation at the commune-level People’s Committee is a required step before pursuing legal action.

- Procedure: Parties submit a petition to the People’s Committee in the locality where the disputed land is located.

- Timeline: The process must be completed within 45 days.

- Attendance Requirement: All disputing parties must attend. Failure to attend twice results in the conciliation being declared unsuccessful.

3. Escalation to Higher Authorities

If conciliation fails, disputes can proceed in two ways:

-Certified Land Use Rights: Disputes involving legally certified land use rights are brought directly to the People’s Court.

-Uncertified Land Use Rights:

Parties can choose to:

- File a claim with a competent People’s Committee.

- Initiate a lawsuit at the People’s Court under civil procedures.

The Role of Competent People’s Committees

The level of authority involved in resolving disputes depends on the nature of the conflict:

1.Household and Community Disputes

- District-Level People’s Committee:

- Handles disputes among households, individuals, and communities.

- Decisions can be appealed to the provincial-level People’s Committee or the People’s Court.

2.Disputes Involving Organizations or Foreign Entities

- Provincial-Level People’s Committee:

- Manages disputes involving organizations, religious groups, or foreign-invested entities.

- Decisions can be escalated to the Minister of Natural Resources and Environment or the People’s Court.

3.Key Factors in Dispute Resolution

Authorities consider several factors when resolving disputes, particularly those involving uncertified land use rights:

- Evidence of land origin and history of use.

- Actual Usage of the land in dispute, along with surrounding areas.

- Compliance with government-approved land use plans.

- Preferential Policies for individuals with meritorious service to the State.

- Legal Framework governing land allocation and usage.

Real estate dispute law firms in Vietnam play a critical role in gathering and presenting these factors to ensure their clients’ rights are protected.

Unique Challenges for Foreigners

Foreigners investing in real estate in Vietnam face several hurdles:

- Ownership Restrictions: Foreigners can only acquire land use rights, not ownership.

- Legal Complexities: Vietnam’s land laws are highly specific and may seem contradictory to those used to different legal systems.

- Documentation Issues: Incomplete or unclear records can complicate disputes.

Having trusted advisors from real estate dispute law firms in Vietnam can make all the difference in navigating these challenges.

How Real Estate Dispute Law Firms in Vietnam Can Help

1. Legal Consultation

Lawyers provide clear guidance on Vietnam’s land laws, explaining your rights and the options available for resolution.

2. Mediation Support

Mediation can be a complex process, but legal experts ensure negotiations are conducted fairly and lead to enforceable agreements.

3. Conciliation Representation

When disputes require mandatory conciliation at the commune level, real estate dispute law firms in Vietnam handle the paperwork, represent their clients, and ensure compliance with the law.

4. Court Representation

For cases that escalate to the People’s Court, skilled legal representation is essential for navigating Vietnam’s judicial process.

5. Enforcement of Decisions

Legal professionals ensure that court or committee rulings are properly enforced, preventing further disputes.

Preventing Land Disputes: Proactive Measures

While not all disputes are avoidable, taking these steps can significantly reduce the risks:

1.Thorough Due Diligence:

Verify the legality of all documents before purchasing or leasing property.

2.Early Legal Consultation:

Consulting with real estate dispute law firms in Vietnam early can help identify potential risks.

3.Understand Local Laws:

Familiarizing yourself with Vietnamese land laws minimizes surprises during transactions.

4.Draft Clear Agreements:

Comprehensive, legally binding contracts reduce ambiguities.

Land disputes can be stressful and time-consuming, especially when they involve high-value real estate. Vietnam’s legal framework, while intricate, provides clear pathways for resolution. The key to navigating these processes effectively is partnering with the right experts.

Real estate dispute law firms in Vietnam are more than just legal advisors; they are your advocates, strategists, and problem-solvers. Their expertise ensures you’re not only compliant with the law but also protected from unnecessary risks. With their help, even the most puzzling disputes can be resolved, paving the way for smoother real estate transactions and peace of mind.

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What Are New Conditions on Real Estate Purchase and Sale in 2022?

 Real estate business activities have a great influence on socio-economic development.  Accordingly, in order to ensure the legal framework for the current real estate business activities, the Government has issued Decree 02/2022/ND-CP detailing the implementation of a number of articles of the Law on Real Estate Business (“Decree 02/2022/ND-CP”) in order to promptly amend and supplement inadequate regulations to be consistent with reality. In which, conditions for the transfer of contracts of purchase and sale, lease-purchase of houses and construction works are mentioned.

The demand for the transfer of purchase and sale contracts, lease-purchase of houses, real estate, construction works on the market is at a high level, although there are no regulations on the transfer of contracts for the sale of non-residential real estate not to be formed in the future. Therefore, there is no legal basis to carry out these transactions in reality. Therefore, Decree 02/2022/ND-CP has had a number of amendments and supplements and has overcome some limitations compared to the past, which is expected to solve problems and inadequacies.

Accordingly, Decree 02/2022/ND-CP has combined conditions for transfer of contracts for purchase and sale of future houses and conditions for transfer of lease-purchase contracts for existing houses and construction works with specific regulations.

Firstly, the transfer of the contract requires a purchase and sale contract or a lease purchase contract made in accordance with regulations. Accordingly, these contracts must ensure compliance with the provisions of the transfer agreement form for each transferred real estate object, whether it is a Contract for Sale, Purchase, Lease and Purchase of an apartment, or tourist apartments (Condotel), office apartments combined with accommodation (Officetel)… are valid and allowed to be used for transfer. In addition, for cases where the parties have signed a contract before the effective date of Decree 02/2022/ND-CP, the signed contract must be present. Therefore, when transferring these types of contracts, the parties should pay attention to ensure the legality of the respective contract in terms of form and time of establishment.

Secondly, the transfer contract must be in the category that has not yet submitted a dossier to request a competent state agency to issue a certificate of land use rights, ownership of houses and other land-attached assets. This provision has been mentioned in the previous regulations for the transfer of real estate contracts formed in the future. Up to now, this is still a necessary regulation to ensure that the handling of licensing procedures does not overlap, eliminating the risk that a real estate bears two or more certificates for the same object.

Thirdly, the contract of sale, purchase, lease-purchase of houses and construction works must be free of disputes and lawsuits. Accordingly, the disputed contract will not be used to transfer to a third party. This provision is consistent with the provisions on prohibition of transferring property rights to the disputed property. Therefore, in order to transfer the contract, the parties need to settle the dispute in advance to have a basis for the transfer of the contract. In many complicated cases, the real estate dispute lawyers need to be consulted for proper dispute solutions.

Fourthly, houses and construction works that are the subject of purchase and sale or lease-purchase contracts must not be subject to distraint or mortgage to secure the performance of obligations as prescribed by law. Recently, the phenomenon of transferring these contracts has increased with seriously violated the provisions of the law, making it difficult for relevant competent authority to handle, otherwise causing damages to the transferee without understanding the legal issues for the transferor in the contract. However, with the principle of respecting the agreement of the parties, the law still allows the assignment of the contract in this case if the mortgagee agrees and this consent must be recorded specifically to avoid disputes later.

It can be seen that the highlight of Decree 02/2022/ND-CP has initially solved the inadequacies in the transfer contract for tourist apartments (Condotel), office apartments (Officetel) that help relevant competent authority have a legal basis to handle the requirements.  Further, Decree 02/2022/ND-CP has contributed to building a clearer mechanism so that the participants can actively comply with regulations on effective real estate business contracts, minimizing the contract disputes in Vietnam, creating a safer and more sustainable real estate market in Vietnam.

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