Foreigner Can Buy House in Vietnam | ANT Lawyers

 As investment in properties oversea is a big decision, it is suggested the investor consult with real estate lawyer in Vietnam to help checking the eligibility of the developer, the construction permits and other legal documents granted for the project. It is important to review the transaction documents in regard to deposit agreement, sales agreements and other agreements the developer might propose to ensure the protection of rights, to minimize risks and ensure compliance.

On November 25th, 2014, the National Assembly of the Socialist Republic of Vietnam has approved the Housing Act 2014. One of the most prominent new changes is that a foreigner is entitled to purchase a house in Vietnam.

Foreign objects (organization and foreign individual) can own houses in Vietnam are:

Overseas organizations and individuals investing in housing construction under projects in Vietnam according to the provisions of the Housing Law and related legal documents;

Enterprises with foreign investment capital, branch or representative offices of foreign enterprises, foreign investment funds and foreign bank branches are operating in Vietnam (hereinafter referred to as foreign organizations);

Foreign citizens are allowed to enter Vietnam.

Form of ownership housing foreigner in Vietnam:

Investment in housing construction under the project in Vietnam according to the provisions of the Housing Law and related legislation;

Purchasing, leasing, donation or inheritance of commercial housing includes apartments and individual houses in the investment projects of housing construction (Except for housing projects in the area of ensuring national defense and security as stipulated by the Government of Vietnam).

Condition, right and obligation of foreigner when buy house in Vietnam:

For individuals or organizations investing in housing construction under a project in Vietnam when seeking to own houses in Vietnam they must satisfy the following conditions:

Have an investment certificate

Have housing projects that are built in the project in accordance with the law on housing

For foreign organizations or enterprises with foreign investment capital, branch or representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam, when seeking to buy a house in Vietnam they must satisfy the following conditions:

Have investment certificates or documents relating to the permit to operate in Vietnam (hereinafter referred to as investment certificate) issued by the competent State agencies of Vietnam.

For foreign individuals buying a house in Vietnam:

Allowed to enter Vietnam and are not entitled to the privileges and immunities of diplomatic and consular as stipulated by law.

For foreign organizations or enterprises with foreign investment capital, branch or representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam and individual foreigners seeking to buy a house in Vietnam, they can own a house in Vietnam when:

Buy, lease, donate, inherit and own, to not exceed 30% of the apartments in an apartment building; if the houses are individual houses including villas, semi-detached houses and located in an area with a population equivalent to ward-level administrative, the allowed units that foreigners are permitted to buy, lease, donate, inherit and own must not exceed two hundred and fifty houses;

For foreign individuals, they shall be entitled to own a house as agreed in the contract of sale, lease, donate or inherit housing but not exceeding a term of 50 years from the date of issuance of the certificate of ownership and it can be extended according to the provisions of the Government if required; the housing ownership period must also be specified in the certificate;

In the case of foreign individuals married to a citizen of Vietnam or married to a Vietnam citizen settled in a foreign country, they can own the houses for a long and stable term. They also have owner’s rights like a Vietnam citizen;

For foreign organizations, they shall be entitled to own a house as agreed in the contract of sale, lease, donate or inherit the house but not exceed the term specified in the certificate of ownership, including the extended time. The housing ownership period is calculated from the date of receipt of the certificate of ownership and specified in the certificate.

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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Adding Foreign Subjects to Own Resident Houses in Vietnam | ANT Lawyers

 The Draft Law on House (amended) has currently taken lots of attentions of not only investors but residents. One of the significant amendments is provision on house ownership of foreign organizations, individuals.

According to Articles 161, 162, 163 of Draft Law, there are 3 cases that the foreigners may own resident houses in Vietnam as following:

- Foreign organizations, individuals invest the construct resident houses according to projects for sale, lease, hire-purchase sale.

- Foreign owned enterprises, branches, representative offices of the enterprises without business in real estate, foreign investment funds and branches of foreign banks permitted to operate in Vietnam are entitled to buy, donate, inherit the commercial houses in projects of resident houses development, new urban areas, tourism real estate.

- Foreign individuals who are allowed to enter Vietnam, not belong to incentive rights, diplomatic or consular immunity.

However, subjects at section 2 and 3 are eligible to own houses in maximum term of 70 years, from the issuance date and can extend according to laws at that moment. They are not allowed to buy and own social houses, just buy and own commercial houses. They are also eligible to own unlimited number of commercial houses in commercial resident house development projects, new urban area or tourism real estate. These new provisions will become important points for real estate market in Vietnam. Especially, the foreign individuals are allowed to enter Vietnam, entitled to buy and own resident houses in Vietnam. It’s expected to make a big change in real estate in Vietnam when the new Law on House (amended) is adopted. ANT Lawyers, your lawyers in Vietnam.

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Does Tenancy Agreement Need to Be Notarized? | ANT Lawyers

 Housing rental contracts are made and implemented by the lessee and the lessor, including the conditions and responsibilities of the two parties to the rental housing, the terms stated in the contract is right with the prior agreement of the two sides.

Article 492 the Civil Code 2005 provides for the form of lease agreement as follows: “Housing rental contract must be made in writing, if the lease term is six months or above, it must be notarized or certified and must register, unless other cases provided by law.”

Paragraph 2 of Article 122 – Housing Act 2014 provides that, in case the organization donated the house for charity purpose; purchase and lease purchase of houses under state ownership; purchase or lease purchase of social housing, housing for resettlement; housing capital contribution in which one party is organization; case of leasing, lending, allowing for temporary and authorized to manage the house are not required for notarization and authentication of contracts, unless the parties have needs.

In part a, point 28, section III of Resolution No. 52/NQ-CP on the administrative procedures in the field of judicial support, the attached Appendix have clearly stated that the regulation about mandatory notarization of some contracts, including housing lease contracts will be eliminated.

Thus, from the above regulations, we can see that currently, Vietnam law is not compulsory that tenancy agreement have to be notarized. The notarized or not is up to the parties involving in the contract. However, in order to ensure the interests of the parties in the contract, the parties could consider notarized housing lease contracts.

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, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Conditions for Foreigners When Buying Houses in Vietnam | ANT Lawyers

 With open-door policies and a stable socio-economic situation, Vietnam is one of the countries with great attraction to foreign investors. There are many foreign individuals and organizations come to Vietnam to live and work and a number of foreigners or foreign organizations wish to buy houses or apartments. Many real estate developers also wish to expand the customers base through selling houses and apartments to foreigners in Vietnam.

However, according to current law, foreigners or foreign organizations can buy houses and apartment in Vietnam; and real estate developers could sell houses and apartments in Vietnam but must meet some conditions.

First of all, to be able to buy a house in Vietnam, foreign individuals and organizations must be one of the subjects that can own houses in Vietnam. Specifically, foreign organizations and individuals that are allowed to own houses in Vietnam include: (i) foreign organizations and individuals investing in housing construction under projects in Vietnam; (ii) foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam; (iii) foreigners whom are allowed to enter Vietnam. Accordingly, to be able to buy a house in Vietnam, these subjects must prove that they fully meet the conditions prescribed by law.

Specifically, foreign organizations and individuals investing in housing construction under projects in Vietnam must have an Investment Certificate and have houses built in the project according to regulations. For foreign organizations, they must set up company in Vietnam, have an investment certificate or a document related to being allowed to operate in Vietnam, issued by a competent Vietnamese state agency. Foreign individuals must be subject to permission to enter Vietnam and not be entitled to diplomatic and consular privileges and immunities.

Besides, depending on each different object, the documents proving the object and conditions for owning a house in Vietnam vary. For a foreign individual, s/he must have a valid passport with an entry verification stamp of the exit and entry management agency of Vietnam and not be eligible for special privileges and immunities. On the other hand, for foreign organizations, they must be eligible to own houses and have an Investment Registration Certificate or a document authorized by a competent Vietnamese agency to operate in Vietnam. In addition, these individuals and organizations should note that these documents must be valid at the time of signing the housing transactions.

Therefore, if organizations and individuals meet the above conditions, foreign individuals and organizations can purchase houses in Vietnam. However, it should be noted that foreign individuals can only own houses in Vietnam in the form of apartments or separate houses in an investment project to build commercial housing.

In addition, foreigners are also not allowed to purchase houses in areas that are subject of national defense and security under Vietnamese law. Further, foreign organizations and individuals are also limited in the number of ownership. Accordingly, foreign organizations and individuals are only allowed to own no more than 30% of the total number of apartments in an apartment building, and no more than 10% for an individual housing project of less than 2,500 units.

In general, purchasing houses for foreign individuals and organizations are subject to complicated legal conditions. Therefore, in order to ensure that the purchase of housing in Vietnam is in accordance with the regulations and to limit the risks arising, relevant individuals and organizations need to learn and seek legal advice and support from real estate lawyers in Vietnam.

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How Foreigners Could Buy Real Estate in Vietnam? | ANT Lawyers

Regulations on foreigners owning real estate in Vietnam are regulated in Civil Code 2015, Law on Land 2013, Law on Housing 2014, Decree no. 99/2015/ND- CP on guidelines the Law on Housing and related documents.

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.

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.

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 property lawyers for eligibility, conditions and other relevant matters.

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Conditions for Foreigners When Buying Houses in Vietnam | ANT Lawyers

With open-door policies and a stable socio-economic situation, Vietnam is one of the countries with great attraction to foreign investors. There are many foreign individuals and organizations come to Vietnam to live and work and a number of foreigners or foreign organizations wish to buy houses or apartments. Many real estate developers also wish to expand the customers base through selling houses and apartments to foreigners in Vietnam.

However, according to current law, foreigners or foreign organizations can buy houses and apartment in Vietnam; and real estate developers could sell houses and apartments in Vietnam but must meet some conditions.

First of all, to be able to buy a house in Vietnam, foreign individuals and organizations must be one of the subjects that can own houses in Vietnam. Specifically, foreign organizations and individuals that are allowed to own houses in Vietnam include: (i) foreign organizations and individuals investing in housing construction under projects in Vietnam; (ii) foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam; (iii) foreigners whom are allowed to enter Vietnam. Accordingly, to be able to buy a house in Vietnam, these subjects must prove that they fully meet the conditions prescribed by law.

Specifically, foreign organizations and individuals investing in housing construction under projects in Vietnam must have an Investment Certificate and have houses built in the project according to regulations. For foreign organizations, they must set up company in Vietnam, have an investment certificate or a document related to being allowed to operate in Vietnam, issued by a competent Vietnamese state agency. Foreign individuals must be subject to permission to enter Vietnam and not be entitled to diplomatic and consular privileges and immunities.

Besides, depending on each different object, the documents proving the object and conditions for owning a house in Vietnam vary. For a foreign individual, s/he must have a valid passport with an entry verification stamp of the exit and entry management agency of Vietnam and not be eligible for special privileges and immunities. On the other hand, for foreign organizations, they must be eligible to own houses and have an Investment Registration Certificate or a document authorized by a competent Vietnamese agency to operate in Vietnam. In addition, these individuals and organizations should note that these documents must be valid at the time of signing the housing transactions.

Therefore, if organizations and individuals meet the above conditions, foreign individuals and organizations can purchase houses in Vietnam. However, it should be noted that foreign individuals can only own houses in Vietnam in the form of apartments or separate houses in an investment project to build commercial housing.

In addition, foreigners are also not allowed to purchase houses in areas that are subject of national defense and security under Vietnamese law. Further, foreign organizations and individuals are also limited in the number of ownership. Accordingly, foreign organizations and individuals are only allowed to own no more than 30% of the total number of apartments in an apartment building, and no more than 10% for an individual housing project of less than 2,500 units.

In general, purchasing houses for foreign individuals and organizations are subject to complicated legal conditions. Therefore, in order to ensure that the purchase of housing in Vietnam is in accordance with the regulations and to limit the risks arising, relevant individuals and organizations need to learn and seek legal advice and support from real estate lawyers in Vietnam.

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Can Foreigner Authorize Other Person to Perform Transfer of Properties in Vietnam?

In the complicated situation of the Covid-19 epidemic, the Government continued to implement policies to restrict entry to Vietnam, thus many transactions were canceled or delayed. That has caused many obstacles for foreign individuals and organizations wishing to perform transactions in Vietnam. We refer to the transfer of home ownership for foreign individuals who cannot enter Vietnam to participate in signing transfer contracts and other related transactions i.e. sell or buy an apartment or a house located in Vietnam.

Pursuant to the law on housing, foreign organizations and individuals have the right to own house in Vietnam, before the time limit of the homeownership, the homeowner is entitled to gift or sell their house(s) to entities eligible for the homeownership in Vietnam; if not, their house(s) shall be under ownership of the State. Regarding the house ownership term, if a foreign organization or individual sells or gifted to a domestic organization, household, individual, or a Vietnamese citizen residing overseas, the buyer or recipient will acquire a long-term ownership of the house. If the house is sold to a foreign organization or individual eligible to own housing in Vietnam, the buyer or recipient may own the house for the remaining period. When this period expires, if the owner wishes to have this period extended, the State shall consider granting an extension. The seller or giver must pay tax and other amounts to state budget as prescribed by Vietnam’s law.

In accordance with the law on housing transactions, the seller or transferor of the commercial house sale and purchase contract must meet the following conditions:

He/she is the homeowner, or the person permitted and authorized by the homeowner to enter into housing as prescribed in this Law and law on civil; if the agreement of commercial housing is transferred, he must be the buyer for housing of the investor or the transferee of the agreement on housing sale;

If the entity is a person, he must have full civil capacity to enter into transactions in housing as prescribed in law on civil; if the entity is an organization, it must have legal personality.

Article 195 of the 2015 Civil Code stipulates: “A person who is not an owner of property has the right to dispose of property only under the authorization of the owner or according to the provisions of law.”

Clause 2 Article 55 of the Law on Notarization 2014 stipulates: “In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.”

In order to perform the house purchase and sale transaction or in other words to buy a apartment or sell a house in Vietnam, the parties to the house transaction need to agree to make a sale contract or a document on the transfer of a commercial house sale and purchase contract. In case a foreign house owner cannot enter directly to sign a contract, he/she may authorize another individual or organization in Vietnam to perform instead. However, the authorization document needs to be notarized at the competent authority. In case a power of attorney is notarized at a competent agency in a foreign country, it is required to be notarized, legalized, and authenticated in accordance with regulations of the foreigner country (apostille) before that document can be used in Vietnam.

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Draft Decree on E-transactions in the Government Management of Land | ANT Lawyers

In the era of technology 4.0, the application of science and technology in all activities of social life in general is increasingly focused. Vietnam government has introduced a number of policies on the application of electronic technology in administrative procedures, particularly the Draft Decree on Electronic Transactions in the management of land.

Electronic transactions in the government management of land are the implementation of administrative procedures in the field of land; share and provide land information and data; share and provide documents among state agencies.

On the implementation of administrative procedures on land, according to the Draft, the Government stipulates 17 administrative procedures on land to be carried out by electronic methods, such as: land acquisition; land allocation, land lease, change of land use purpose; first registration of land and properties attached to land, first-time certificate of land use rights, ownership of houses and other land-attached assets and additional registration of assets attached to land;… However, in order to carry out electronic procedures, agencies and organizations providing/using electronic transaction services in the field of land must meet certain conditions in accordance with the provisions of this draft.

Regarding sharing and providing information and land data, in the draft, the Government clarified the cases; responsibilities of agencies that share and provide land information and data and responsibilities of land users and users of electronic data. However, the draft did not specify what information allowed to be shared.

The draft also specifies the assurance of security and safety in e-transactions on land and the settlement of arising problems. Accordingly, disputes related to e-transactions in Land areas are settled based on the provisions of the Law on Electronic Transactions, this Decree and other relevant laws. In addition, the draft also provides regulations on the right to appeal, denunciations and regulations on sanctions.

Electronic signatures in the field of land include digital signatures and other types of electronic signatures as prescribed by law. Agencies, organizations and individuals have the right to discuss and select the type of appropriate electronic signature.

The implementation of electronic transaction in the land management will improve the efficiency of land, and real estate transaction from management, development, sales and purchase, and could help reduce the inaccuracy and avoid potential disputes.

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What Are Real Estate Transaction Conditions for Buyer and Seller in Vietnam? | ANT Lawyers

The real estate market is always an attractive market with a large source of potential speculative profits for investors. Because real estate transaction is always high in value, and buying a property for most people is always a life time important decision, and many times with the financial support from the bank, therefore in developed country, real estate lawyers are always involved in all steps of the transaction to ensure the legitimate transfer of the property. In Vietnam, in reality, many real estate transitions are conducted by the buyer and sellers themselves without real estate lawyers and there are many disputes arisen from the transactions in regard to property deposit agreement, property sales and purchase agreement between real estate developer and buyer for a new property, or between buyer and the previous property owner for resale property.

Residential property is one of the common types of real estate traded, so when joining in transactions related to property, it is necessary to ensure the conditions for property transfer. The related parties need to comply and meet the requirements of the above conditions for a successful transfer transaction.

Conditions for property transfer transaction include the following basic points: the transferred property is not in a dispute, complaint, or claim about ownership; the transferred property shall be within the property ownership period, in the case of property owners with a definite term; the transferred property is not distrained for judgment enforcement or distrained to comply legally effective administrative decisions of competent state agencies; the transferred property is not subject to a decision on land recovery or a notice of house clearance or demolition issued by a competent agency.

For the conditions on the parties to the property transaction, the property transferor needs to meet the following conditions:

The transferor is the owner of the property or the person permitted or authorized by the owner to carry out the transaction on property according to the provisions of law;

In case of transfer of a commercial house purchase and sale contract, the transferor shall be the person who bought the house from the investor or the person who has received the transfer of the house purchase and sale contract;

If the transferor is an individual, this person shall have full civil act capacity to carry out transactions on housing under the provisions of civil law;

If the transferor is an organization, it shall have legal status, unless the organization donates a house of gratitude or charity.

At the same time, the transferee shall also meet the conditions, specifically including the following conditions:

If the transferee is a domestic individual, this person shall have full civil act capacity to conduct property transactions under civil law and it is not required to them to have permanent residence registration in the place where the housing transferred is located;

If the transferee is a foreign individual or overseas Vietnamese, this person shall have full civil act capacity to carry out transactions on housing under Vietnamese law. In addition, this person must be eligible to own houses in Vietnam according to the provisions of law and it is not required to them to have temporary residence registration or permanent residence registration at the place where the housing transferred is located;

If the transferee is an organization, it shall have legal status and not depend on the place of business registration and establishment; if it is a foreign organization, it must be eligible to own a house in Vietnam according to the provisions of law; if the organization is authorized to manage to house, it must have the function of providing real estate services and be operating in Vietnam under the law on real estate business.

Having said that, it would be more efficient for buyer and seller to engage real estate law firm specializing in real estate transaction for buying and selling property in Vietnam to avoid potential disputes and protect their best interest for seller and safeguard investment for buyer.

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

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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Draft Decree on E-transactions in the Government Management of Land | ANT Lawyers

In the era of technology 4.0, the application of science and technology in all activities of social life in general is increasingly focused. Vietnam government has introduced a number of policies on the application of electronic technology in administrative procedures, particularly the Draft Decree on Electronic Transactions in the management of land.

Electronic transactions in the government management of land are the implementation of administrative procedures in the field of land; share and provide land information and data; share and provide documents among state agencies.

On the implementation of administrative procedures on land, according to the Draft, the Government stipulates 17 administrative procedures on land to be carried out by electronic methods, such as: land acquisition; land allocation, land lease, change of land use purpose; first registration of land and properties attached to land, first-time certificate of land use rights, ownership of houses and other land-attached assets and additional registration of assets attached to land;… However, in order to carry out electronic procedures, agencies and organizations providing/using electronic transaction services in the field of land must meet certain conditions in accordance with the provisions of this draft.

Regarding sharing and providing information and land data, in the draft, the Government clarified the cases; responsibilities of agencies that share and provide land information and data and responsibilities of land users and users of electronic data. However, the draft did not specify what information allowed to be shared.

The draft also specifies the assurance of security and safety in e-transactions on land and the settlement of arising problems. Accordingly, disputes related to e-transactions in Land areas are settled based on the provisions of the Law on Electronic Transactions, this Decree and other relevant laws. In addition, the draft also provides regulations on the right to appeal, denunciations and regulations on sanctions.

Electronic signatures in the field of land include digital signatures and other types of electronic signatures as prescribed by law. Agencies, organizations and individuals have the right to discuss and select the type of appropriate electronic signature.

The implementation of electronic transaction in the land management will improve the efficiency of land, and real estate transaction from management, development, sales and purchase, and could help reduce the inaccuracy and avoid potential disputes.

Read More

Can Foreigner Authorize Other Person to Perform Transfer of Properties in Vietnam? | ANT Lawyers

In the complicated situation of the Covid-19 epidemic, the Government continued to implement policies to restrict entry to Vietnam, thus many transactions were canceled or delayed. That has caused many obstacles for foreign individuals and organizations wishing to perform transactions in Vietnam. We refer to the transfer of home ownership for foreign individuals who cannot enter Vietnam to participate in signing transfer contracts and other related transactions i.e. sell or buy an apartment or a house located in Vietnam.

Pursuant to the law on housing, foreign organizations and individuals have the right to own house in Vietnam, before the time limit of the homeownership, the homeowner is entitled to gift or sell their house(s) to entities eligible for the homeownership in Vietnam; if not, their house(s) shall be under ownership of the State. Regarding the house ownership term, if a foreign organization or individual sells or gifted to a domestic organization, household, individual, or a Vietnamese citizen residing overseas, the buyer or recipient will acquire a long-term ownership of the house. If the house is sold to a foreign organization or individual eligible to own housing in Vietnam, the buyer or recipient may own the house for the remaining period. When this period expires, if the owner wishes to have this period extended, the State shall consider granting an extension. The seller or giver must pay tax and other amounts to state budget as prescribed by Vietnam’s law.

In accordance with the law on housing transactions, the seller or transferor of the commercial house sale and purchase contract must meet the following conditions:

He/she is the homeowner, or the person permitted and authorized by the homeowner to enter into housing as prescribed in this Law and law on civil; if the agreement of commercial housing is transferred, he must be the buyer for housing of the investor or the transferee of the agreement on housing sale;

If the entity is a person, he must have full civil capacity to enter into transactions in housing as prescribed in law on civil; if the entity is an organization, it must have legal personality.

Article 195 of the 2015 Civil Code stipulates: “A person who is not an owner of property has the right to dispose of property only under the authorization of the owner or according to the provisions of law.”

Clause 2 Article 55 of the Law on Notarization 2014 stipulates: “In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.”

In order to perform the house purchase and sale transaction or in other words to buy a apartment or sell a house in Vietnam, the parties to the house transaction need to agree to make a sale contract or a document on the transfer of a commercial house sale and purchase contract. In case a foreign house owner cannot enter directly to sign a contract, he/she may authorize another individual or organization in Vietnam to perform instead. However, the authorization document needs to be notarized at the competent authority. In case a power of attorney is notarized at a competent agency in a foreign country, it is required to be notarized, legalized, and authenticated in accordance with regulations of the foreigner country (apostille) before that document can be used in Vietnam.

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Buy Apartment in Vietnam

In the complicated situation of the Covid-19 epidemic, the Government continued to implement policies to restrict entry to Vietnam, thus many transactions were canceled or delayed. That has caused many obstacles for foreign individuals and organizations wishing to perform transactions in Vietnam. We refer to the transfer of home ownership for foreign individuals who cannot enter Vietnam to participate in signing transfer contracts and other related transactions i.e. sell or buy an apartment or a house located in Vietnam.

Pursuant to the law on housing, foreign organizations and individuals have the right to own house in Vietnam, before the time limit of the homeownership, the homeowner is entitled to gift or sell their house(s) to entities eligible for the homeownership in Vietnam; if not, their house(s) shall be under ownership of the State. Regarding the house ownership term, if a foreign organization or individual sells or gifted to a domestic organization, household, individual, or a Vietnamese citizen residing overseas, the buyer or recipient will acquire a long-term ownership of the house. If the house is sold to a foreign organization or individual eligible to own housing in Vietnam, the buyer or recipient may own the house for the remaining period. When this period expires, if the owner wishes to have this period extended, the State shall consider granting an extension. The seller or giver must pay tax and other amounts to state budget as prescribed by Vietnam’s law.

In accordance with the law on housing transactions, the seller or transferor of the commercial house sale and purchase contract must meet the following conditions:

-He/she is the homeowner, or the person permitted and authorized by the homeowner to enter into housing as prescribed in this Law and law on civil; if the agreement of commercial housing is transferred, he must be the buyer for housing of the investor or the transferee of the agreement on housing sale;

-If the entity is a person, he must have full civil capacity to enter into transactions in housing as prescribed in law on civil; if the entity is an organization, it must have legal personality.

Article 195 of the 2015 Civil Code stipulates: “A person who is not an owner of property has the right to dispose of property only under the authorization of the owner or according to the provisions of law.”

Clause 2 Article 55 of the Law on Notarization 2014 stipulates: “In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.”

In order to perform the house purchase and sale transaction or in other words to buy a apartment or sell a house in Vietnam, the parties to the house transaction need to agree to make a sale contract or a document on the transfer of a commercial house sale and purchase contract. In case a foreign house owner cannot enter directly to sign a contract, he/she may authorize another individual or organization in Vietnam to perform instead. However, the authorization document needs to be notarized at the competent authority. In case a power of attorney is notarized at a competent agency in a foreign country, it is required to be notarized, legalized, and authenticated in accordance with regulations of the foreigner country (apostille) before that document can be used in Vietnam.

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