Real Estate Legal Matters in Vietnam | ANT Lawyers

 In general, it is not permitted to own land in Vietnam as a private entity because the land belongs to the people and the State of Vietnam thereby operates as the administrator.

However an ownership of a right to use land is permitted according to Vietnamese Law. This so-called Land Use Right (“LUR”) Certificate provides the means to lease land from the State for Vietnamese and foreign people. This LUR Certificate entitles the land users to protect their legitimate rights and interests. The sale of a house or real estate is in fact the transfer of the rights for house ownership combined with the transfer of the land from the seller. The right to use land can be directly acquired by different ways that are: lease from the state; sub-lease from a developer of a zone; transfer from another land user; allocation from the state. The legal grounds for Land and House Law of Vietnam are stipulated in the Law on Housing 2005 of Vietnam as well as in the Law on Land 2003. The rights and entitlements of holders of house ownership and the holders of the LUR Certificate are settled in this law.

According to Article 12 of the Law on Housing 2005, the name of the individual who holds the house ownership shall be written in the house ownership right certificate and his/her rights are stipulated in Article 21 that include for example the rights to posses; use; sell; lease; donate; exchange; lend or to let other people stay temporarily in the house. As stipulated in Article 106 of the Law on Land 2003, the one who holds the LUR and house ownership certificate is entitled to exercise the full range of rights over the land/house. As such, land use rights and ownership of assets on the land are combined in the Certificate of Land Use Right and House Ownership Right (LURC).

But the possibilities to acquire land or houses depend on the individual/organization that wishes to do so, because Vietnamese, overseas Vietnamese and Foreigners do not have the same rights. Especially for foreigners, it was often quite challenging to acquire land or houses in Vietnam. Before the year of 2009, foreigners could not legally acquire property but only could make a joint venture with a Vietnamese company. But the Resolution No. 19/2008(ND-QH12, effective January 2009, started to entitle foreigners to own houses in Vietnam under the conditions that the foreigner 1) is hired by an enterprise that currently operates in Vietnam and 2) must have at least a temporary residence card to purchase and own an apartment unit in Vietnam. This five-year piloting program that would end in 2014 is now discussed by the Vietnamese Prime Minister to continue this program after the first five years to support the real estate market and to make it more attractive for foreigners.

Even though about 80,000 expats live and work in Vietnam, only more than 400 cases of foreigners buying houses in Vietnam could be registered. Of course, this might be due to the difficulties for foreigners to buy houses before this pilot program . But this Resolution No. 19, which was guided by Decree No. 51/2009/ND-CP, still does not make it easy to operate in the real estate market in Vietnam for foreigners because of the complicated procedures to register ownership. After the first 5 years, the government stated to have the plan to review the pilot policy and the Ministry of Construction also opened up for the idea to allow foreigners to buy houses no matter if they work and do business here or if they want to buy real estates in Vietnam.

As the Vietnam’s real estate situation seems to stand before a turning point, it is necessary to keep up to date with all legal changes and developments. Due to the fact that Vietnamese law has special provisions for every organization or individual who wishes to operate with land and real estates related to House Law, it is inevitable to know about this legal circumstances in Vietnam.

ANT Lawyers could assist in different land and house related projects and matters such as land ownership, house purchase or sale and is aware of the differences between provisions on house law for foreigners and Vietnamese. Our professionals could advise clients about possibilities and potential risks concerning real estate laws, housing laws in Vietnam and furthermore could support clients with required procedures with the Vietnamese authorities.

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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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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Five types of real estate contracts abolished mandatory notarization procedure | ANT Lawyers

  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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New Vietnam Real Estate draft law giving more rights to foreigners in Vietnam | ANT Lawyers

 ANT Lawyers’ real estate legal practice gives client legal advice on real estate legal matters in Vietnam. We are keeping track with changes in the Vietnam legal environment to ensure giving our client the best advice.

Real estate market in Vietnam is experiencing a difficult time. The government has realized that there is a huge demand from the foreigners and oversea Vietnamese investing in Vietnam in owning real estate in Vietnam however the legal regulations on such matter have not yet encouraged them to make the investment.

The Vietnam Ministry of Construction has enacted the fifth Draft of Law on Real Estate Business (amending), which regulates two new noteworthy provisions relating to the scope of real estate business of foreigners and Vietnamese overseas.

While the current regulations in Law on Real Estate 2006 only allow the foreign and oversea Vietnamese organizations, individuals to establish houses, construction works for sale, lease, lease-buy; to invest, reclaim land and set up facilities on the leased land for leasing. The new Draft of Law on Real Estate expands the scope to i) rent houses, construction works in order to sub-lease; ii) foreign and oversea Vietnamese organizations or individuals operating in real estate area, foreign invested capital enterprises, branches, representatives of foreign enterprises, investment funds, branches of foreign banks currently operating in Vietnam are also permitted to rent, buy and own the office areas for their own work or for lease; to buy, rent, lease-buy houses according to Vietnam law on houses.

Our real estate lawyers in Vietnam have experience in the field of real estate and we have solutions for our client based on client’s unique situation.

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What Are Rights and Obligations of Foreigners Owning Properties in Vietnam? | ANT Lawyers

According to the current Vietnamese law, the ownership of houses in Vietnam by foreigners has changed significantly towards more openness. However, home ownership of foreigners and Vietnamese citizens are still different.

Foreign house ownership is allowed in commercial housing construction projects only (i.e., only in newly formed residential areas), not an area of national defense and security purpose. In case of house donation or inheritance of house not subject to this regulation, the foreigner only receives the value of that house.

The foreigners combined may not buy, rent and purchase, receive, inherit and own more than 30% of apartments in an apartment building; or not more than 250 houses of separate houses including villas, row houses in an area whose population is equivalent to a ward-administrative division

In an area whose population is equivalent to that of a ward, if there is a commercial housing construction project for sale or lease-purchase, the quantity of detached houses that may be owned by foreigner is specified below: where the quantity of detached houses of an project is fewer than 2,500, foreigner may own up to 10% of the houses of such project; where there is only one project whose quantity of detached houses is equivalent to 2,500 houses, foreigners may own up to 250 houses of them; where there are two or more projects where the total quantity of detached houses does not exceed 2,500 houses, foreigners may own up to 10% of the houses of each project. In case a house is donated or inherited in excess of the number of houses under this regulation, only the value of that house is entitled.

The foreigners are eligible for the homeownership as agreed in agreements on housing sale, lease purchase, gifting, or inheritance for not more than 50 years from the date of issuance of the Certificate and have can be extended further according to the Government’s regulations if the need arises; house ownership period must be specified in the Certificate.

In case a foreign individual marries a Vietnamese citizen or an overseas Vietnamese, he/she can own a stable, long-term house and has the same rights as a Vietnamese citizen.

The foreign organization are eligible for the homeownership as agreed in agreements on housing sale, lease purchase, gifting, or inheritance for not longer than duration stated in their Certificate of investment, including extension duration, the duration of the homeownership shall be determined from the day on which the organization is granted the Certificate and stated in such Certificate.

In addition, foreign organizations and foreign individuals permitted to enter Vietnam have the same obligations as Vietnamese citizens but must comply with the following provisions:

If the homeowner is a foreign individual, he/she is entitled to lease house for lawful purposes provided that he/she notifies the agency of district in charge of housing where the house is located of housing lease as prescribed in regulations of the Minister of Construction and pays taxes on housing lease as prescribed before leasing houses. If a foreign individual gets married to a Vietnamese citizen or an oversea Vietnamese, he/she qualifies for stable and long-term homeownership and has all rights of homeowner similarly to Vietnamese citizens.

If the homeowner is a foreign organization, its house is/are only provided for their employees but it is not allowed to use their house for lease, offices, or other purposes.

The above are provisions on rights and obligations of foreign organizations and individuals when owning properties in Vietnam. For specific matters, please consult with property, real estate lawyers for legal advice for the property transaction from deposit agreement, house sales and purchase agreement, and registration of ownership with authorities for certificate of land use right, or house owership certificate of to avoid property disputes in Vietnam, where the house ownership, land use rights are restricted for foreigners.

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, will help customers conveniently drafting contracts, Debt Recovery, Set up business, Foreign invest, Real estate ....

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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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What Are New in Real Estate Trading Business From 2021? | ANT Lawyers

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.

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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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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.

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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

Real Estate Legal Matters in Vietnam | ANT Lawyers

 In general, it is not permitted to own land in Vietnam as a private entity because the land belongs to the people and the State of Vietnam thereby operates as the administrator.

However an ownership of a right to use land is permitted according to Vietnamese Law.  This so-called Land Use Right (“LUR”) Certificate provides the means to lease land from the State for Vietnamese and foreign people.  This LUR Certificate entitles the land users to protect their legitimate rights and interests.  The sale of a house or real estate is in fact the transfer of the rights for house ownership combined with the transfer of the land from the seller.  The right to use land can be directly acquired by different ways that are: lease from the state; sub-lease from a developer of a zone; transfer from another land user; allocation from the state.  The legal grounds for Land and House Law of Vietnam are stipulated in the Law on Housing 2005 of Vietnam as well as in the Law on Land 2003.  The rights and entitlements of holders of house ownership and the holders of the LUR Certificate are settled in this law.

According to Article 12 of the Law on Housing 2005, the name of the individual who holds the house ownership shall be written in the house ownership right certificate and his/her rights are stipulated in Article 21 that include for example the rights to posses; use; sell; lease; donate; exchange; lend or to let other people stay temporarily in the house.  As stipulated in Article 106 of the Law on Land 2003, the one who holds the LUR and house ownership certificate is entitled to exercise the full range of rights over the land/house. As such, land use rights and ownership of assets on the land are combined in the Certificate of Land Use Right and House Ownership Right (LURC).

But the possibilities to acquire land or houses depend on the individual/organization that wishes to do so, because Vietnamese, overseas Vietnamese and Foreigners do not have the same rights.  Especially for foreigners, it was often quite challenging to acquire land or houses in Vietnam. Before the year of 2009, foreigners could not legally acquire property but only could make a joint venture with a Vietnamese company. But the Resolution No. 19/2008(ND-QH12, effective January 2009, started to entitle foreigners to own houses in Vietnam under the conditions that the foreigner 1) is hired by an enterprise that currently operates in Vietnam and 2) must have at least a temporary residence card to purchase and own an apartment unit in Vietnam. This five-year piloting program that would end in 2014 is now discussed by the Vietnamese Prime Minister to continue this program after the first five years to support the real estate market and to make it more attractive for foreigners.

Even though about 80,000 expats live and work in Vietnam, only more than 400 cases of foreigners buying houses in Vietnam could be registered. Of course, this might be due to the difficulties for foreigners to buy houses before this pilot program . But this Resolution No. 19, which was guided by Decree No. 51/2009/ND-CP, still does not make it easy to operate in the real estate market in Vietnam for foreigners because of the complicated procedures to register ownership. After the first 5 years, the government stated to have the plan to review the pilot policy and the Ministry of Construction also opened up for the idea to allow foreigners to buy houses no matter if they work and do business here or if they want to buy real estates in Vietnam.

As the Vietnam’s real estate situation seems to stand before a turning point, it is necessary to keep up to date with all legal changes and developments. Due to the fact that Vietnamese law has special provisions for every organization or individual who wishes to operate with land and real estates related to House Law, it is inevitable to know about this legal circumstances in Vietnam.

ANT Lawyers could assist in different land and house related projects and matters such as land ownership, house purchase or sale and is aware of the differences between provisions on house law for foreigners and Vietnamese. Our professionals could advise clients about possibilities and potential risks concerning real estate laws, housing laws in Vietnam and furthermore could support clients with required procedures with the Vietnamese authorities.

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Why Client Should Retain Real Estate Lawyers in Vietnam? | ANT Lawyers

 

Benefits of retaining a Real Estate Lawyer in Vietnam

Due to changes in law attracting foreigners to come to live, and invest in Vietnam, foreigners have growing interest in investment and acquiring real estate.  However, as real estate is valuable assets, the law on real estate ownership and real estate transactions are complicated, especially for foreigners.

Under the land ownership regime in Vietnam, land belongs to the entire people with the State acting as the owner’s representative and uniformly managing land.  Hence, in Vietnam, the land users will have the land use right without the private ownership of the land.  Land law 2013 does not allow foreigner to have land use rights in Vietnam. It only allows foreign invested enterprises to be permitted to use land through the form of land allocation or lease.

Although foreigner do not have land use rights in Vietnam, they are allowed to own houses in Vietnam under the Law on Housing. In addition, the Law on Real Estate Business has certain limitations for foreign investors to conduct real estate business in Vietnam and must meet the legal requirements.

Foreign investors investing in Vietnam wish to use the land to conduct business activities, or intend to conduct real estate business in Vietnam, or simply a foreigner wishing to purchase and own real estate in Vietnam should be aware of the legal provisions on conditions of implementation, orders and procedures to of the transactions to minimize risks.  The assistance of the lawyers on real estate in Vietnam shall be worthwhile.

Real estate lawyers in Vietnam would have in-depth knowledge of the Land Law, Law on Housing, Law on Real Estate Business and related regulations. In addition, they would have practical experience in implementing legal procedures, handling disputes, and supporting real estate transactions in Vietnam. The real estate lawyers could explain the restrictions on land use rights of foreign organizations and individuals in Vietnam and the conditions for conducting business in real estate in Vietnam.  The lawyers at request could assist the foreigners with the process and procedures to work with state agencies to obtain land use rights for enterprise and home ownership rights for individual more effectively.

When conducting transactions related to real estate such as buying, selling, transferring, renting, leasing, real estate lawyers could also provide assistance in in legal due diligence of the real estate to minimize legal risk to clients. It is important to evaluate the legal status of the property, the owner of property, whether property is in dispute, or subject to additional requirements of government before being sold by the developer and the people eligible for entering into the transaction. In addition, the lawyers in Vietnam can advise clients to draft or review the agreements, sales contract as well as the process to legalize the process to comply with the law in Vietnam.

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Legal Regulations in Purchasing Real Estate in for Foreigners in Vietnam | ANT Lawyers

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.

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