Condominiums have become a popular form of housing in cities, especially big cities. The image of high-rise apartment buildings has now become a symbol and a way of life for many people. But to build an apartment building takes a lot of time and cost. This leads to the situation that many apartment buildings, although nearly completed, were unable to be completed due to lack of capital. To solve this problem, many contractors have opened and sold apartments under construction, creating a trend of buying and selling houses in the future. So what is housing in the future? Regulations on future house purchase and sale contracts in Vietnam. Please read the article below to get more necessary information.
Legal grounds
Law on Real Estate Business 2014
Future house purchase and sale contracts in Vietnam
According to Clause 2, Article 1 of Decree No. 11/2012/ND-CP on amendments and supplements to a number of articles of Decree 163/2006/ND-CP, the following assets are formed in the future” including: from borrowed capital; The property is in the formative stage or is being legally created at the time of entering into the security transaction; Property has been formed and subject to registration of ownership, but only after the security transaction is concluded, such property can be registered in accordance with law. According to this regulation, future assets do not include land use rights.
A house sale and purchase contract formed in the future is an agreement between the parties on the purchase and sale of a house that was not available at the time the contract was entered into. The development of commercial housing has not been completed or due to the fact that individual houses of individuals and families have not been built or construction has not been completed.
Houses formed in the future, as well as other real estates that will be formed in the future, are a group of subjects governed by the civil laws of developed countries in the world with specific and strict regulations. The most important feature of a contract of sale is the delivery of an asset in exchange for an amount of money, because the delivery of an amount in exchange for the property, without that characteristic element, the contract would take on a name. other than a contract of sale. This important characteristic factor shows that although the property has not yet been formed, the contract for sale and purchase of a house formed in the future belongs to the category of purchase and sale contracts in Vietnam. The fundamental difference with other types of Sale and Purchase Contracts is that the object/property to be exchanged has not been formed at the time of entering into the contract. The second difference is that this unformed property is organically and intimately tied to a special property: housing. Specifically: the object of this contract is a house attached to land that will be formed in the future through the construction or creation before or after the future house purchase and sale contracts formed in the future is signed.
The object of a house purchase and sale contract to be formed in the future is a house that will be transferred as agreed by the parties in the contract. Transferable property is an important and key provision in the contract of sale and purchase of a house formed in the future. Therefore, this provision needs to be designed in detail and clearly agreed upon during the contract negotiation process, to avoid arising legal risks in the future. According to the provisions of Clause 1, Article 55 of the Law on Real Estate Business 2014, a house formed in the future can only become the subject of a house sale and purchase contract when the following conditions are satisfied:
Having documents on land use rights, project dossiers, construction drawing designs approved by competent authorities, construction permits in case a construction permit is required, papers on acceptance and acceptance. the completion of the corresponding technical infrastructure construction according to the project schedule; In the case of an apartment building or a mixed-use building that is intended to be formed in the future, there must be a record of acceptance and completion of the foundation of that building.”
The determination of the transferable property is not merely determined on paper, as mentioned above, the transferable property in particular as well as the contract in general, needs to be clarified by the parties through a general agreement. appointment, exchange, agreement and agreement between the two parties in the process from the proposal of the contract, negotiation and contract negotiation until the contract is signed and notarized by the two parties according to the law. These promises, proposals, approvals and agreements are usually expressed in minutes of agreement between the parties, internal documents submitted to competent authorities for approval of the purchase and sale. These documents are extremely important in determining the assets that will be formed in the future (what the Buyer buys and what the Seller sells) as well as important evidence in the event of a dispute between the parties.
Contents of future house purchase and sale contracts in Vietnam
For a future house purchase and sale contract, the construction work in general must ensure the basic contents specified in Article 18 of the Law on Real Estate Business 2014. These are mandatory terms in the contract such as: information of the seller and the buyer, information about the object of purchase and sale, purchase and sale price, payment and handover of the house, warranty, dispute settlement, etc. For the purchase and sale of houses to be formed in the future, the terms and conditions. There are also some basic requirements that must be met:
Firstly, the terms of housing information. Because the house to be formed in the future at the time of signing has not yet formed or is being formed, the parties only learn through legal documents or models, so the first requirement is information about the house that the owner wants. The supplier must be clear and detailed to avoid confusion and limit disputes. The specific regulation of the information of the buyer and seller also aims to comply with the principles of the Law on Real Estate Business 2014 which are:
“Real estate business activities must be open and transparent.”
In which information about the time to complete the house and information about the area of the apartment is quite important for buyers and often disputes in practice.
Secondly, the terms of the purchase price. Regarding regulations on purchase and sale prices, currently the law requires the parties to agree on the purchase and sale price at the time of signing the contract and the customer is entitled to the purchase price of the house at the time of signing the contract. the parties agree otherwise. Thus, the parties must agree on the terms of the purchase and sale price right at the time of signing the contract, the price calculated according to which time is agreed by the parties, however, if the customer chooses the price according to the time of signing the contract, contract, the seller must comply with the will of the buyer because this is the right that the law gives the buyer.
In a purchase and sale relationship, price is always a term of interest to all parties, stemming from the issue of interests, the seller always wants to sell at a high price and the buyer does not. In particular, when investing in high-risk conditions, investors’ expectations of return must also be very high. Real estate business is always risky, the market fluctuates constantly, so the price terms must be clear. In addition, in the purchase and sale of houses formed in the future, the object of purchase and sale has not yet been formed at the time of signing the contract, so the law prescribed above aims to give priority to protecting the interests of the homebuyer, avoiding the case of At the time of handing over the house in the future, the house price will increase, the seller will turn to apply the selling price at this time, causing damage to the buyer.
Rights and obligations of the parties in the future house purchase and sale contracts
A contract for the sale and purchase of a house formed in the future is a type of bilateral contract, where the rights of one party are the corresponding obligations of the other party and vice versa. Similar to a normal sale and purchase relationship, the seller has the main right and obligation to receive money and deliver the property, while the buyer has the obligation to pay and receive the property. In addition, the parties also have the basic rights and obligations specified in Articles 21 to 24 of the Law on Real Estate Business 2014 applicable to entities buying and selling houses and construction works in general. Stemming from the characteristics of the house purchase and sale relationship formed in the future, current law also stipulates a number of other rights and obligations of the parties in the contract such as the obligation to use the owner’s advance for the right purpose. Investment, the right to transfer the purchase and sale contract of the buyer… Some rights and obligations that play an important role for the parties in the future house purchase and sale contract are:
For the seller
Firstly, the obligation to provide information Article 442 of the 2015 Civil Code:
“The seller is obliged to provide the buyer with necessary information about the property for sale and instructions on how to use that property.”
This information is made public through the real estate trading floor and on the mass media to facilitate buyers to capture information about the object, ensuring publicity and transparency in activities. real estate business. The information provided by the seller must be complete, which means that the seller of the house to be formed in the future may provide different information, but must ensure the contents in Clause 2, Article 6 of the Law on Real Estate Business. 2014 as real estate category; real estate location ; information on planning related to real estate ; size, area, legal status of real estate, selling price of real estate…
Secondly, the obligation to use the advance for the right purpose. As analyzed above, the parties in the house purchase and sale relationship formed in the future can sign a purchase and sale contract as soon as the house is under construction according to regulations, the amount that the customer has to pay is called an advance. The nature and purpose of this money is the money that the customer pays in advance to the investor to own a house in the future and the investor uses this money to supplement capital for the implementation of the housing project itself. In this relationship, both sides benefit. If the investor uses the customer’s advance money for a purpose other than the above purpose, it has falsified the nature of this sale and purchase relationship, only the investor benefits and the homebuyer is unwittingly taken advantage of and The probability that the project is not implemented, the buyer does not receive the house according to the agreement is very high. As such, the investor must use the advance money of the homebuyer to invest in building a house without using this money for any other purpose.
Thirdly, the obligation to transfer property and transfer ownership. Clause 4, Article 22 of the Law on Real Estate Business 2014 stipulates that the seller is obliged to:
Deliver the house or construction work to the buyer on time, with the quality and other conditions agreed upon in the contract, hand over the certificate of land use right, ownership of the house and assets attached to the contract. land and related documents as agreed in the contract”.
Unlike other types of property, the time of performance of the obligation to hand over the property often coincides with or is close to the time of signing the contract, in the purchase and sale of houses to be formed in the future, the handover of houses is mostly at a certain time. The point is quite far from the time of signing and often does not specify the exact date, so the right to check the accuracy of the property is of course not guaranteed at the time of signing the contract. Customers have the right to request the investor to take timely remedial measures and compensate for damage according to regulations. If the investor does not perform, the customer has the right to unilaterally terminate or cancel the contract, the investor must return the entire amount advanced by the customer and an interest on the advance at the interest rate. commercial bank loans. Thus, in order to assess whether the seller has properly performed the obligation to deliver the property or not, the contract must clearly specify the duration, progress, quality, etc. of the housing.
For the buyer
Firstly, the right to transfer the sale and purchase contract. According to the provisions of Article 10, Section 4 of Decree No. 76/2015/ND-CP, this right is only available to buyers who are households, individuals and organizations that do not do real estate business and have not yet received the house handover. Regulations on the right to transfer contracts of purchase and sale of houses formed in the future is a difference compared to the rights of parties to contribute capital or cooperate in investment and division of housing products. Current law stipulates that the house distribution party may not transfer the right to distribute the house to another organization or individual while the house purchase and sale contract has not been signed with the investor. Regarding the rights and obligations of the parties in the contract, from the date the investor confirms in the contract transfer document, the investor terminates the transaction with the contract assignor and directly deals with the transferee. contract; the transferee of the contract becomes the buyer of the house formed in the future and continues to perform the rights and obligations of the transferor under the contract. If the transfer of a contract is performed many times, the last contract transferee shall be named on the land use right certificate and own the house and other land-attached assets.
Secondly, payment obligations. Clause 1, Article 453 of the 2015 Civil Code stipulates that the home buyer has the obligation to “pay the house purchase price in full on time according to the agreed method. paid at the time the seller hands over the house and at the place where the house is located. In addition, about the obligation to pay, Clause 1, Article 290 of the 2015 Civil Code stipulates:
“The payment obligation must be performed in full, on time, at the agreed time and method.”
Based on the above provisions of the Civil Code, Clause 1, Article 57 of the Law on Real Estate Business 2014 stipulates the payment in future house purchase and sale contracts in Vietnam, according to which:
“The payment in the purchase, sale, lease-purchase of real estate formed in the future is made many times, the first time does not exceed 30% of the contract value…”
This is a principle in the purchase and sale of houses formed in the future and the parties can agree on the payment obligation but oblige the buyer to perform the payment obligation in installments, the seller must not receive the payment. payment of the entire value of the house at once, the first payment is only made when the investor has started to implement the construction of technical infrastructure according to the approved schedule and content of the project. the next time must be consistent with the progress of housing construction. The compulsory payment in installments is reasonable and does not violate the right of self-determination of the parties in the contract because the payment obligation of the buyer in this relationship arises when the object of purchase and sale has not been formed in reality. In fact, if a one-time payment is made, the problem of capital appropriation of the investor is likely to arise. The law has foreseen the case that if the investor does not carry out the project as committed, the damage caused to the buyer is also more limited than the one-time payment of the entire value of the house. It can be said that payment is the main obligation of the buyer of a house formed in the future. If the buyer fails to perform or does not comply with the agreement, the investor has the right to request the buyer to perform the commitment and make compensation. damage caused by the fault of the buyer, if the buyer does not perform, the seller has the right to cancel or unilaterally terminate the contract, the customer must be responsible for the breach of the contract. In addition, the buyer must pay to the investor an interest on the amount of late payment calculated at the commercial bank loan interest rate at the time of payment corresponding to the late payment period. The choice of interest rate for commercial bank loans must be agreed upon in the contract.
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Frequently asked questions
Unlike other types of property, the time of performance of the obligation to hand over the property often coincides with or is close to the time of signing the contract, in the purchase and sale of houses to be formed in the future, the handover of houses is mostly at a certain time. The point is quite far from the time of signing and often does not specify the exact date, so the right to check the accuracy of the property is of course not guaranteed at the time of signing the contract. Customers have the right to request the investor to take timely remedial measures and compensate for damage in accordance with regulations
The house purchase and sale relationship formed in the future can sign a purchase and sale contract as soon as the house is under construction according to regulations, the amount that the customer must pay is called an advance. The nature and purpose of this money is the money that the customer pays in advance to the investor to own a house in the future and the investor uses this money to supplement capital for the implementation of the housing project itself. In this relationship, both sides benefit. If the investor uses the customer’s advance money for a purpose other than the above purpose, it has falsified the nature of this sale and purchase relationship, only the investor benefits and the homebuyer is unwittingly taken advantage of and The probability that the project is not implemented, the buyer does not receive the house according to the agreement is very high. As such, the investor must use the advance money of the homebuyer to invest in building a house without using this money for any other purpose.
Conclusion: So the above is Regulations on future house purchase and sale contracts in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
