Unable to provide legal documents, Gamuda Land is slow to hand over the Celadon City project, many customers want to terminate the contract and demand compensation.
Recently, many customers who bought houses at Apartment Building A5, part of the Tan Thang Sports Complex and Residential Area project (commercial name is Celadon City, located on land plot No. 39, map sheet No. 40, in Son Ky ward, Tan Phu district, Ho Chi Minh City) have reported to Nha Bao and Cong Luan Newspaper that the investor, Gamuda Land Joint Stock Company (Gamuda Land), did not fulfill the terms of the sales contract and did not provide sufficient legal documents to answer customers' questions.
According to some customers who bought apartments in the Diamond Analta subdivision, they were signed a sales contract by the investor from mid-2019 to near the end of 2020. The house handover deadline stated in the contract is in the second quarter of 2022, along with the allowed delay of 90 days, then by the beginning of the fourth quarter of 2022, Gamuda Land is responsible for handing over the house to the customer.
Tan Thang Sports Complex and Residential Area Project - Celadon City
However, at the time mentioned above, Gamuda Land had not yet completed the project. It was not until January 2023 that some customers received a notice from Gamuda Land, requesting to complete their financial obligations to proceed with the handover of the house. Thus, this investor was about 4 months late in handing over and from this point on, additional conflicts arose between customers and the investor, related to the terms of the sales contract.
Specifically, according to the sales contract signed by Gamuda Land with customers, Article 11.7a on "Penalty for late handover" also stipulates that if the buyer has completed the payment obligation as prescribed but the seller does not hand over the apartment to the buyer, the seller will have to pay interest at a rate of 18%/year calculated on the total value of the purchase price payments that the seller has actually received from the buyer for each day of late handover, calculated from the end date of the permitted late handover period until the date of the handover notice when the apartment is eligible for handover as prescribed.
In addition, according to Article 11.7b of the contract, if the seller continues to not hand over the apartment from the date of the end of the permitted late handover period, the two parties can agree on another handover date, the seller will continue to bear the late handover interest during this period. Or another option is that the buyer can unilaterally terminate the contract and Article 18.4 of the contract will be applied.
Buildings in Diamond Alnata area - Apartment complex A5.
Article 18.4 of this sales contract also stipulates that Gamuda Land must refund the money received from the customer (without interest), pay the late delivery interest calculated on the total amount received, calculated from the time of termination of the permitted late delivery period until the effective date of the contract termination notice.
In addition, Gamuda Land must also pay a fine equivalent to 30% of the purchase price for breach of contract and compensate for any actual damages incurred by the buyer due to the seller's breach of contract.
With the above clear terms, a group of customers did not accept the late handover and requested to terminate the contract according to Article 11.7b and perform the investor's responsibilities according to Article 18.4. In addition, some customers only requested Gamuda Land to pay a penalty interest of 18%/year on the amount paid according to the contract terms.
Gamuda Land was fined for raising capital illegally, customers lost confidence and wanted to cancel the contract.
To claim legitimate rights, at the working sessions, some customers requested Gamuda Land to provide full legal documents of the project such as documents confirming eligibility to sell and lease future housing issued by the Ho Chi Minh City Department of Construction, documents confirming eligibility for acceptance, documents approving bank guarantees, etc.
After many dialogues, these requests as well as the demand for rights have not been fully met. The content only stops at the level of recognition without a clear direction for resolution. Therefore, some people have expressed frustration at having to spend a lot of effort to claim their rights, which were clearly stated in the sales contract.
Customers who bought apartments at Apartment Complex A5 and A6 have had many dialogues with the investor but have not reached a final result.
For example, in the case of Mr. P.D.T, a customer who signed a contract with Gamuda Land to buy an apartment at the P1 podium of Diamond Alnata (A5a) on September 4, 2020, he said that because the investor violated the handover deadline and felt no longer confident in this project, the customer decided to terminate the sales contract according to the terms of the contract.
On November 9, 2022, Mr. T. sent a notice of contract termination to Gamuda Land, requesting the investor to activate the terms agreed upon in the sales contract. On November 18, 2022, Mr. T. continued to send a payment request to the investor to request Gamuda Land to make full payment.
Instead of meeting the customer's rights as stipulated in the terms, on December 5, 2022, Gamuda Land invited Mr. T. to work on the issue of delayed handover and expressed that they would send customers promotions and reduced service fees. However, Mr. T. did not agree to the promotions offered.
“They cannot offer such promotions to deny responsibility for the delay in handover. I also asked the investor to provide legal documents as well as a copy of the guarantee contract when signing the contract, but they could not provide it. The problems of this project and the investor's behavior have made me no longer want to keep this apartment,” Mr. T. was upset.
As a last resort, after many unsuccessful attempts to claim his rights, Mr. T. recently had to file a civil lawsuit against the investor Gamuda Land at Tan Phu District People's Court to claim his legitimate rights.
Many customers gathered at Gamuda Land's office area to sign a petition to the authorities, hoping that the investor would refund the money they had spent on their homes in accordance with the penalty decision of the Ho Chi Minh City People's Committee. At the same time, they requested that the investor must comply with the terms of the contract.
It is known that although the contract for the sale and purchase of apartments at Apartment Buildings A5 and A6 of the Tan Thang Sports Complex and Residential Area - Celadon City project was signed a long time ago, only recently on May 8, the Ho Chi Minh City Department of Construction issued a document allowing Gamuda Land to sell future housing.
According to this document, the project is allowed to sell future housing for 160 apartments in apartment complex A5 and 1,153 apartments in apartment complex A6.
Regarding this project, on April 13, the Ho Chi Minh City People's Committee also issued a decision to administratively sanction Gamuda Land for the violation of "Illegal capital mobilization" at the A5 Apartment Complex project mentioned above. Gamuda Land was fined 900 million VND and forced to return the capital mobilized illegally.
Does it constitute the crime of "Deceiving customers"?
Looking at the case from a legal perspective, lawyer Diep Nang Binh - Head of Tinh Thong Luat Law Office said that in order to do business in future housing, before selling real estate, investors need to meet the conditions for future real estate to be put into business as prescribed in Article 55 of the Law on Real Estate Business 2014.
Specifically, the investor must have all the following documents: Documents on land use rights, project documents, construction drawings approved by competent authorities, Construction Permits in cases where a Construction Permit is required, documents on acceptance of the completion of construction of technical infrastructure corresponding to the project progress; In the case of apartment buildings or mixed-use buildings with residential purposes formed in the future, there must be a record of acceptance of the completion of the foundation of that building.
Before selling or leasing future housing, the investor must notify the provincial housing management agency in writing that the housing is eligible for sale or leasing.
“Thus, when there is no construction permit, not enough conditions to open the sale of future housing, the investor has signed a sales contract with customers, which is against the law. This act can be prosecuted for criminal liability for the crime of deceiving customers if after the investigation, the investigating agency verifies that there are enough elements to constitute a crime.
Lawyer Diep Nang Binh - Head of Tinh Thong Luat law office.
According to the provisions of Clause 1, Article 198 of the 2015 Penal Code, amended and supplemented in 2017, deceiving customers can be understood as buying or selling goods or providing services by weighing, measuring, counting, calculating goods or services fraudulently or using other fraudulent tricks in buying and selling to gain illegal profits," lawyer Diep Nang Binh analyzed.
On the contrary, if the act of deceiving customers does not constitute the crime of deceiving customers according to the provisions of the 2015 Penal Code, the violator will be administratively sanctioned according to the provisions of Article 61 of Decree 98/2020/ND-CP with a maximum fine of VND 20,000,000.
In addition, the subject committing the act may have the right to use the Business License, Certificate of Business Eligibility, or Practice Certificate revoked for a period of 1 to 3 months or have its operations suspended for a period of 1 to 3 months for violations specified in Clauses 4 and 5 of this Article in case of repeated violations or recidivism.
In addition, many customers also expressed concerns about whether the sales contract between customers and Gamuda Land would be invalid because the investor signed the contract when the conditions for opening for sale were not met, and whether the customers' rights would be guaranteed under this contract or not?
Regarding this issue, Lawyer Diep Nang Binh said, Pursuant to Articles 123 to 129, Article 407, Article 408 of the 2015 Civil Code. Civil contracts are invalid in 8 cases: Contracts are invalid due to violation of the prohibitions of the law, contrary to social ethics, Civil contracts are invalid due to forgery; Contracts are invalid due to establishment and performance by minors, persons lacking civil act capacity, persons with difficulty in cognition, controlling behavior, persons with limited civil act capacity; Contracts are invalid due to confusion; Contracts are invalid due to deception, threats, coercion; Contracts are invalid due to the establishment of the person who fails to perceive and control his/her behavior; Contracts are invalid due to non-compliance with regulations on form; Contracts are invalid due to having an object that cannot be performed.
Therefore, if one of the above conditions is met, the contract may be void. However, there are two types of void contracts: Total void contracts and Partial void contracts.
“In the case of a completely invalid contract, the parties shall restore the original status and return to each other what they have received. If it is not possible to return in kind, it must be returned in cash, except in cases where the assets, benefits, and profits obtained are confiscated according to the provisions of law. In the case of a partially invalid contract, the remaining valid part shall continue to be performed by the parties.
If the terms in the contract of this project are: Penalty to the seller for late delivery of 18%/year; the seller must compensate 30% if the buyer wants to terminate the contract due to late delivery of the part that is still valid in the contract, then the parties need to carry out the transaction exactly as committed", lawyer Diep Nang Binh analyzed.
In response to readers’ concerns, the Journalists and Public Opinion Newspaper also sent questions to the investor Gamuda Land to clarify the information reflected, and at the same time learn about measures to resolve customer benefits from the investor according to the signed contract in the coming time. However, after sending information and questions for many days, Gamuda Land still has no answer on these issues.
Gia Nguyen - Le Phong
According to the information introduced on Gamuda Land's website, this is the real estate development division of Gamuda Berhad, Malaysia's leading construction and infrastructure development group. With more than 25 years of experience in urban and high-rise development, Gamuda Land has so far built 12 urban areas and 9 large-scale integrated high-rise projects in Malaysia, Singapore, Vietnam and Australia, with a total development value (GDV) of over 5.5 billion USD.
Entering the Vietnamese market in 2007, Gamuda Land is currently investing in two urban areas: Gamuda City with a scale of 274 hectares in Hoang Mai district, Hanoi and Celadon City with an area of 82 hectares in Tan Phu district, Ho Chi Minh City.
In addition, recently, the Elysian project at 170 Lo Lu Street (Truong Thanh, District 9, Thu Duc, Ho Chi Minh City) was also promoted by Gamuda Land as the second project of this investor in Ho Chi Minh City. This is an apartment project deployed to anticipate the development of traffic infrastructure in this area with a scale of 3 hectares with nearly 1,400 apartments.
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