Regarding the regulations on deposits for purchasing real estate in the future or existing, the Ho Chi Minh City Real Estate Association (HoREA) believes that offering two options to choose from may be inadequate and that the best option is to combine both options into one.
Specifically, in “option 1” of the draft Law on Real Estate Business (amended), the corresponding provision in Clause 1, Article 328 of the 2015 Civil Code on the purpose of deposit to ensure contract performance is cited. In reality, after the contract has been signed, there are rarely cases where the depositor is defrauded by the deposit recipient because the contract is often closely checked by the parties and implemented in accordance with the provisions of law, and when the contract is executed, the deposit is often deducted from the initial payment of the transaction.
As for "option 2" of the draft Law, corresponding to the provisions of Clause 1, Article 328 of the 2015 Civil Code on the purpose of deposit to ensure contract signing, in reality, before signing the contract, there are often situations where the depositor is defrauded by the deposit recipient and does not execute the contract, causing damage to the depositor.
Integrating two options for future housing deposits will promote advantages and limit disadvantages.
Therefore, HoREA has proposed to merge in the direction that "Real estate project investors are allowed to collect deposits from customers when the houses and construction works have met all the conditions for being put into business and have conducted transactions in accordance with regulations for the purpose of ensuring contract performance or real estate project investors are only allowed to collect deposits for the purpose of ensuring contract signing according to the agreement with customers when the project has a basic design appraised by a state agency and the investor has one of the documents on land use rights specified in Clause 2, Article 24 of this Law.
The deposit agreement must clearly state the selling price, lease-purchase price of the house or construction work. The maximum deposit amount is according to Government regulations but must not exceed 10% of the selling price, lease-purchase price of the house or construction work, ensuring compliance with the socio-economic development conditions in each period and each type of real estate.
“Option 1 and option 2 are both correct, so it is necessary to integrate both options into one, the regulation on deposit” to ensure contract signing or deposit to ensure contract performance to protect the legitimate rights and interests of customers buying, renting and purchasing real estate, available housing or housing in the future”, Mr. Le Hoang Chau, Chairman of HoREA assessed.
In addition, with the request for strict regulations on investors using deposits for the right purposes, HoREA found that Clause 4, Article 8 of the Draft Law on Real Estate Business prohibits investors from collecting money from selling or leasing future housing that is not in accordance with the provisions of this Law; using money collected from buyers or leasing future housing or construction works that is in violation of the law, including deposits, so there is no need for further regulations.
In addition, to ensure the consistency and uniformity of the legal system, HoREA proposes to amend and supplement Clause 1, Article 328 of the 2015 Civil Code: “A deposit is when one party transfers to the other party a sum of money or precious metals, gemstones or other valuable objects for a period of time to secure the conclusion or performance of a contract. In cases where other laws have provisions on deposits, the provisions of this Code and relevant laws shall apply.”
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