Chairman of the Vietnam Bar Federation Do Ngoc Thinh proposed amending the regulations on common and separate ownership in the Housing Law to limit disputes.
Disputes in apartment buildings in recent times have been common in relation to the area, utilities, infrastructure owned by the investor and residents, the most intense of which is the division of ownership and parking area for motorbikes and cars in the basement. Dr. Do Ngoc Thinh, Chairman of the Vietnam Bar Federation and member of the National Assembly's Judicial Committee, answered VnExpress about this content, on the occasion of the draft amended Housing Law being submitted to the 5th session of the 15th National Assembly.
- Disputes between investors and residents regarding ownership of apartments have been going on for many years, but why have the Housing Law and other legal regulations, through amendments and supplements, not been able to completely resolve this situation?
- The system of legal documents, despite being amended and supplemented many times, still fails to meet practical requirements due to increasingly complex disputes. There are cases that have arisen since before the legal regulations were issued, have lasted until now and have not been resolved completely. Inspection and handling of violations in this field have not been thorough and timely. Many places have loosened management, many investors are slow to pay maintenance fund debts, and there are signs of violating criminal law that have not been intervened by competent authorities.
Meanwhile, the management board elected by residents through the condominium conference has not yet fully promoted its representative role due to the lack of specific guidance on the operation and legality of this organization. Most of the current condominium management boards lack expertise in managing and operating condominiums and have not been professionally trained, so it is difficult to represent and protect the legal rights of residents when disputes arise with investors.
Lawyer Do Ngoc Thinh speaks at the National Assembly. Photo: Pham Thinh
- In your opinion, why are legal regulations on the division of utilities and common and private ownership areas in apartment buildings not feasible in practice?
- The rights of common ownership and private ownership have been stipulated in the Housing Law 2014, the Civil Code 2015 and the Regulations on management and use of apartment buildings (issued with Circular No. 02/2016 of the Ministry of Construction) and a number of other related guiding documents. However, there are still many shortcomings in their application in practice, typically disputes over parking spaces.
According to Circular 02, the area and equipment owned by the owner, and the common ownership of the owner must be clearly stated in the apartment purchase and lease contract. Along with the contract, the investor must provide the buyer with drawings and a list of common ownership according to the provisions of the Housing Law.
Disputes arising between customers and investors are due to the inability to distinguish between common and private ownership, and are not clear from the time of signing the contract, such as whether or not to sell parking spaces, how many parking spaces are in the building, the principles of parking space registration, etc. Therefore, I think that there are legal regulations, but in reality, when the parties enter into a contract without clear distinction, there is still a potential risk of dispute.
Before Circular 02 took effect on February 15, 2016, many apartment buildings had apartment purchase and lease contracts that did not clearly stipulate this, causing many conflicts and disputes over basement ownership.
- What do you think when a lawyer says that the current regulation that the area for parking cars in apartment buildings belongs to the management or ownership of the investor is the main cause of the outbreak of disputes, while this is supposed to be common ownership?
- One of the highlights of Circular No. 02/2016 is the regulation on ownership and management of car parking spaces in apartment buildings. The purchase and lease of car parking spaces is recorded in the apartment purchase and lease contract or a separate contract.
Parking spaces for motorbikes, three-wheelers, and vehicles for the disabled are jointly owned by the owners of the apartment building. As for parking spaces for cars, buyers or lessees of apartments or other areas in the apartment building can decide to buy or rent the space; in case they do not buy or rent, the parking space will be under the management of the investor. The investor is not allowed to include the cost of investing in building this parking space in the selling price or rental price.
Thus, in addition to deciding to buy or rent a parking space in the apartment building where they live, apartment owners can also resell or rent out their parking space. However, the demand for parking spaces in apartments has increased recently, and the purchase and sale of parking spaces is mainly an agreement between two parties, which can lead to a monopoly by the investor, pushing up the selling price.
I think that if the State recognizes that parking spaces belong to investors, it should set a ceiling price, and investors will not demand too high prices for buying or renting spaces. However, with the current large demand for parking spaces, regulations allowing the purchase and resale of parking spaces and the transfer of common and private areas of investors related to parking spaces can easily lead to civil disputes. While this issue is very much related to public interests.
It is also necessary to carefully study the issue of transferring ownership of the basement parking lot to the common ownership of the apartment owners. Because if the area for parking is included in the common ownership, the cost of building the parking space will be included in the cost of selling the house or apartment, and there are households that have not used or have no need to use a car but still have to bear this cost when buying a house.
- The law stipulates that investors are not allowed to include the cost of building parking spaces in the apartment's selling price, but how do we know if they include it in the selling price or not? In reality, there are many apartment buildings with disputes over this issue?
- I have not seen any current regulations clarifying this content. This is really a loophole in the law, people cannot control whether the investment cost of building a car park is included in the cost of selling the apartment or not. The inability to determine which part of the car park belongs to is the cause of the seeds of disputes between investors and residents.
In my opinion, the nature of the parking space of the apartment building is a common property. In fact, all the common areas in the apartment building including the parking space have been included in the selling price of the apartment building and from the time of handover, the investor will terminate his ownership.
- Through monitoring or directly giving opinions and resolving complaints related to ownership disputes in apartment buildings, why do you think so few disputes are brought to court?
- The process of grasping the cases shows that these are all long-standing, pressing disputes in the community. The large number of residents is sometimes disadvantageous because it is difficult to find a common voice. Authorizing dispute resolution is also difficult because no one is willing to stand up to initiate the lawsuit. On the other hand, with a large number of people, it is difficult to agree on the cost of filing a lawsuit, so the case gradually drags on and is left open.
When filing a lawsuit in court, residents or the apartment building management board must first pay an advance payment of court fees based on the value of the property. This causes many people to give up filing a lawsuit and compromise with the investor.
Furthermore, the sales contract signed by both parties is often drafted by the investor and does not clearly state the rights of residents regarding common areas (basement, stairs, terrace, etc.), so residents have little basis to file a lawsuit in court to claim their rights if there is a dispute.
In my opinion, apartment building disputes need to be resolved by the parties on the basis of negotiation and conciliation according to relevant legal regulations. If negotiation and conciliation cannot be achieved, the people's court should be requested to resolve. State agencies and local authorities need to inspect, monitor and strictly handle violations by the parties.
- The draft revised Housing Law is being submitted to the 5th session of the 15th National Assembly. As a National Assembly delegate, how will you speak up to contribute to resolving ownership disputes in apartment buildings?
- The draft is still being consulted, in which it has specifically regulated many contents related to common and private ownership in apartment buildings to limit current disputes, making apartment buildings safer during use.
I have noted the opinions of lawyers in the Vietnam Bar Federation to contribute to amending and supplementing the 5th draft of the Housing Law. We have proposed 4 groups of issues on ownership, development policies, housing transactions and management, to minimize disputes related to housing, maximally protect the rights and legitimate interests of related parties, and promote the completion of the legal system in the housing sector in Vietnam.
I propose to amend the regulations on common ownership and private ownership of apartment buildings in the draft revised Housing Law. Accordingly, parking spaces in apartment buildings are classified as common ownership and the issue of buying and selling these spaces is not raised. This will minimize related disputes.
Source link
Comment (0)