Reduce the risk of fraud and scams
Continuing the meeting program between the 2 sessions of the 6th Session, on the afternoon of November 16, the National Assembly Standing Committee (NASC) gave opinions on the draft Law on Housing (amended) and the draft Law on Real Estate Business (amended).
Reporting on a number of major issues in explaining, accepting and revising the draft Law on Real Estate Business (amended), Chairman of the National Assembly's Economic Committee Vu Hong Thanh said that regarding the conditions for organizations and individuals when doing real estate business, the Standing Committee of the Economic Committee reported: In reality, determining the purpose of seeking profit in the business concept in Clause 21, Article 4 of the 2020 Enterprise Law and the concept of real estate business in Clause 1, Article 3 of the draft Law is difficult to implement.
Therefore, if there is no regulation on criteria for distinction by scale, it will lead to all activities of buying, selling, leasing, and leasing of houses and construction works requiring the establishment of a real estate business enterprise, which is not feasible in practice.
Therefore, the draft Law is amended in Clauses 3 and 6, adding Clause 4 to Article 9 in the direction: Organizations and individuals selling houses and construction works not for business purposes or selling, leasing, or leasing-purchasing houses and construction works on a small scale are not required to comply with the provisions of the draft Law but must declare and pay taxes.
Chairman of the National Assembly's Economic Committee Vu Hong Thanh (Photo: Quochoi.vn).
In case of sale or lease-purchase of houses or construction works between individuals, the contract must be notarized or authenticated in accordance with the provisions of Clause 5, Article 43, to ensure the legal safety of the transaction, limit the risk of fraud, deception, and deception, and supplement information to the database of real estate transactions.
Individuals doing small-scale real estate business do not have to establish a real estate business enterprise but are subject to the scope of the draft Law, must declare and pay taxes and comply with other provisions of the draft Law; this provision does not apply to organizations to ensure professionalism and facilitate State management;
In other cases, organizations and individuals must establish a real estate business enterprise; the Government shall specify in detail the quantity and value of each type of real estate to determine small-scale real estate business.
In addition, the conditions for individuals doing real estate business at Point b, Clause 3, Article 9 of the draft Law submitted to the National Assembly for comments at the 6th Session are based on the conditions for organizations and individuals with the right to establish and manage enterprises in Vietnam at Clause 1 and Point e, Clause 2, Article 17 of the 2020 Enterprise Law.
Through review, the Standing Committee of the Economic Committee found that in reality, there are cases where people do not meet the conditions to be business founders and managers according to the provisions of the Enterprise Law but are still entitled to do real estate business and carry out civil transactions related to real estate.
Therefore, the draft Law is revised in Clause 3, Article 9 so as not to restrict the legitimate and legal rights of organizations and individuals.
Deposits may only be collected not exceeding 5% of the sale price.
Regarding deposits in housing business and future construction projects (Clause 5, Article 23), some opinions agree with Option 1. Some opinions agree with Option 1 and propose to stipulate a maximum deposit of 5% of the selling price or lease-purchase price. Some opinions agree with Option 1 and propose to stipulate a maximum deposit of 10% as prescribed by the Government but not exceeding 10%. Some opinions agree with Option 1 and propose to stipulate a maximum deposit of 15%. Some opinions agree with Option 1 and propose to stipulate more specific regulations.
Some opinions agreed with Option 2. Some opinions agreed with Option 2 and proposed to reduce the maximum deposit rate to 5%.
To ensure the true nature of the deposit and at the same time limit risks for the buyer and lessee, who are often the weaker party, the draft Law is revised in Clause 5, Article 23 as follows: “Real estate project investors are only allowed to collect deposits of no more than 5% of the selling price or lease-purchase price of houses and construction works from customers when the houses and construction works have met all the conditions for putting into business according to the provisions of this Law. The deposit agreement must clearly state the selling price or lease-purchase price of houses and construction works”.
Real estate project investors are only allowed to collect deposits of no more than 5% of the selling price (Photo: Huu Thang).
Regarding payment in the purchase, hire-purchase of houses and future construction works (Clause 3, Article 25), taking into account the opinions of National Assembly Deputies, the draft Law is revised in Clause 3, Article 25 according to the following 2 options:
Option 1: “If the buyer or the lessee has not been granted a Certificate of land use rights, house ownership rights and other assets attached to the land, the seller or the lessor may not collect more than 95% of the contract value; the remaining value of the contract shall be paid when the competent State agency has granted the Certificate of land use rights, house ownership rights and other assets attached to the land to the buyer or lessee.”
This option is intended to ensure the stability of the current policy; customers are allowed to retain a portion of the contract value while waiting for the issuance of the Certificate. The limitation of this option is that when customers bear the risk of not paying 100% of the contract value, ownership cannot be established; in some cases, customers delay completing their payment obligations because they do not need to receive the certificate immediately, even though the investor has fulfilled its commitment and the competent state agency has issued the certificate.
Option 2: “If the buyer or the lessee has not been granted a Certificate of land use rights, house ownership rights and other assets attached to the land, the seller or the lessor may not collect more than 95% of the contract value. The remaining value of the contract shall be transferred by the customer to the investor's account opened at a credit institution for management and the investor may not use this amount; the customer shall enjoy the income arising from this amount. The investor may only use this amount of each customer when the competent State agency has granted a Certificate of land use rights, house ownership rights and other assets attached to the land to the buyer or lessee of the house or construction work”.
This plan aims to ensure consistency and consistency with the regulations on the time of establishing ownership rights in the draft Law and the draft Housing Law (amended), regulations on the completion of financial obligations according to the provisions of the draft Land Law (amended); ensuring the fulfillment of customers' payment obligations.
The limitation of this option is that customers must pay the remaining 5% of the contract value while the Certificate has not been issued; however, accepting the opinions of National Assembly deputies, this option stipulates that the income arising from this amount of money is enjoyed by the customer.
In addition, Clause 5, Article 80 of the draft Law has added provisions on the responsibility of the State Bank to guide the management and payment of profits as prescribed in Clause 3, Article 25.
The Standing Committee of the Economic Committee proposed to keep two options and take a vote to ask for the opinions of National Assembly deputies as a basis for the National Assembly Standing Committee to consider and decide on this issue .
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