Decree No. 02/2022/ND-CP has officially taken effect from March 1st, 2022, replacing Decree No. 76/2015/ND-CP guiding the Law on Real Estate Business.

We update some important and notable contents in real estate business for your reference.

1. Conditions for real estate business for individuals and organizations

There are two conditions for individuals and organizations to regularly conduct real estate business:

• Must establish an enterprise or a cooperative with the business registration of real estate;
• It must be disclosed on the enterprise’s website, at the head office of the Project Management Board (for real estate investment projects), at the real estate trading floor (for business via the real estate trading floor) the following information:
  • Information about the enterprise: name, head office address, contact phone number, name of the legal representative;
  • Information about real estate put into business;
  • Information on mortgage of houses, construction works, real estate projects put into business (if any);
  • Information on the quantity and type of real estate products being traded, the quantity and type of real estate products sold, transferred, lease-purchased and the remaining quantity and types of products that are still being traded.

Thus, according to the above provisions, individuals doing real estate business must regularly establish a legal entity. Irregular sales and rental cases will not have to establish a legal entity. Eg:

• Organizations selling houses, construction works, transferring land use rights due to bankruptcy, dissolution, separation;
• Organizations that sell, transfer, lease or lease-purchase real estate as public property.
• Credit institutions, asset management companies of credit institutions sell houses, construction works, transfer land use rights, transfer real estate projects being used as guarantees or mortgages for recovery debt.
• Organizations, households and individuals selling houses, construction works, transferring land use rights under decisions of courts or competent state agencies when settling disputes, complaints and denunciations .
• Organizations, households and individuals that sell, lease, lease-purchase houses and construction works under lawful ownership, transfer, lease or sublease land use rights under their lawful use rights.

Organizations, households, and individuals that sell, lease, lease-purchase or transfer real estate they invest in, which are not real estate construction investment projects for business.

2. Real estate business contract template

There are 08 types of real estate business contracts that must be used according to the form when doing real estate business, including:

• Contract of sale, purchase and lease-purchase of apartments;
• Contract of sale, purchase, lease-purchase of tourist apartments, office apartments combined with accommodation;
• Contract for the sale and purchase of separate houses;
• Contract of sale, purchase, lease purchase of houses and other construction works.
• Contract for renting houses and construction works.
• Contract for the transfer of land use rights.
• Contract for lease, sub-lease of land use rights.
• Contract for the transfer of the whole (or part) of the real estate project.

According to this regulation, parties in real estate business transactions must use model contracts prescribed by the State, instead of enterprises registering contract templates as before. However, the State still allows the parties to agree on the contents of the contract.

3. Conditions for transfer of future housing purchase and sale contracts

Contract assignment is not applicable to social housing purchase and sale contracts.

4 conditions for transfer of contracts for purchase and sale of houses, lease-purchase of houses to be formed in the future and for transfer of lease-purchase contracts of existing houses and constructions:

• Having a sale and purchase, a lease-purchase contract made according to a prescribed form; where the parties have signed a contract before the effective date of this Decree, the signed contract must have;
• The buyer in the contract have not yet submitted dossiers to request competent state agencies to issue certificates of land use rights and ownership of houses and other land-attached assets;
• Contracts for sale, purchase, lease-purchase of houses and construction works must be free of disputes or lawsuits;
• Houses and construction works under purchase and sale or lease-purchase contracts are not subject to distraint or mortgage, unless agreed by the mortgagee.

4. Responsibilities for notification of real estate enterprises receiving the transfer of contracts to buy, sell, and lease-purchase houses to be formed in the future

Within a maximum period of 5 days from the date of completing the receipt of the transfer of the contract of purchase, sale or lease-purchase of future houses and the contract of lease-purchase of existing houses and construction works, the real estate enterprise shall send a written notice of the receipt of the contract to the competent State agency to monitoring.

The notice must include the name and address of the real estate project, the name of the enterprise transferring the contract, the number of contracts, the number of houses and construction works under the transfer contract.