On the Government Information Portal, Mr. V.C.H in Hanoi reflected that he is researching and preparing to participate in real estate purchase transactions.
He requested functional agencies to guide the handling of situations regarding signing deposit/purchase and sale contracts of real estate formed in the future to understand and comply with regulations.
A written agreement signed between customers and a real estate brokerage company stipulates: customers deposit 100% of the product value according to the roadmap (10% of equity upon signing; bank disburses 80% of the loan after 1-1.5 months; an additional 10% of equity after about 2 months), while the project does not meet the conditions for opening for sale.
The agreement stipulates that customers must sign a purchase and sale contract, if they do not sign, they will be fined a deposit and charged a consulting fee of 0.5% of the real estate value, if they sign, this fee will not be charged.
When signing the purchase and sale contract, and also signing Appendix 01 of the agreement document, in which: 20% of self-owned capital is converted into a loan contract for the investor; 10% is retained by the broker (from the bank's disbursed amount); the remaining 70% is transferred through a "designated account" which is actually a bank's debt collection account to pay the selling price of products under the purchase and sale contract.
Mr. H asked, is the above-mentioned agreement a legal civil agreement, or is it actually a disguised form of a contract for depositing/buying and selling real estate and illegally mobilizing capital when the project does not meet the conditions for opening for sale?
Does the agreement document and Appendix 01 fall under the case of invalid transaction according to Articles 123, 124 of the 2015 Civil Code?
Regarding this issue, the Ministry of Construction has the following opinions:
Clauses 1, 2, 3, 4, 5 of Article 8 of the 2023 Real Estate Business Law stipulate prohibited acts in real estate business:
Real estate business is not eligible according to the provisions of this law.
Forging documents, intentionally distorting information about real estate, real estate projects put into business.
Not publicizing information about real estate, real estate projects put into business according to the provisions of the law on real estate business.
Fraud, deception, and fraud in real estate business.
Collecting money in the sale, lease-purchase of houses, construction works, and construction floor area in construction works formed in the future not in accordance with the provisions of this Law; using money collected from buyers, lease-purchasers of houses, construction works, and construction floor area in construction works formed in the future contrary to the provisions of law".
Houses, existing construction works and those formed in the future, land use rights that already have technical infrastructure in real estate projects put into business must meet the conditions specified in Articles 14, 24, 31, 35 of the 2023 Real Estate Business Law.
Clause 4, Article 17 of the 2023 Real Estate Business Law stipulates the responsibilities of real estate project investors:
Do not authorize other organizations or individuals to sign deposit contracts, purchase, sale, transfer, lease-purchase of houses, construction works, construction floor area in construction works, land use rights that already have technical infrastructure in real estate projects".
Clause 5, Article 23 of the 2023 Real Estate Business Law stipulates the principles of housing and construction projects formed in the future:
Real estate project investors are only allowed to collect a deposit of no more than 5% of the selling price, lease-purchase price of houses, construction works, and construction floor area in construction works from the depositor to buy, lease-purchase when houses and construction works have sufficient conditions to be put into business according to the provisions of this Law. The deposit agreement must clearly state the selling price, lease-purchase price of houses, construction works, and construction floor area in construction works".
Article 62 of the 2023 Real Estate Business Law stipulates the content of real estate brokerage:
Finding partners that meet customer conditions to participate in negotiation and signing contracts.
Representatives under authorization to perform tasks related to procedures for buying and selling, transferring, leasing, subleasing, and leasing and purchasing real estate.
Providing information and support for parties in negotiating and signing purchase, sale, transfer, lease, sublease, and lease-purchase real estate contracts".
The Ministry of Construction requests citizens to compare the above-mentioned legal regulations and relevant legal regulations to serve as a basis for determining whether project investors sign contracts to receive deposits in transactions of selling, leasing, and purchasing houses, construction works, construction floor area in construction works and the scope of brokerage activities of real estate brokerage service businesses and individuals engaged in real estate brokerage in accordance with the provisions of the law on real estate business.
The contents of legal regulations related to invalid contracts, citizens should compare the provisions of the Civil Code for consideration and determination.
