The Ministry of Construction received feedback and recommendations from citizen D. T. H. G on the Information System for receiving and processing feedback and recommendations on legal normative documents of the Ministry of Justice related to housing law regulations.
The content of the petition is as follows:
Clause 4 of the 2023 Housing Law applies to the case of mixed-use apartment buildings where: "each of these functional areas has a common ownership part separated from the common ownership part of the entire apartment building, which is managed and operated independently".
According to this regulation, maintenance funds are divided into many parts according to the floor area ratio of each functional area for management and private use. However, Clause 4 does not stipulate: Method of determining the maintenance fund for the common ownership part of the entire apartment building; Ratio of allocation for the common ownership part of the entire apartment building; Whether this fund is determined before or after the division of maintenance funds to functional areas.
Meanwhile, point a, clause 5 stipulates: "For the maintenance funds of the apartment building and the common ownership part of the apartment complex, transfer them to an account established by the apartment building management board..." This regulation implicitly states that there exists a clause: "maintenance funds of the apartment building" to be transferred to the Management Board for management.
However, Clause 4 does not stipulate the formation mechanism or method of determining this expense. Therefore, problems arise in the process of applying the law: From which source is the maintenance expense of the apartment building determined? Is it deducted before or after the maintenance expense is divided according to each functional area?
In case functional areas have been independently divided and have their own management and operation mechanisms, according to what principles is the maintenance cost of the apartment building determined? The lack of specific regulations leads to the possibility of many different understandings and implementation options between mixed-use apartment projects".
Regarding this proposal, the Ministry of Construction has issued Document No. 9485/BXD-QLN responding as follows:
Clause 4, Article 155 of the 2023 Housing Law stipulates the use of maintenance funds for mixed-use apartment buildings: "In cases where a mixed-use apartment building can separately divide different functional areas in the same apartment building, including apartment functional area, service business functional area, and each functional area has a common ownership part separated from the common ownership part of the entire apartment building, which is managed and operated independently, the investor of the housing construction investment project and the buyer, lease-purchaser of the apartment or other area in the apartment building agree in the purchase and sale contract, lease-purchase contract or prepare a contract appendix on the division of the maintenance fund ratio into many parts for management and use.
The agreement on the sharing of the maintenance cost ratio specified in this clause is calculated according to the principle of the percentage of the construction floor area of each functional area in the apartment building on the total construction floor area of that apartment building".
Clause 5, Article 155 of the 2023 Housing Law stipulates the management of maintenance funds for mixed-use apartment buildings that can be separately divided into different functional areas in the same apartment building:
a) For the maintenance funds of the apartment building and the common ownership part of the apartment complex, transfer them to an account established by the apartment building management board as prescribed in point a, clause 2, Article 153 of this Law for management and use;
b) For the maintenance cost of the service business area, the owner of the service business area shall self-manage and use it to maintain the common ownership part of this functional area".
The principle of apartment building maintenance is stipulated in Article 31 of the Regulation on management and use of apartment buildings issued together with Circular No. 05/2024/TT-BXD dated July 31, 2024 of the Minister of Construction detailing a number of articles of the Housing Law.
Currently, the Ministry of Construction is studying and amending the 2023 Housing Law, in the process of amending the 2023 Housing Law and guiding documents for implementation, the Ministry of Construction will study and amend and supplement to clarify a number of regulations related to the management and use of apartment buildings.
