On the afternoon of July 15, at the Social Review Conference on the draft Law on Real Estate Business (amended) organized by the Central Committee of the Vietnam Fatherland Front, Mr. Nguyen Van Sinh - Deputy Minister of Construction said that the draft law is built on six major viewpoints and orientations.
Can projects that have not fulfilled financial obligations be transferred?
One of the most important issues raised by the Ministry of Construction for comments is the condition for transferring real estate projects.
According to Mr. Nguyen Van Sinh, previous regulations required projects to complete financial obligations before being transferred. However, in reality, many projects have a need for transfer but are stuck because they have not completed financial obligations.
The Ministry of Construction proposes to study allowing project transfer in cases where financial obligations have not been fulfilled. The condition is that the transferee must continue to inherit all obligations and responsibilities for project implementation.
According to the Deputy Minister of Construction, if this bottleneck is removed, many real estate projects can be unblocked.
However, the issue is to clearly define the responsibilities of the old and new investors, especially regarding financial obligations, project progress and the rights of customers who have signed contracts.
Preventing the situation of old and new investors shirking responsibility
Contributing opinions on this content, Dr. Nguyen Minh Phong - an economic expert said that the draft has made a shift from mainly controlling transaction conditions to paying more attention to the mechanism of deterrence and inheritance of responsibility.
The draft has further clarified the rights and obligations of the transferor and the transferee; increased synchronization with investment laws; improved regulations on contracts and project information disclosure.
However, according to Dr. Nguyen Minh Phong, the draft has not fully defined which obligations still belong to the transferee, and which obligations are implicitly transferred to the transferee.
The lack of clear regulations may lead to a situation where the old investor believes that responsibility has expired after the transfer, while the new investor believes that the obligations arising before receiving the project still belong to the old investor. At that time, homebuyers are at risk of becoming the loser.
He proposed to stipulate that the transferee naturally inherits all rights and obligations of the investor to the customer, unless otherwise provided by law. The agreement between the transferring parties must not reduce the legitimate rights and interests of the customer.
Old and new investors must be jointly responsible
Another hot issue is the gap of responsibility in the transitional period, from when the transfer decision takes effect to when the parties complete the project handover.
According to Dr. Nguyen Minh Phong, if the joint liability is not clearly defined, the parties may shirk responsibility when the handover of dossiers, maintenance funds, bank guarantees and registration updates have not been completed.
This may cause disputes related to house handover progress, maintenance fees, warranty and obligations to customers.
He proposed that in the transitional period, the transferor and the transferee must be jointly responsible for the customer. The transferor must continue to be responsible until the complete handover of all documents to the transferee is completed.
Must publicize the capacity of the new investor and the cash flow of customers
Dr. Nguyen Minh Phong also requested the transferring party to publicize the transfer dossier, financial capacity of the receiving party and notify all customers who have signed contracts and paid according to the schedule.
When transferring the project, the parties must compare and compulsorily hand over the total amount of money the customer has paid, remaining financial obligations, account for continued payment, 2% maintenance fund, completion documents, design documents, construction warranty, legal documents, guarantees, insurance and customer documents.
The draft also needs to clearly stipulate the transfer time and sanctions for cases of non-transfer or incomplete transfer.
According to Dr. Nguyen Minh Phong, competent state agencies must check dossiers, tax obligations, land, dispute status, number of signed contracts, guarantee obligations and the capacity of the transferee before approving.
He believes that the amendment of the law needs to strongly shift from the thinking of "controlling project transfer conditions" to "controlling post-transfer liability", ensuring that buyers, leasors and related entities are not affected when the project changes investors.
