Mechanism to retain 5% of the contract value
Lawyer, Master Pham Thanh Tuan - Hanoi Bar Association - said that this proposal has a reasonable basis in terms of balancing the rights and interests between the investor and the buyer.
After handing over the house to the customer, the seller must issue an invoice according to the entire value of the purchase and sale contract, even though at that time the buyer only paid a maximum of 95% of the contract value.
In fact, even when the investor has completed the procedures under its responsibility to issue the Certificate, collecting the remaining 5% from customers is sometimes still difficult due to many different reasons, especially in cases where customers are slow or have not fully coordinated.
After handing over the house, the investor basically had to fulfill financial and accounting obligations related to the entire transaction value, while there was still 5% of the contract value that had not been paid.
Similarly, in cases where the parties agree to let customers carry out procedures for issuing the Certificate themselves, or customers have not fully coordinated in providing documents and completing dossiers to serve the Certificate issuance process, the investor still does not have a basis to collect the remaining 5% because the Certificate has not been issued. This may affect the interests of the investor, although the cause of the delay does not entirely come from the business side.
Therefore, the regulation in the draft on transferring 5% of the value of housing formed in the future to a secured account is a relatively harmonious option. This mechanism both maintains the legal responsibility of the investor in carrying out the Certificate issuance procedures, and ensures that when the investor has fully fulfilled its obligations, the buyer also fulfills corresponding financial obligations according to the contract.
Balance of interests of all parties
Lawyer Nguyen Van Dinh - real estate legal expert, said that this regulation will ensure harmony of interests between the parties, both binding the responsibility of the investor, having to submit dossiers and complete procedures for the State agency to issue pink books to the buyer, and binding the responsibility of the buyer, avoiding delays due to no need to issue pink books.
In principle, after the investor has handed over the house and completed all procedures for the State agency to issue a pink book to the buyer, the investor has completed 100% of the obligation, so it is necessary to automatically pay 100% of the contract value without depending on the buyer's will. This regulation ensures fairness and is in line with the morality of life.
However, one issue also needs to be raised: If the project has problems, causing the issuance of pink books to be delayed, this will cause damage to the buyer because 5% of the contract value may be imprisoned indefinitely.
Lawyer Nguyen Van Dinh said that this is also a situation that may occur in practice. However, in terms of motive and purpose, the investor will not want to slow down the issuance of certificates to customers, but on the contrary, will try to do it quickly to release the frozen money and receive the 5% amount. Both the seller and the buyer share the desire that the Certificate issuance will take place quickly, so they will coordinate to make dossiers and procedures. Therefore, damage to customers and investors only arises when the issuance of certificates is delayed due to objective reasons. To protect buyers, the draft law or decree may stipulate a deadline for depositing money into the frozen account; when the time limit expires and the Certificate is not issued, the principal and interest are refunded to customers, unless the parties agree to extend the term.
