According to the current regulations of the 2023 Housing Law, social housing buyers are allowed to transfer after 5 years from the date of full payment and issuance of the certificate. The purchase and sale after this time is carried out according to the market mechanism, without limiting the transferee.
In the draft amendment of the law being consulted, the Ministry of Construction proposes changes in the direction of stricter control. After 5 years of use, social housing owners when wanting to sell will no longer be able to transact freely, but only be transferred to people who are eligible to enjoy social housing policies.
Lawyer, Master Pham Thanh Tuan (Hanoi Bar Association) said that social housing is formed from the State's preferential policies on land, credit, taxes... so setting some limits on the right to decide is necessary to ensure the right to social security goals, avoiding the situation of transforming public interests into private interests. Therefore, controlling transfer conditions not only aims to prevent speculation but also contributes to maintaining the stability and correct orientation of this segment.
In essence, this is not an unreasonable restriction of the right to transfer, but a consistent continuation of legal logic right from the time of establishing the initial transaction. Social housing is not a type of commodity operating entirely according to the market mechanism, but is distributed according to policies, with clear restrictions on the subjects to be purchased. Therefore, continuing to control the subjects receiving transfers in the secondary market is appropriate, ensuring the consistency of policies and in accordance with the nature of this type of housing.
At the same time, the regulation is also not intended to prohibit transfers. Owners still have the right to transfer social housing, but within a certain framework, accordingly, the transferee must be eligible for policies. Thus, the right to decide is not eliminated but only implemented conditionally, in accordance with the specific characteristics of social housing.
Current practice shows that allowing free transfer after a certain period has led to the trend of "commercialization" of social housing, reducing the initial meaning of the policy. An asset formed from preferential mechanisms can quickly become a profit-generating tool according to the market, leading to the risk of speculation, profiteering and narrowing the opportunity to access housing for vulnerable groups.
First of all, it is necessary to maintain the principle of limiting beneficiaries throughout, not only in the initial distribution stage but also in secondary transfer transactions. Accordingly, the transferee must still be eligible to buy social housing. This is a core tool to ensure the right social security goals and avoid the situation of "commercialization" of social housing after a period of holding.
However, a particularly important content is to design reasonable transitional regulations. In fact, many people have bought social housing according to current regulations with the expectation of being able to transfer freely after 5 years. Therefore, if the new policy changes towards tightening, there should be clear transitional regulations, accompanied by an appropriate implementation roadmap to avoid causing psychological and market disruption. For example, the transfer restriction regulation may be applied later than the general effective date of the revised Housing Law, in order to create an adaptation period.
For cases where social housing has been allowed to be transferred freely and has actually operated as commercial housing, it is necessary to consider applying an "exception" mechanism. Accordingly, these real estates are no longer bound by transfer conditions in the "ecosystem" of social housing, in order to ensure the stability of transactions and the legitimate rights of existing owners.
In addition, it is necessary to design a mechanism to identify eligible subjects to participate in transactions in the secondary market. Currently, the review of social housing buyers in the primary market is carried out relatively strictly by investors and management agencies. However, if the principle of limiting subjects in secondary transfer transactions continues, it is necessary to clearly stipulate the process of confirming buyers in the direction of inheriting the current mechanism but being simplified, transparent and more feasible. This is to limit transaction congestion as well as prevent acts of circumventing the law.
