On the Government Information Portal, Mr. T.L in Hanoi shared that the Housing Law 2023, Decree No. 95/2024/ND-CP stipulates that when implementing capital mobilization under the form of BCC contract to build a housing project, there must be a document approving the conditions for capital mobilization from the Department of Construction where the housing project is implemented.
Mr. L asked, in the case where a housing project investor mobilizes capital under the form of a BCC contract to build a project component only related to trade, services, and education under a housing project without having to mobilize capital to build a housing component under that housing project, does the investor have to request a document approving the conditions for capital mobilization from the Department of Construction?
The Ministry of Construction responds to this issue as follows:
Article 114 of the 2023 Housing Law stipulates forms of capital mobilization for housing development. Including the form of "Mobilizing through capital contribution, investment cooperation, business cooperation, joint ventures, and associations of organizations and individuals" and assigning "The Government to regulate the conditions for each form of capital mobilization for housing development".
Point b, Clause 1, Article 115 of the 2023 Housing Law stipulates that capital for developing commercial housing includes many capital sources; including: "Caper mobilized through capital contribution, investment cooperation, business cooperation, joint ventures, and associations of organizations and individuals".
Point b, Clause 3, Article 116 of the 2023 Housing Law stipulates that capital for housing development must be used for housing development and for implementing housing construction investment projects, and capital mobilized for other projects or other purposes must not be used.
Article 43 of Decree No. 95/2024/ND-CP dated July 24, 2024 of the Government detailing a number of articles of the Housing Law stipulates the conditions for capital mobilization through the form of capital contribution, investment cooperation, business cooperation, joint ventures, and associations of organizations and individuals:
"In one of the forms of housing development according to the project specified in Clause 1, Article 30 of the Housing Law, except for investment projects in the construction of infrastructure of housing areas to transfer land use rights in the form of dividing plots for sale to individuals to build their own houses.
The project specified in Clause 1 of this Article has a decision on land allocation or land lease by a competent authority or a person with land use rights according to the provisions of the law on land.
In case the housing construction investment project is subject to investment policy approval at the same time as the investor's approval as the project investor, there must be a written approval of the investment policy from the competent authority and the competent authority has allowed the change of land use purpose for the land to be changed (if any).
The project investor specified in Clause 1 of this Article has issued a document notifying that it is eligible for capital mobilization from the housing management agency at the provincial level where the project is located....
The total capital mobilized in the forms prescribed in this Article and Articles 44, 45, 46, 47 and 48 of this Decree and the equity must not exceed the total investment capital of the project, including land use fees and land rents that the investor must pay according to the provisions of the law on land".
According to the above legal regulations, in case the investor mobilizes capital to implement a housing construction investment project as prescribed in Clause 1, Article 30 of the 2023 Housing Law (except for the investment project to build infrastructure of a housing area to transfer land use rights in the form of subdivision and sale of land to individuals to build their own houses) through the form of capital contribution, investment cooperation, business cooperation, joint ventures, and associations of organizations and individuals to develop housing, they must meet the conditions for capital mobilization as prescribed in Article 43 of Decree No. 95/2024/ND-CP.
In case the investor of a project transfers land use rights with technical infrastructure in the real estate project to individuals to build their own houses, it must comply with the provisions of Section 2, Chapter IV of the Law on Real Estate Business 2023 and Article 9 of Decree No. 96/2024/ND-CP dated July 24, 2024 of the Government detailing the implementation of a number of articles of the Law on Real Estate Business.
