Transfer of real estate Projects
1. Real Estate project
A real estate project is a construction project that is established, appraised, and approved according to the provisions of construction law. Real estate projects include projects involving building houses and construction works, projects involving building infrastructure to transfer or to lease land use rights of the infrastructure, in accordance with the provisions of law.
To carry out a real estate project, a business is required to meet many conditions in terms of capital and capacity. During the implementation process, there will be times when the Enterprise wants to recover capital or increase project implementation capacity. To do this, the enterprise will have to transfer part or all of the project to another enterprise.
2. Conditions for project transfer
For the transfer project…
- The project is approved by competent agencies and there is a specific 1/500 plan made or general ground planning which is approved;
- The project and part of the transferred project have completed compensation and site clearance. In a case where the entire infrastructure Contsruction investment project is transferred, the corresponding technical infrastructure works must be completed according to the schedule stated in the approved project;
- The project has no disputes over land use rights and has not been distrained to ensure judgment enforcement or to comply with administrative decisions made by competent state authorities;
- When there is no decision on a project or land revocation conducted by a competent agency; in case there is any violation of the regulationsas the project progresses, , the investor must abide by the decision on penalty.
For the transferor
The transferring enterprise must already have a certificate of land use rights for all or part of the transferred project.
For the transferee
The enterprise receiving the transfer of all or part of a real estate project must be a real estate enterprise, have sufficient financial capacity and must commit to continue conducting the business as prescribed by the legal regulations , and ensure that the project is conducted under proper progress and plan.
3. Authority to allow transfer of all or part of a real estate project
For Some real estate projects, the investor must be approved or granted an Investment Registration Certificate according to the provisions of Investment Law., In these cases the authority that approves the project must make sure that all procedures for transferring all or part of the project are followed. The process must be carried out according to provisions of Investment Law.
For real estate projects that do not fall into the cases specified above, the authority to authorize the transfer of all or part of the real estate project is as follows:
- The People’s Committee of the province or municipal city (hereinafter referred to as the Provincial People’s Committee) decides to allow the transfer of all or part of the real estate project for projects whose investment is decided by the Provincial People’s Committee;
- The Prime Minister decides to allow the transfer of all or part of real estate projects for projects whose investment is decided by the Prime Minister.
4. Procedures for transferring real estate projects fall under the deciding authority of the Provincial People’s Committee
| Process | Detailled description |
| Step 1 | Submitting documents
The project investor shall submit directly or by post 01 set of documents according to regulations, to the Provincial People’s Committee where the project is located or the provincial housing management authority (if authorized by the Provincial People’s Committee). |
| Step 2 | Appraisal of Documents
The agency assigned for appraisal shall seek opinions on the appraisal and then appraise the transfer documents according to regulations. The agency willrequest that the People’s Committee of the province consider whether the transfer should be approved. The maximum time for seeking opinions about the appraisal, conducting the appraisal, and when a decision is made about whether the transfer will be approved is 30 days from the date of receipt of complete and valid documents. If the application does not contain a complete set of the necessary documents, , the investor must supplement the documents as required. The time for supplementing documents is not included in the processing time. In case the whole or a part of a real estate project is ineligible for transfer, the receiving authority must notify the project investor of the reason, in writing. |
| Step 3 | Signing of the Project Transfer Contract
Within a maximum of 30 days from the date when the decision to permit the transfer of the whole or a part of the real estate project is made, the transferor and the transferee must complete the signing of a transfer contract. Once this is signed the parties can then complete the handover of the whole or the part of the project to be transferred. The contract for transfer of the whole or a part of the real estate project, is concurrently the contract for the transfer of the land use right of the whole or a part of the real estate project. This is except for cases of land lease with the payment of annual land rents. |
| Step 4 | Notifification
At least 15 days before handing over procedures, the transferor of the project or part of the real estate project must notify all customers and related parties (if any) in writing. The transferor must also post at least 03 consecutive times in a local newspaper or on a local television station or central television station about the transfer of the project or part of the project. customers or related partiy have opinions or questions about their interests related to the whole or a part of the real estate project to be transferred. In this case the transferor is responsible for resolving it in accordance with the law, before carrying out the procedures for handover of the whole or a part of the real estate project. |
| Step 5 | Handover of the Project
After signing the transfer contract, the parties are responsible for paying the appropriate taxes and fees according to the provisions of law. The transferor is responsible for handing over all project documents and the transferred project portion to the transferee. The handover must be made in writing and signed by both parties. The transferee may continue to implement the project or project portion immediately after completing the obligation to pay taxes and fees and receive the project or project portion’s handover. |
| Step 6 | Transfer of the Land Use Right
After signing the transfer contract, in the case of transfer of the whole or a part of the real estate project associated with land use rights, the parties must carry out procedures for land-use change registration according to law. In the case of a transfer of the whole or a part of the real estate project associated with the land with annual rent payment, one of the parties shall request a competent authority to appropriate the land to lease the land in accordance with land law. |
| Step 7 | Announcment of the decision to allow the project transfer
The People’s Committee of the province shall publicly announce the decision to permit the transfer of the whole or part of the real estate project on the web portal of the People’s Committee of province or housing authority of the province where the project is located. And the Committee will also send this decision to the Ministry of Construction for consolidation and monitoring. The transferor and transferee must publicly announce this decision on their website. |
5. Procedures for Transferring Real Estate Projects fall under the deciding authority of the Prime Minister
| Process | Detailled description |
| Step 1 | Submitting documents
The investor of the real estate project shall submit 1 set of the application documents in person or by post to the People’s Committee of the province where the project is located. |
| Step 2 | Appraisal of Documents
Within 45 days from the date of receipt of a complete and valid application, the People’s Committee of the province shall seek opinions on the appraisal from relevant ministries and agencies and request that the Prime Minister consider and grant approval for the transfer. In case the whole or the part of the real estate project is ineligible for transfer, the People’s Committee of the province must provide the project investor with an explanation in writing. |
| Step 3 | Approval of the Application
After receiving the Prime minister’s approval for the transfer the parties are responsible for taking the next steps for transferring real estate projects under the deciding authority of the Provincial People’s Committee, including:
|
| Step 4 | Announcing the Decision to allow Transfer of the Project
The People’s Committee of province shall publicly announce the decision to permit the transfer of whole or part of the real estate project on the web portal of the People’s Committee of the province or housing authority of province where the project is located. The Committee will also send this decision to the Ministry of Construction for consolidation and monitoring.The transferor and transferee must publicly announce this decision on their website. |
LIST OF DOCUMENTS
- The investor’s application for transfer of the whole or part of a real estate project includes:
The application form for transfer of the whole (or part) of the real estate project according to the prescribed form;
Draft contract for transfer of the whole (or part) of the real estate project according to the regulations;
Documents (copies either with originals for comparison, or notarized/authenticated) in relation to the real estate project to be transferred, including:
- Decision or approval for investment policy, or investment permit or approval for investment issued by a competent authority;
- Decision for approval of the project;
- 1/500 scale detailed plan or master plan drawing;
- Documents proving completion of project site clearance;
- Documents proving that the construction of the corresponding technical infrastructure works has been completed according to the schedule stated in the project (for the case of a transfer of the entire projectduring infrastructure construction);
- Certificate for the project.
Report on the real estate project implementation process up to the time of transfer according to the prescribed form.
- A transferee’s application for transfer of the whole or part of a real estate project includes:
Application form for receipt of the whole (or part) of the real estate project according to the prescribed form;
Enterprise Registration Certificate or Investment Registration Certificate or documents proving the establishment of the organization (a copy with the original for comparison or a notarized/authenticated copy);
Documents proving financial capacity and sources of funds to be raised (if any) in accordance with the law to ensure the continued implementation of the project according to the schedule approved by the competent authority; for real estate enterprises that receive the transfer, they must have documents proving their financial capacity according to regulations.
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