Can Foreigner Authorize Other Person to Perform Transfer of Properties in Vietnam?

 In the complicated situation of the Covid-19 epidemic, the Government continued to implement policies to restrict entry to Vietnam, thus many transactions were canceled or delayed. That has caused many obstacles for foreign individuals and organizations wishing to perform transactions in Vietnam. We refer to the transfer of home ownership for foreign individuals who cannot enter Vietnam to participate in signing transfer contracts and other related transactions i.e. sell or buy an apartment or a house located in Vietnam.

Pursuant to the law on housing, foreign organizations and individuals have the right to own house in Vietnam, before the time limit of the homeownership, the homeowner is entitled to gift or sell their house(s) to entities eligible for the homeownership in Vietnam; if not, their house(s) shall be under ownership of the State. Regarding the house ownership term, if a foreign organization or individual sells or gifted to a domestic organization, household, individual, or a Vietnamese citizen residing overseas, the buyer or recipient will acquire a long-term ownership of the house. If the house is sold to a foreign organization or individual eligible to own housing in Vietnam, the buyer or recipient may own the house for the remaining period. When this period expires, if the owner wishes to have this period extended, the State shall consider granting an extension. The seller or giver must pay tax and other amounts to state budget as prescribed by Vietnam’s law.

In accordance with the law on housing transactions, the seller or transferor of the commercial house sale and purchase contract must meet the following conditions:He/she is the homeowner, or the person permitted and authorized by the homeowner to enter into housing as prescribed in this Law and law on civil; if the agreement of commercial housing is transferred, he must be the buyer for housing of the investor or the transferee of the agreement on housing sale;

If the entity is a person, he must have full civil capacity to enter into transactions in housing as prescribed in law on civil; if the entity is an organization, it must have legal personality.

Article 195 of the 2015 Civil Code stipulates: “A person who is not an owner of property has the right to dispose of property only under the authorization of the owner or according to the provisions of law.”

Clause 2 Article 55 of the Law on Notarization 2014 stipulates: “In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.”

In order to perform the house purchase and sale transaction or in other words to buy a apartment or sell a house in Vietnam, the parties to the house transaction need to agree to make a sale contract or a document on the transfer of a commercial house sale and purchase contract. In case a foreign house owner cannot enter directly to sign a contract, he/she may authorize another individual or organization in Vietnam to perform instead. However, the authorization document needs to be notarized at the competent authority. In case a power of attorney is notarized at a competent agency in a foreign country, it is required to be notarized, legalized, and authenticated in accordance with regulations of the foreigner country (apostille) before that document can be used in Vietnam.

Nguồn: https://antlawyers.vn/library/can-foreigner-authorize-other-person-to-perform-transfer-of-properties-in-vietnam.html

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What Are Rights and Obligations of Foreigners Owning Properties in Vietnam?

 According to the current Vietnamese law, the ownership of houses in Vietnam by foreigners has changed significantly towards more openness. However, home ownership of foreigners and Vietnamese citizens are still different.

Foreign house ownership is allowed in commercial housing construction projects only (i.e., only in newly formed residential areas), not an area of national defense and security purpose. In case of house donation or inheritance of house not subject to this regulation, the foreigner only receives the value of that house.

The foreigners combined may not buy, rent and purchase, receive, inherit and own more than 30% of apartments in an apartment building; or not more than 250 houses of separate houses including villas, row houses in an area whose population is equivalent to a ward-administrative division

In an area whose population is equivalent to that of a ward, if there is a commercial housing construction project for sale or lease-purchase, the quantity of detached houses that may be owned by foreigner is specified below: where the quantity of detached houses of an project is fewer than 2,500, foreigner may own up to 10% of the houses of such project; where there is only one project whose quantity of detached houses is equivalent to 2,500 houses, foreigners may own up to 250 houses of them; where there are two or more projects where the total quantity of detached houses does not exceed 2,500 houses, foreigners may own up to 10% of the houses of each project. In case a house is donated or inherited in excess of the number of houses under this regulation, only the value of that house is entitled.

The foreigners are eligible for the homeownership as agreed in agreements on housing sale, lease purchase, gifting, or inheritance for not more than 50 years from the date of issuance of the Certificate and have can be extended further according to the Government’s regulations if the need arises; house ownership period must be specified in the Certificate.

In case a foreign individual marries a Vietnamese citizen or an overseas Vietnamese, he/she can own a stable, long-term house and has the same rights as a Vietnamese citizen.

The foreign organization are eligible for the homeownership as agreed in agreements on housing sale, lease purchase, gifting, or inheritance for not longer than duration stated in their Certificate of investment, including extension duration, the duration of the homeownership shall be determined from the day on which the organization is granted the Certificate and stated in such Certificate.

In addition, foreign organizations and foreign individuals permitted to enter Vietnam have the same obligations as Vietnamese citizens but must comply with the following provisions:

If the homeowner is a foreign individual, he/she is entitled to lease house for lawful purposes provided that he/she notifies the agency of district in charge of housing where the house is located of housing lease as prescribed in regulations of the Minister of Construction and pays taxes on housing lease as prescribed before leasing houses. If a foreign individual gets married to a Vietnamese citizen or an oversea Vietnamese, he/she qualifies for stable and long-term homeownership and has all rights of homeowner similarly to Vietnamese citizens.

If the homeowner is a foreign organization, its house is/are only provided for their employees but it is not allowed to use their house for lease, offices, or other purposes.

The above are provisions on rights and obligations of foreign organizations and individuals when owning properties in Vietnam. For specific matters, please consult with property, real estate lawyers for legal advice for the property transaction from deposit agreement, house sales and purchase agreement, and registration of ownership with authorities for certificate of land use right, or house owership certificate of to avoid property disputes in Vietnam, where the house ownership, land use rights are restricted for foreigners.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have law firm in Hanoi, law firm in Ho Chi Minh City and law firm in Da Nang.

Nguồn:https://antlawyers.vn/library/what-are-rights-and-obligations-of-foreigners-owning-properties-in-vietnam.html

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How to Buy Apartment in Vietnam

 Real estate, apartment in Vietnam has passed the most difficult period and stabilized. But to satisfy the house demand of 90 million people, it’s need to have many changes in laws. ANT Lawyers will update the proposal of an expert in issue of definite ownership apartment.

As many other countries such as in England, the term to own an apartment of 999 years, but in Vietnam, only land has been assigned by the Government in 2 forms: permanent assignment and definite assignment.

In first method, permanent land assignment fell into residential land, and almost apartments were purchased in market with the “permanent” term.

In the second, lands were assigned within 50 years, the investors continued developing the projects. Some apartment projects in Ho Chi Minh city and Ha Noi belonged to this type. After the investors conducted procedures to transfer definite ownership apartment to permanent ownership apartment. Therefore, actually, the price of apartment will decrease if the form of definite ownership is applied.

Regulating the definite ownership of 50 -70 years for apartment will take advantages in reconstruction and improvement in case of degrading, usage expiry.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Does Tenancy Agreement Need to Be Notarized?

  Housing rental contracts are made and implemented by the lessee and the lessor, including the conditions and responsibilities of the two parties to the rental housing, the terms stated in the contract is right with the prior agreement of the two sides.

Article 492 the Civil Code 2005 provides for the form of lease agreement as follows: “Housing rental contract must be made in writing, if the lease term is six months or above, it must be notarized or certified and must register, unless other cases provided by law.”

Paragraph 2 of Article 122 – Housing Act 2014 provides that, in case the organization donated the house for charity purpose; purchase and lease purchase of houses under state ownership; purchase or lease purchase of social housing, housing for resettlement; housing capital contribution in which one party is organization; case of leasing, lending, allowing for temporary and authorized to manage the house are not required for notarization and authentication of contracts, unless the parties have needs.

In part a, point 28, section III of Resolution No. 52/NQ-CP on the administrative procedures in the field of judicial support, the attached Appendix have clearly stated that the regulation about mandatory notarization of some contracts, including housing lease contracts will be eliminated.

Thus, from the above regulations, we can see that currently, Vietnam law is not compulsory that tenancy agreement have to be notarized. The notarized or not is up to the parties involving in the contract. However, in order to ensure the interests of the parties in the contract, the parties could consider notarized housing lease contracts.

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Conditions for Foreigners When Buying Houses in Vietnam

  With open-door policies and a stable socio-economic situation, Vietnam is one of the countries with great attraction to foreign investors. There are many foreign individuals and organizations come to Vietnam to live and work and a number of foreigners or foreign organizations wish to buy houses or apartments. Many real estate developers also wish to expand the customers base through selling houses and apartments to foreigners in Vietnam.

However, according to current law, foreigners or foreign organizations can buy houses and apartment in Vietnam; and real estate developers could sell houses and apartments in Vietnam but must meet some conditions.

First of all, to be able to buy a house in Vietnam, foreign individuals and organizations must be one of the subjects that can own houses in Vietnam. Specifically, foreign organizations and individuals that are allowed to own houses in Vietnam include: (i) foreign organizations and individuals investing in housing construction under projects in Vietnam; (ii) foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam; (iii) foreigners whom are allowed to enter Vietnam. Accordingly, to be able to buy a house in Vietnam, these subjects must prove that they fully meet the conditions prescribed by law.

Specifically, foreign organizations and individuals investing in housing construction under projects in Vietnam must have an Investment Certificate and have houses built in the project according to regulations. For foreign organizations, they must set up company in Vietnam, have an investment certificate or a document related to being allowed to operate in Vietnam, issued by a competent Vietnamese state agency. Foreign individuals must be subject to permission to enter Vietnam and not be entitled to diplomatic and consular privileges and immunities.

Besides, depending on each different object, the documents proving the object and conditions for owning a house in Vietnam vary. For a foreign individual, s/he must have a valid passport with an entry verification stamp of the exit and entry management agency of Vietnam and not be eligible for special privileges and immunities. On the other hand, for foreign organizations, they must be eligible to own houses and have an Investment Registration Certificate or a document authorized by a competent Vietnamese agency to operate in Vietnam. In addition, these individuals and organizations should note that these documents must be valid at the time of signing the housing transactions.

Therefore, if organizations and individuals meet the above conditions, foreign individuals and organizations can purchase houses in Vietnam. However, it should be noted that foreign individuals can only own houses in Vietnam in the form of apartments or separate houses in an investment project to build commercial housing.

In addition, foreigners are also not allowed to purchase houses in areas that are subject of national defense and security under Vietnamese law. Further, foreign organizations and individuals are also limited in the number of ownership. Accordingly, foreign organizations and individuals are only allowed to own no more than 30% of the total number of apartments in an apartment building, and no more than 10% for an individual housing project of less than 2,500 units.

In general, purchasing houses for foreign individuals and organizations are subject to complicated legal conditions. Therefore, in order to ensure that the purchase of housing in Vietnam is in accordance with the regulations and to limit the risks arising, relevant individuals and organizations need to learn and seek legal advice and support from real estate lawyers in Vietnam.

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Conditions for Foreigners When Buying Houses in Vietnam

 With open-door policies and a stable socio-economic situation, Vietnam is one of the countries with great attraction to foreign investors. There are many foreign individuals and organizations come to Vietnam to live and work and a number of foreigners or foreign organizations wish to buy houses or apartments. Many real estate developers also wish to expand the customers base through selling houses and apartments to foreigners in Vietnam.

However, according to current law, foreigners or foreign organizations can buy houses and apartment in Vietnam; and real estate developers could sell houses and apartments in Vietnam but must meet some conditions.

First of all, to be able to buy a house in Vietnam, foreign individuals and organizations must be one of the subjects that can own houses in Vietnam. Specifically, foreign organizations and individuals that are allowed to own houses in Vietnam include: (i) foreign organizations and individuals investing in housing construction under projects in Vietnam; (ii) foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam; (iii) foreigners whom are allowed to enter Vietnam. Accordingly, to be able to buy a house in Vietnam, these subjects must prove that they fully meet the conditions prescribed by law.

Specifically, foreign organizations and individuals investing in housing construction under projects in Vietnam must have an Investment Certificate and have houses built in the project according to regulations. For foreign organizations, they must set up company in Vietnam, have an investment certificate or a document related to being allowed to operate in Vietnam, issued by a competent Vietnamese state agency. Foreign individuals must be subject to permission to enter Vietnam and not be entitled to diplomatic and consular privileges and immunities.

Besides, depending on each different object, the documents proving the object and conditions for owning a house in Vietnam vary. For a foreign individual, s/he must have a valid passport with an entry verification stamp of the exit and entry management agency of Vietnam and not be eligible for special privileges and immunities. On the other hand, for foreign organizations, they must be eligible to own houses and have an Investment Registration Certificate or a document authorized by a competent Vietnamese agency to operate in Vietnam. In addition, these individuals and organizations should note that these documents must be valid at the time of signing the housing transactions.

Therefore, if organizations and individuals meet the above conditions, foreign individuals and organizations can purchase houses in Vietnam. However, it should be noted that foreign individuals can only own houses in Vietnam in the form of apartments or separate houses in an investment project to build commercial housing.

In addition, foreigners are also not allowed to purchase houses in areas that are subject of national defense and security under Vietnamese law. Further, foreign organizations and individuals are also limited in the number of ownership. Accordingly, foreign organizations and individuals are only allowed to own no more than 30% of the total number of apartments in an apartment building, and no more than 10% for an individual housing project of less than 2,500 units.

In general, purchasing houses for foreign individuals and organizations are subject to complicated legal conditions. Therefore, in order to ensure that the purchase of housing in Vietnam is in accordance with the regulations and to limit the risks arising, relevant individuals and organizations need to learn and seek legal advice and support from real estate lawyers in Vietnam.

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How Foreigners Could Buy Real Estate in Vietnam?

 

Regulations on foreigners owning real estate in Vietnam are regulated in Civil Code 2015, Law on Land 2013, Law on Housing 2014, Decree no. 99/2015/ND- CP on guidelines the Law on Housing and related documents.

For land, foreign individuals are not eligible to use land assigned or leased by the State, recognized land use rights, received transfer of land use rights. However, a foreign-invested enterprise could be allocated or leased land by the State, recognized land use rights, or received a land use right transfer. Foreign-invested enterprises that are assigned land by the State with the collection of land use levies to execute investment projects on the construction of houses for sale or for sale in combination with lease.

For housing, foreign entities eligible for the homeownership in Vietnam include: foreign entities who invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law; foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign-invested funds and branches of foreign banks operating in Vietnam (hereinafter referred to as foreign organization); foreign individuals who are allowed to enter Vietnam.

The foreign entities are eligible for the homeownership in Vietnam if they invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law; or buy, rent and purchase, receive, or inherit commercial housing including apartments and separate houses in the project for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.

Foreign organizations and individuals must have documents proving being the eligible subjects and meeting conditions to own houses in Vietnam. A foreign individual must have an unexpired passport bearing the entry seal of the Vietnam’s immigration authority and not given diplomatic immunity and privileges according to Ordinance on diplomatic immunity and privileges of diplomatic missions, consular offices, and representative authorities of international organizations in Vietnam. Foreign organizations must be subjects of owning houses in Vietnam which have investment registration certificate or a permission issued by a Vietnam’s competent authority for operation in Vietnam which is still unexpired at the time of housing transaction (hereinafter referred to as investment registration certificate).

A foreign entity shall not be granted a Certificate of the house and may only sell or offer it to another entity eligible to own housing in Vietnam in the case being: a foreign organization or individual receives a house as an inheritance or a gift which is located in an area in which foreign entities must not own houses, or the quantity of which exceeds the permissible limits; a foreign organization that does not operate in Vietnam, or a foreign individual who is not permitted to enter Vietnam, receives a house in Vietnam as a gift or an inheritance.

For specific situations, to avoid future dispute in house ownership arisen from the purchase, lease of property, house, land from the state, developer or other seller, or lessor it is important that the client check with property lawyers for eligibility, conditions and other relevant matters.

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Can Foreigner Authorize Other Person to Perform Transfer of Properties in Vietnam?

In the complicated situation of the Covid-19 epidemic, the Government continued to implement policies to restrict entry to Vietnam, thus many transactions were canceled or delayed. That has caused many obstacles for foreign individuals and organizations wishing to perform transactions in Vietnam. We refer to the transfer of home ownership for foreign individuals who cannot enter Vietnam to participate in signing transfer contracts and other related transactions i.e. sell or buy an apartment or a house located in Vietnam.

Pursuant to the law on housing, foreign organizations and individuals have the right to own house in Vietnam, before the time limit of the homeownership, the homeowner is entitled to gift or sell their house(s) to entities eligible for the homeownership in Vietnam; if not, their house(s) shall be under ownership of the State. Regarding the house ownership term, if a foreign organization or individual sells or gifted to a domestic organization, household, individual, or a Vietnamese citizen residing overseas, the buyer or recipient will acquire a long-term ownership of the house. If the house is sold to a foreign organization or individual eligible to own housing in Vietnam, the buyer or recipient may own the house for the remaining period. When this period expires, if the owner wishes to have this period extended, the State shall consider granting an extension. The seller or giver must pay tax and other amounts to state budget as prescribed by Vietnam’s law.

In accordance with the law on housing transactions, the seller or transferor of the commercial house sale and purchase contract must meet the following conditions:

-He/she is the homeowner, or the person permitted and authorized by the homeowner to enter into housing as prescribed in this Law and law on civil; if the agreement of commercial housing is transferred, he must be the buyer for housing of the investor or the transferee of the agreement on housing sale;

- If the entity is a person, he must have full civil capacity to enter into transactions in housing as prescribed in law on civil; if the entity is an organization, it must have legal personality.

Article 195 of the 2015 Civil Code stipulates: “A person who is not an owner of property has the right to dispose of property only under the authorization of the owner or according to the provisions of law.”

Clause 2 Article 55 of the Law on Notarization 2014 stipulates: “In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.”

In order to perform the house purchase and sale transaction or in other words to buy an apartment or sell a house in Vietnam, the parties to the house transaction need to agree to make a sale contract or a document on the transfer of a commercial house sale and purchase contract. In case a foreign house owner cannot enter directly to sign a contract, he/she may authorize another individual or organization in Vietnam to perform instead. However, the authorization document needs to be notarized at the competent authority. In case a power of attorney is notarized at a competent agency in a foreign country, it is required to be notarized, legalized, and authenticated in accordance with regulations of the foreigner country (apostille) before that document can be used in Vietnam.

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