Real Estate

We offer a full range of real estate services in areas including financing, acquisitions and disposals, tax efficiency, land use, environmental law, planning and development, construction and leasing. Our clients benefit from our significant experience in orchestrating high value, long-term projects that involve complex structuring, facilitating negotiations, ensuring tax efficiency, navigating legal and regulatory issues and, when necessary, litigating on their behalf.

Apolat Legal Estate Practice has been involved in numerous real estate finance, private equity, and development transactions, advising on:

  • Joint ventures
  • Mergers and acquisitions of real estate based businesses 
  • Project developments
  • Land use

Our real estate practitioners have a combination of technical property expertise, local market knowledge, industry insight and global experience.

KEY CONTACT

Pham Hong Manh

Senior Partner

Pham Thi Thoa

Senior Partner

RELATED ARTICLES

Apolat Legal_Legal retainer service

Business activities of enterprises are always dependent on and regulated by relevant laws. For effective operation, enterprises need to well control legal risks arising from their operations. Large enterprises tend to build a legal team with good lawyers to help them apply for permits, provide legal advice and resolve labour disputes during their operation.

However, not all businesses have the financial resources to build their own legal department. For businesses that do not have their own legal team, legal retainer service of separate law firms will be the smart choice.

Understanding this issue, Apolat Legal offers businesses a comprehensive legal consulting service at a reasonable fee. Each business choosing the legal retainer service of Apolat Legal will be supported by a consistent team during the time of using service. By this way, Apolat Legal can clearly understand the clients and help the clients save time and avoid providing duplicated information. In addition, businesses only have to pay a fixed monthly fee to receive helpful advice from Apolat Legal for all day-to-day legal needs of business.

Legal retainer service of Apolat Legal includes but not limited to the followings works:

  • Answering, consulting on provisions, and policies of law and giving legal solutions for each specific matter according to the Client’s requirements in multiple practice areas such as investment, construction, real estate, bidding, enterprise administration, banking, security, insurance, commerce, labor, sales and other areas relating to the Client’s business operation (excluding financial and tax advice).
  • Examining, reviewing and confirming the legality of documentations which the Client have drafted or implemented in respect of business operation, giving legal advice for such documentations as required by the Client.
  • Supporting the Client in preparation of all documentation for contract negotiations or parleys (if requires).
  • Supporting the Client in drafting documentations relating to business transactions between the Client and any third party.
  • Consulting with the Client about business discussions, negotiations, parleys, claims, disputes or lawsuits with any third party or any competent State agency relating to the Client’s business operation. (Scope of consultancy excludes representing for the Client in implementation of specific matters or of claims at competent State agencies or of litigation procedures at Court or Arbitration).
  • Consulting with the Client about general solutions relating to each specific claim, dispute or lawsuit.
  • In case any Client’s partner needs our legal support, then, as the Client’s request or that of such partner, we shall consider whether providing our legal services for such partner or not; and if we choose providing, we shall be committed to not causing any damage to the Client or any conflict of rights and legal interests between the Client and such partner.
  • Supporting and consulting the Client on drafting the Charter, Internal Working Regulation, regulations relating to enterprise organization, management and administration and other essential documents during Client’s business operation.

By professional services, thoroughness and experiences in various legal fields, Apolat Legal is the trusted partner of all businesses.

Read more...

Whether Foreign-Invested Enterprises Are Allowed To Receive A Mortgage Of Real Estate To Secure Loans Or Not?

Mortgaging real estate including land use rights, houses, apartments is one of the basic rights of real estate users/ owners, and is also one of the types of security for performance of obligations has high security. However, whether the rights of the mortgage are made or not depends on mortgagees, because real estate is a property that is always strictly managed and has certain restrictions on the subjects who use/ own them.

Accordingly, to know whether foreign-invested enterprises that do not have the lending function as credit institutions, banks are allowed to receive the mortgage of real estate from Vietnamese individuals to secure loans between foreign-invested enterprises and Vietnamese individuals or not, it is necessary to know the following Vietnamese laws.

1| For the real estate which is land-use rights

According to point g Clause 1 Article 179 of Land law 2013, individuals that use agricultural land allocated by the State within land use quotas, are allocated land with land use levy or leased with full one-off rental payment for the entire lease period, have land use rights recognized by the State, or obtain land through exchange, transfer, inheritance or donation, have the following rights to mortgage land-use rights at (i) credit institutions which are licensed to operate in Vietnam, or at (ii) other economic organizations, or (iii) individuals in accordance with law.

However, according to Clause 27 Article 3 of Land Law 2013, “Economic organization means an enterprise, a cooperative or another economic organization as prescribed by the civil law, excluding foreign-invested enterprises.”. Therefore, “other economic organizations” mentioned at Point g Clause 1 Article 179 of Land Law 2013 should be interpreted as not including foreign-invested enterprises.

Therefore, the foreign-invested enterprises cannot receive the mortgage of land-use rights to ensure the loans between Vietnamese individuals and foreign-invested enterprises.

2| For the real estate which is houses, apartments

According to Clause 2 Article 144 of Law on Housing 2014:

“Article 144. Mortgagors and mortgagees 

…. 

2. The homeowner is an individual entitled to mortgage his/her house at a credit institution, or an economic organization operating in Vietnam or individuals as prescribed.”

individuals who own houses/apartments may mortgage houses/ apartments for the following subjects:

  • credit institutions operating in Vietnam;
  • economic organizations operating in Vietnam; or
  • individuals.

Described on Clause 3 Article 119 and point b Clause 1 Article 159 of Law on Housing 2014, Foreign-invested enterprises will only be allowed to receive the housing mortgage if they are eligible to own houses in Vietnam according to provisions of Law on Housing 2014.

According to Clause 2 Article 159 of Law on Housing 2014:

“Article 159. Foreign entities eligible for the homeownership in Vietnam and forms of the homeownership in Vietnam relating to foreign entities

….

  1. The foreign entities eligible for the homeownership in Vietnam if they:

a) Invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law;

b) 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-invested enterprises may only own houses in Vietnam through the following forms:

  • Invest in project-based housing construction in Vietnam;
  • 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.

Thus, the foreign-invested enterprises cannot own houses in Vietnam by receiving the mortgage. 

Therefore, the foreign-invested enterprises cannot receive the mortgage of the ownership of houses or apartments to ensure the loans between Vietnamese individuals and foreign-invested enterprises.

With the above analysis, we can see that foreign-invested enterprises cannot receive the mortgage of real estate from Vietnamese individuals to secure loans between foreign-invested enterprises and Vietnamese individuals. Vietnamese law stipulates restrictions on the right to mortgage real estate of Vietnamese individuals and the right to receive the mortgage real estate for foreign-invested enterprises is to limit the ownership of the real estate in Vietnam for foreign entities. 

 

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

Read more...

Legal basis and procedures for buying residential houses in Vietnam for foreigners

Although not being allowed to own land in Vietnam in accordance with the Land Law, foreign organizations and individuals (hereinafter referred to as foreign entities) can legally own properties attached to it.

In this article, we would like to present the legal basis and procedures for foreign entities to buy and own residential houses in Vietnam.

Legal basis:

First of all, pursuant to Clause 3, Article 7 of the Housing Law of 2014, foreign entities who satisfy the conditions under Clause 1 Article 159 of this law shall have the right to own house in Vietnam, specifically:

  • Foreign entities who invest in project-based housing construction in Vietnam presented by the Investment Registration Certificates (IRC) and having houses built in the project;
  • Foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign-invested funds and branches of foreign banks operating in Vietnam presented by IRC or other documents related to the permission to operate in Vietnam;
  • Foreign individuals who are allowed to enter Vietnam and are not granted diplomatic immunity and privileges as prescribed under Clause 1 Article 74 of Decree No. 99/2015/ND-CP.

Besides, according to Clause 2 Article 159 of the Housing Law, foreign entities should be aware of the legal forms of home ownership for foreigners, particularly:

  • Invest in project-based housing construction in Vietnam;
  • Buy, rent and purchase, receive, or inherit commercial houses including apartments and separate houses in the projects for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.

An important note for this form is that foreigners can only buy, rent and purchase, receive or inherit no more than 30% of of apartments in an apartment building or no more than 250 houses regarding separate houses including villas, row houses and detached houses in an area whose population is equivalent to a ward-administrative division[1]. The duration of home ownership for a foreign individual is 50 years and can be extended up to 50 years since the expiration date of the first-time ownership duration. Meanwhile, for a foreign organization, the duration of ownership is no longer than that written in the investment registration certificate of the organization, including extension itself[2].  

If a foreign individual is married to a Vietnamese citizen, he/she, in a stable and long period of time, may own a house and fully has rights relating to the house like Vietnamese such as renting, giving, donating, inheriting,[3] ….

Procedures for buying houses in Vietnam:

To obtain the certificate of home ownership in Vietnam, the following documents need preparing:
1. An application for a certificate of home ownership and land use right written in Vietnamese and English in prescribed form.
2. Documents of the seller’s home ownership rights:
a) In case of buying apartments in commercial housing development projects of real estate business enterprises (including cases of buying apartments built in the future and available apartments)

  • Decision on approving commercial housing development projects of competent authorities;
  • Land lease contract or land allocation decision or land use right certificate issued by the competent authority to the enterprise;
  • A drawing of the plan of the apartment for sale;
  • The handover minutes of the apartment attached with the regulations on management of apartment use issued by the enterprise (applicable to the purchase of available apartments).

b) In case of buying, receiving inheritance, receiving gifts for apartments in commercial housing development projects of individual (apartments available)

  • Certificate of house ownership and land use rights in accordance with the Housing Law and Decree No. 60/ ND- CP dated 5/7/1994 on housing ownership and land use rights in urban areas, market or certificate of house ownership under Decree No. 95/2005/ ND-CP dated 15/7/2005 on granting house ownership certificates and construction works ownership;
  • Certificate of land use right with house recognition on the land granted in accordance with the Land Law 2003.

3. Original contract of sale, purchase, donation of houses or papers on house inheritance in accordance with Vietnamese law.
4. A certified copy of a foreign passport and one of the prescribed documents.
5. The certificate of the real estate trading floor about the apartment has been traded on the floor in accordance with the law on real estate business, if buying an apartment of a real estate business.
6. Tax and registration fee receipts according to law provisions.

Fees and taxes obligations

When buying and owning houses in Vietnam, foreigners are subject to the same budget remittances, taxes, fees and charges as Vietnamese, including:

  • Land use fees;
  • Value added tax (VAT): 10% of the selling price.
  • There are also other fees such as: cadastral mapping and administrative fee services, measurement fees, etc.

Registration, cadastral mapping and administrative and apartment measurement fees are often included in the contract, which requires the parties to incur the procedures for granting ownership certificates. 

 

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

 

[1] Clause 3 and 4 Article 76 of Decree No. 99/2015/ND-CP

[2] Points c) and d), Clauses 1, Article 161 of Housing Law of 2014

[3] Paragraph 2, Point c), Clause 1, Article 161 of Housing Law of 2014

Read more...

    Contact Apolat Legal