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Q&A Legal basis for issues related to real estate in Vietnam with foreign elements (Part 1)

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Q&A Legal basis for issues related to real estate in Vietnam with foreign elements (Part 1)
Q&A Legal basis for issues related to real estate in Vietnam with foreign elements (Part 1)


1.      Are foreign businesses allowed to rent land to build apartments for sale?

Question: If an enterprise (or individual) with 100% foreign capital is allowed to do real estate business in Vietnam? If you want to rent land from the State (or private) to build apartments, office buildings, villas for sale and lease, are foreign enterprises allowed or have restrictions?

Answer:

Clause 3, Article 11 of the Law on Real Estate Business 2014 states that: "Foreign-invested enterprises may conduct real estate business in the following forms:

- Rent a house or building to rent it back.

- For land allocated by the State, investors may build houses for sale, lease or lease-purchase.

- For land leased by the State, investors may build houses for lease; investment in construction of houses and construction works other than houses for sale, lease or lease purchase.

- Receive transfer of all or part of the real estate project of the investor to build houses and construction works for sale, lease or lease purchase.

- For leased land in industrial parks, industrial clusters, export processing zones, hi-tech parks and economic zones, to invest in the construction of houses and construction works for business purposes according to the land use purposes. "

Under the above provisions, enterprises with 100% foreign investment capital may still conduct real estate business in Vietnam in the above-mentioned forms. However, enterprises must meet the conditions stipulated in Clause 1, Article 10 of the Law on Real Estate Business 2014 as well as the provisions of land law and other relevant laws.

2.      How can foreign enterprises lease land to develop projects?

Question: Being a 100% foreign-invested company and currently working on a clean pig breeding project, DE-HEUS Co., Ltd. wants to use a land owned by a Vietnamese individual (with a Certificate of Use Rights). .

After the agreement, the landed individual has agreed to receive the reimbursement and hand over the land to the company. So, the company wants to ask, in this case, how is the procedure for land acquisition and leasing done and how is the time taken?

Answer:

According to Article 39 of Decree No. 43/2014 / ND-CP dated May 15, 2014 of the Government, Article 169 and Clause 1, Article 191 of the Land Law 2013, foreign-invested enterprises are not allowed to transfer land use rights and not receiving investment capital are the value of agricultural land use rights.

If the pig breeding project is clean   in accordance with the annual district land use plan approved by the State agency and concurrently under the concentrated agricultural, forestry, aquatic and marine product production and processing project, eligible under Point d, Clause 3, Article 62 of the Land Law 2013, the State recovers, compensates and clearance land to lease land in accordance with regulations.

The order and procedures for land lease will follow Article 68 of Decree No. 43/2014 / ND-CP. The order and procedures for land acquisition comply with Article 69 of the 2013 Land Law.

3.      Do you have real estate business when you do not have a representative office in Vietnam?

Question: I am working for a Korean company but this company does not have a representative office in Vietnam. Please ask, if my company wants to buy real estate (specifically condotel apartment) then can it be sold or given to foreigners?

Answer:

Clause 1, Article 10 of the Law on Real Estate Business states that: in order to be entitled to business in real estate, organizations and individuals must establish enterprises or cooperatives and have legal capital of VND 20 billion or more , except for the case specified in Clause 2 of this Article.

In comparison with the above provisions, in order to be allowed to conduct real estate business in Vietnam, foreign organizations and individuals must establish enterprises in Vietnam in accordance with Vietnamese law. At the same time, individuals and businesses can only trade real estate in the forms prescribed in Clause 3, Article 11 of the Law on Real Estate Business. The purchase, lease, hire purchase of real estate is also specified in Clause 2, Article 14 of the Law on Real Estate Business.

4.      If the husband is a foreigner, will he be co-owner with his wife in the red book?

Question: My husband is a foreigner, we have registered marriage in Vietnam. We are currently in need of buying individual houses and land, not under construction projects.

Please ask, if my husband and I have the right to own individual houses? If yes, can my husband get a joint name on the certificate of house and land ownership?

Answer:

Point b, Clause 2, Article 159 of the 2014 Housing Law states: "Foreign organizations and individuals are allowed to own houses in Vietnam through the following forms: Buying, renting, receiving and receiving Inheritance of commercial houses including condominiums and separate houses in investment projects on housing construction, except for areas of national defense and security under the Government's regulations. "

In Clause 1, Article 75 of Decree 99/2015 / ND-CP dated October 20, 2015 of the Government also stated: "Foreign organizations and individuals can only own houses (including shared apartments residential and separate houses) in investment projects on construction of commercial houses, except for areas of national defense and security under the provisions of Vietnamese law. "

As stipulated in Article 33 of the Law on Marriage and Family in 2014: "The common property of husband and wife includes assets created by spouses, income from labor, production and business activities, and profits. , income arising from private property and other lawful income during the marriage period, the land use right acquired by the husband and wife after the marriage is the common property of the couple, except for the spouse. own inheritance, donated exclusively or obtained through private property transactions. "

Comparing with the case of Ms. Ngoc Uyen: she is married to a foreigner, a foreign national, so in case she and her husband use money as a common property during the marriage period, buying a house in Vietnam is outside. To ensure conditions for Vietnamese people to buy houses in Vietnam, they must comply with conditions for foreigners to buy and own houses in Vietnam.

Thus, if you want to own a house, your spouse is only allowed to own a house or apartment building in a commercial housing investment project.

In addition, because Ms. Ngoc Uyen's husband is a foreigner who has not been allowed by Vietnamese law to buy individual houses outside of the investment project to build commercial houses, she and her husband do not qualify for the above name. Certificate of land use rights, ownership of houses and other assets attached to land.

If you want to stay in a private house that is not part of a construction project, Ms. Uyen can use her own property (as defined in Article 43 of the Marriage and Family Law), including assets before marriage, redundant assets. separately, given separately during the marriage period to buy. With this house, Ms. Uyen will be named in the certificate of land use rights, ownership of houses and other assets attached to the land and exercise the ownership of this house as the residence of her husband and wife.

5.      Do I lose house ownership in Vietnam when I no longer have Vietnamese nationality?

Question: I still have Vietnamese nationality but am currently residing in the United States. Before I came here to live, I still had a house in Vietnam.

I am currently applying for US citizenship. At that time, I had to quit Vietnamese nationality, so did I lose ownership of the house in Vietnam? How do I not lose the ownership of the house?

Answer:

When he became a US citizen and renounced Vietnamese nationality, he would become a US citizen. At that time, as a foreign individual, he had ownership of houses in Vietnam in accordance with the 2014 Housing Law.

He is a homeowner in Vietnam before becoming a US citizen. Pursuant to the Law on Vietnamese Nationality and its guiding documents, the relinquishment of Vietnamese nationality does not stop his ownership of houses and land. Therefore, he will not lose ownership of the house in Vietnam when he became a US citizen.

When he could not directly manage the house in Vietnam, he could authorize another person. This person will represent him to carry out transactions related to houses and land and exercise the rights and obligations of the owner, using houses and land.

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