Through the system of receiving and responding to recommendations of businesses, Mr. Nguyen Thanh An (in Ho Chi Minh City) requests the authorities to answer the appointment of the investor of the commercial housing project. when having the legal right to use residential land in accordance with the Law on Housing 2014.

According to Mr. Nguyen Thanh An, Clause 2, Article 18 of Decree 99/2015 / ND-CP guiding the Housing Law stipulates that the organization is appointed to be the investor of a commercial housing project when having the right to use legal residential land use, in accordance with the housing construction plannings, plannings, land use plans approved by competent agencies. Based on this regulation, Mr. An said that it is necessary to review the following contents:

If according to the subdivision planning 1/2000 or detailed plan 1/500 of the approved land, the State only allows (change the purpose of land use) residential land up to 4,000m2, the enterprise has enough area, residential land for housing construction according to approved plannings and projects. The technical and social infrastructure of the project will be built on the remaining land (6,000m2) which is not residential land because it cannot be transferred to residential land due to planning. If it is required that the enterprise's land plot must be completely residential, it is not necessary.

If the company is required to have enough 10,000m2 of residential land as guided by the Ministry of Construction, based on the 1/2000 plan or the 1/500 detailed plan of the above land plot, the residential land area of ​​6,000m2 is considered. Residential land is not suitable for housing construction planning as prescribed in Clause 2, Article 18 of Decree 99/2015 / ND-CP because this 6,000m2 of residential land is used for the construction of infrastructure works. the project's engineering and social infrastructure, not to be used for the project's housing construction.

According to Mr. An, the regulations that organizations, households and individuals have the legal right to use residential land, in accordance with the housing construction planning in Clause 2, Article 18 of Decree 99/2015 / ND- CP is understood to be based on the architectural planning criteria (1/2000 or 1/500) of the land for the approved project, if the organization has enough legal residential land to build the entire house. In the project, it is designated as the investor of the housing development project, the remaining area of ​​the land plot for the project is not necessarily residential land.

Through the receiving and responding system to the recommendations of businesses, Mr. An asked the authorities to consider his opinion and provide specific instructions for him and other similar businesses to have a basis for implementation.

Regarding this issue, The Ministry of Construction has the following opinions:

As a recommendation did not specify the legal basis of the project to build commercial houses on a land area of ​​10,000 square meters (in which the residential land area under the approved planning is 4,000 square meters), so regarding Mr. An's recommendation, the Ministry of Construction commented as follows:

In case of receipt of the transfer of an entire real estate project or a portion of real estate project, the provisions of Articles 48 thru 53 of the Law on Real Estate Business shall be complied with. In this case, the enterprise that receives the transfer of the whole project or a part of the project is the investor of the project, the project part receives the transfer, regardless of the ratio of residential land area of ​​the project or part of the project. receive transfer.

In case the enterprise is not required to receive transfer of all or a portion of real estate project, if the enterprise uses the residential land area under the legal use right or receives the legal transfer of residential land use right for the whole area 10,000m2 of land for commercial housing construction shall be appointed as the investor of a commercial housing project in accordance with Articles 22 and 23 of the Law on Housing (the law on housing does not provide for what is the project's residential land rate, the project investor will be appointed).

Therefore, in case an enterprise has a land use right certificate for a land plot to implement a commercial housing construction project under an approved planning, a total area of ​​10,000 square meters, of which residential land area is 4,000 square meters If 6.000m2 is not residential land, the enterprise is not subject to the designation of project investor as prescribed in Articles 22 and 23 of the 2014 Law on Housing.

Relating to the use of land to carry out general projects (including commercial housing projects) without receiving transfer of all or a portion of real estate projects in accordance with the Law Trading in real estate, not required to use residential land under the right to use law or receiving transfer of land use right of legal to build commercial houses in accordance with the Law on Housing. Access to land to implement investment projects in general, to carry out commercial housing projects in particular in accordance with the law on land (including access to land through joint ventures). Enterprises currently using land apply for a change of land use purpose to implement the project, the enterprise can negotiate by itself to receive the land use right other than residential land, then apply for the change of land use purpose to residential land).

In these cases, Mr. Nguyen Thanh An is requested to ask in writing the Ministry of NaturalResources and Environment for specific instructions according to his / her authority.