What are solutions to limit investors 'circling the law' from raising capital?
The Ministry of Construction has just issued a written response to a question from National Assembly deputy Nguyen Thi Le (Ho Chi Minh City National Assembly Delegation) about the situation of illegally mobilizing capital for real estate without meeting legal conditions.
According to National Assembly deputy Nguyen Thi Le, there is currently a situation where the investor illegally mobilizes capital from homebuyers before completing the prescribed procedures or the investor after completing the project (handing over the apartment) but not yet disbursed the bank loan for investment and construction of the previous project, leading to the home buyer not being granted a Certificate of Ownership.
Delegate Nguyen Thi Le asked, did the Ministry of Construction have any measures (including administrative and criminal handling measures) to limit the mistakes of the project investor? And in the coming period to prepare to amend the Law on Housing, are there any proposals for strict regulations in controlling and handling violations so that investors cannot make mistakes?
The Ministry of Construction responded to National Assembly delegate Nguyen Thi Le as follows:
The real estate market in recent years has made strong progress, contributing to promoting the country's socio-economic development, meeting the needs of businesses and people.
However, besides that, the market also revealed a number of shortcomings and limitations including the fact that investors mobilize capital from home buyers when housing projects are not eligible to raise capital; The investor mortgages the project and real estate in the project at a credit institution, although the mortgage has not been released, it still organizes capital mobilization for the purpose of selling houses in the form of a capital contribution investment contract. This leads to the problem of not being able to follow the procedures and not be able to hand over the certificate of house ownership and residential land use right to the buyer.
The shortcomings in the investors' circumvention of the law on capital mobilization when they do not meet the legal conditions have many causes, some of which are directly affected such as: The current law has not been completed and synchronized to ensure that it is completely prevented from circumventing the law to raise capital in real estate transactions; the capacity of real estate project investors has not been well screened; legal knowledge and compliance by organizations and individuals doing real estate business are not high, with a profit-driven orientation; information about the real estate market is not clear; the inspection, examination, law dissemination and supervision of the compliance with legal regulations in real estate business activities have not yet met the requirements of real estate market management.
Remove obstacles and mishandle to protect the market and protect people's assets
Regarding solutions to limit the law on capital mobilization and control so that the real estate market is safe and stable:
Over the past time, functional agencies of the Ministry of Construction and local Departments of Construction have implemented the task of inspecting and inspecting real estate business activities, handling violations. The Ministry of Construction has organized delegations to inspect the implementation of legal policies on housing and real estate market in their localities according to their assigned State management functions and tasks. Through inspection and examination, in addition to handling violations, at the same time, competent authorities have also discovered a number of shortcomings and limitations in real estate market management and proposed localities to overcome. The Ministry of Construction has developed and submitted to the Government for promulgation Decree No. 02/2022/ND-CP dated January 6, 2022 detailing the implementation of a number of articles of the Law on Real Estate Business, which adds regulations on model contracts in real estate transactions and Decree No. 44/2022/ND-CP dated June 29, 2022 on construction, management and use of housing information systems and the real estate market to ensure market transparency.
Currently, in Decree No. 16/2022/ND-CP dated January 28, 2022 of the Government on sanctioning of administrative violations in construction, there are regulations on administrative violations, sanctioning forms and remedial measures in the real estate business.
In Decree No. 99/2015/ND-CP dated October 20, 2015 of the Government detailing and guiding the implementation of a number of articles of the Law on Housing, housing project investors are not allowed to apply the form of capital mobilization specified in Decree No. 99/2015/ND-CP or other forms of capital mobilization for distribution of housing products or for priority registration, deposit, enjoyment of the right to buy houses or to distribution of land use rights in the project to the party to be mobilized capital.
The Ministry of Construction has developed and submitted to the Prime Minister for promulgation Directive No. 13/CT-TTg dated August 29, 2022 on a number of solutions to promote the safe, healthy and sustainable development of the real estate market; in which the Prime Minister requested the ministries, branches and localities to implement many solutions to contribute to stabilizing the real estate market, real estate prices to ensure a safe, sustainable and healthy development of the market; reviewing legal provisions to solve immediate and long-term problems in the direction of building a healthy, appropriate and effective policy tool to ensure interoperability, safety and certainty between the market capital with the real estate market, diversifying capital sources for the real estate market; strengthen supervision, inspection and audit to remove obstacles, handle violations to protect the market, protect people's assets, not legalize violations, and at the same time objectively assess and identify cause, there is a mechanism to remove the practical problems posed.
Focus on building a group of regulations on housing and real estate business
Currently, the Ministry of Construction is presiding over the development of an amended and supplemented Housing Law and an amended and supplemented Law on Real Estate Business. In the drafts of the above amended and supplemented Laws, attention has been paid to building a group of regulations in order to:
Synchronous and comprehensive regulations between creating favorable conditions and mechanisms while also ensuring strict management and supervision of compliance with legal regulations in capital mobilization, using capital mobilized by real estate project investors; regulations on forms of capital mobilization, management and use of mobilized capital of real estate project investors.
Regulations on application of security measures in future real estate purchase and sale transactions; strict and practical regulations on the conditions of real estate put into business.
Regulations on the responsibilities of the project investor, the seller, the lease-purchaser, or the lessor of real estate in complying with the law and ensuring the interests of customers; responsible for the application, signing and performance of real estate business contracts in accordance with the law.
Regulations on raising the conditions, responsibilities and capacity of organizations and individuals operating and practicing real estate brokerage.
Advanced regulations on the responsibility of publicizing real estate information of organizations and individuals doing real estate business. Building a unified and interconnected real estate market information system from central to local levels; link and share information and data between industries, fields and agencies related to state management in the field of housing and real estate market.
Completing the system of legal regulations on state management of the real estate market. Building a system of mechanisms and measures of the State to regulate the real estate market; ensure that the State manages and regulates the real estate market in a timely and effective manner.
Fully and specifically stipulate the responsibilities of agencies in carrying out inspection and examination in the field of state management of the real estate market. Improve the role and efficiency of inspection, examination and handling of administrative violations in real estate business activities to enhance the effectiveness of preventing, and limiting violations.
By: Government newspaper/Translator: LeAnh-Bizic
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