Consulting on conditions for transferring real estate projects

Conditions for transferring real estate projects are a key factor in the process of developing and restructuring the Vietnamese real estate market. The Law on Real Estate Business 2023 has created a solid legal corridor, opening up great opportunities for investors and businesses in this field. Please follow the following article by Long Phan to get detailed information about the conditions, procedures and important notes during the real estate project transfer process.

Regulations on real estate projects

A real estate project is an investment project to build a project for housing businesses, construction projects, and land use rights that already have technical infrastructure. Project types include investment projects to build housing, urban areas, rural residential areas and works with diverse functions.

According to Clause 3, Article 3 of the Law on Real Estate Business 2023, real estate projects are approved by competent state agencies. These projects may include housing, urban areas, rural residential areas, educational, medical, sports, cultural, office, commercial, service, tourism, accommodation, industrial and mixed works.

Real estate project transfer is defined in Clause 7, Article 3 of the Law on Real Estate Business 2023. This is the investor transferring all or part of the project, including rights, obligations, responsibilities and Legal benefits for the transferee through the contract.

Conditions for transferring real estate projects

Pursuant to Article 40 of the Law on Real Estate Business 2023, it stipulates conditions for real estate projects to be transferred. Specifically:

• The project has been decided on investment policy, approved investment policy, or approved investment by a competent state agency; has been selected or recognized as an investor in cases where the project must carry out investor recognition procedures;
• The project has detailed planning approved according to the provisions of construction law and urban planning law;
• The project and part of the transferred project have completed compensation and resettlement support. In the case of transferring the entire infrastructure construction investment project, the corresponding technical infrastructure works must be completed according to the approved progress, design, and detailed planning according to the provisions of the law on construction, the law on urban planning and the content of the project has been approved according to the provisions of the law on construction;
• The land use rights of the project, the transferred project part are not in dispute that are being notified, accepted, resolved by the competent authority or are in dispute but have been resolved by the competent authority by a legally effective judgment, decision or ruling; not be distrained to ensure execution of judgment; not subject to transaction bans by law; not in the case of being suspended or temporarily suspended from trading according to the provisions of law;
• The project is not suspended, terminated or does not have a land recovery decision from a competent state agency; In case the transferred project or part of the project is sanctioned for administrative violations, the investor must completely comply with the decision on sanctioning administrative violations of the competent state agency in accordance with the law on handling administrative violations;
• In case the project is mortgaged to ensure the performance of obligations according to the provisions of law, the mortgage must be released;
• The project is still within its implementation period;
• For real estate projects that transfer part of the project, it is also necessary to ensure that the construction items or the use and business purposes of the construction works of the transferred project part can be independent of the project. Other project parts in real estate projects.

Note: In addition to the above conditions, when transferring all or part of a real estate project, it is also necessary to meet other conditions according to the provisions of investment law and relevant laws.

Procedures for transferring real estate projects

Documents need to be prepared

Documents for investors transferring real estate projects are specifically regulated in Clause 3, Article 10 of Decree 96/2024/ND-CP. Include:

• Document from the project investor requesting permission to transfer all or part of the real estate project;
• Decide on investment policy or approve investment policy or approve investment of real estate project;
• Documents of competent state agencies on investor selection and investor selection; decision or document recognizing the investor in case the project must carry out investor recognition procedures;
• Decision approving the detailed planning or general area planning of the real estate project;
• Land documents include: Decisions on land allocation, land lease, and permission to change land use purposes to implement projects from competent state agencies according to the provisions of land law. Minutes of handover of land for project implementation on the ground from the competent state agency to the project investor in accordance with the provisions of land law;
• In the case of a mortgaged real estate project or project portion, there must be documents showing that the mortgage has been released according to the provisions of law;
• Acceptance documents according to the provisions of construction law on completion of the investment in the construction of corresponding technical infrastructure works according to progress, design, detailed planning and approved project content for the project. In the case of transferring the entire infrastructure construction investment project;
• Confirmation from the tax authority that the project investor has fulfilled the project’s financial obligations regarding land to the State and documents showing that the investor has paid fees and charges related to land (if any);
• For state-owned enterprises transferring all or part of a real estate project, there must be documents proving compliance with legal regulations on management and use of state capital invested in production and business at the enterprise;
• Report on the real estate project implementation process up to the time of transfer;
• Agreement on the transfer of all or part of the real estate project between the transferor and the transferee (if any).

Implementation process

According to Article 42 of the Law on Real Estate Business 2023, procedures for transferring real estate projects are divided according to decision authority. Specifically, the transfer process for each authority will be carried out as follows:

Case 1: Transfer of all or part of a real estate project under the Prime Minister’s decision to permit transfer as prescribed in Clause 1, Article 42 of the Law on Real Estate Business 2023:

• Step 1: The project investor sends the application dossier to the Provincial People’s Committee where the project is located or the provincial state management agency on real estate business authorized by the Provincial People’s Committee;
• Step 2: Within 45 days from the date of receipt of complete and valid documents, the Provincial People’s Committee is responsible for obtaining opinions from the Ministry of Construction and relevant ministries, branches and agencies, and organizing appraisal, and submit to the Prime Minister for consideration and decision to allow the transfer; In case the real estate project does not qualify for transfer, the receiving agency must send a written notice clearly stating the reason to the project investor;
• Step 3: After the Prime Minister’s decision to allow the transfer, the transferor and transferee of the project must sign a transfer contract and hand over the project.

Case 2: Transfer of all or part of a real estate project under the authority of the Provincial People’s Committee to decide to allow transfer as prescribed in Clause 2, Article 42 of the Law on Real Estate Business 2023:

• Step 1: The investor sends the application dossier to the Provincial People’s Committee where the project is located or the provincial state management agency on real estate business authorized by the Provincial People’s Committee;
• Step 2: Within 30 days from the date of receiving complete and valid documents, the Provincial People’s Committee is responsible for collecting opinions from relevant agencies, organizing appraisal and issuing a decision to allow transfer cede; In case a project or part of a real estate project does not qualify for transfer, the agency receiving the application must send a written notice clearly stating the reason to the project investor;
• Step 3: After the decision to allow transfer from the Provincial People’s Committee, the transferor and transferee of the project must sign a contract to transfer and hand over the project.

Case 3: The transferee of all or part of the project specified in Clause 2, Article 41 of the Law on Real Estate Business 2023 is an economic organization with foreign investment capital as specified in Clause 4, Article 10 of the Law on Real Estate Business 2023, after there is a decision to allow transfer from a competent state agency and the parties have signed a transfer contract, land procedures will be carried out in accordance with the provisions of land law.

Consulting on conditions and supporting the transfer of professional real estate projects

To ensure the real estate project transfer process goes smoothly and effectively, you can use consulting services at specialized units to receive professional support from legal experts. With a team of experienced real estate professionals, Long Phan will advise and support customers comprehensively from the stage of preparing documents to completing transfer procedures. Services that Long Phan Company provides include:

• Comprehensive legal advice on conditions and feasibility of project transfer.
• Support in preparing documents and completing necessary legal documents.
• Representing customers to carry out procedures and work with state agencies.
• Monitor the document processing process and return results to customers
• Consulting on solutions to problems that arise.

Transferring real estate projects is a great opportunity to optimize resources and promote market development. With a clear legal framework from the Law on Real Estate Business 2023, investors and businesses can confidently conduct transfer transactions transparently and effectively. If you still have questions during the transfer process, please contact Long Phan via hotline 0906735386 for advice and professional support, ensuring your transfer transaction is successful and brings the highest value.