Investors are not allowed to push home buyers to pay the guarantee fee.

Minister of Construction Nguyen Thanh Nghi has just signed a document to receive and explain the opinions of National Assembly deputies on the draft revised Law on Real Estate Business to the Government.

One of the notable issues is the guarantee in the sale and lease-purchase of future housing. The Ministry of Construction said that many opinions agree with the review opinion of the Economic Committee, the regulation on guarantee is necessary to ensure the rights of buyers.

However, these opinions also suggest that it is necessary to specify the scope of the guarantee, have a mechanism to ensure safety and certainty at a reasonable level to reduce the minimum cost that homebuyers have to pay. Thereby, limiting the impact on real estate prices, and at the same time, flexible regulations are needed because not all transactions require a guarantee.

The investor is responsible for paying the credit institution's guarantee fee.

In response to the above comments, the Ministry of Construction - the drafting agency - revised the following direction: Guaranteeing the sale and lease-purchase of future housing is the responsibility of the investor, but the right of the customer.

In case the customer refuses his rights, the investor does not have to fulfill this responsibility according to the regulations instead of the strict regulations that require implementation as in the current law and the draft submitted to the National Assembly.

Accordingly, the adopted regulation still maintains the orientation of the old policy to ensure protection for customers who are the weaker party in future real estate transactions. However, it is not rigid, hinders the right to negotiate, and causes difficulties for the parties in the transaction.

Specifically, it is necessary to clarify the financial obligations of the investor to the buyer or lessee of the house when the investor fails to hand over the house as committed to the customer in the contract for the purchase or lease of the house to be formed in the future, including the amount of money the investor has received in advance from the customer and other amounts (if any) stated in the contract.

Supplementing regulations in the letter of guarantee issued by the credit institution guaranteeing the issuance to the buyer or hire-purchaser of future housing must specifically state the validity period.

At the same time, it is clarified that the investor is the party using the guarantee service of the credit institution. Therefore, the investor is responsible for paying this service fee and cannot push the responsibility for paying this service fee onto the customer.

Regarding the issue of deposits in the purchase and sale of future housing, there are currently two options. The Ministry of Construction has chosen the option of regulating that real estate project investors receive deposits from customers when the housing and construction works meet the conditions to be put into operation.

The 2020 Law on Real Estate Business does not regulate the management of capital mobilization through the form of deposit to hold a place. Many real estate project investors have taken advantage of this legal gap to mobilize capital through various forms of signing contracts and types of agreements, including receiving deposits from customers with a commitment to sell houses in the project while the houses in the project do not have enough conditions to be put into business according to regulations.

Many complex disputes have arisen from capital mobilization contracts and deposit contracts signed when the houses are not yet qualified for commercial operation, deeply affecting the real estate market. The adverse consequences and losses often fall on the customers.

Ngoc Vy

Source