Request compensation for the late handover of the Apartment in Danang

Late handing over of the condotel/apartment is popular in the real estate market in Vietnam. When the deadline came, according to the SPA contract, the seller was not able to hand over the condotel or Apartment to the buyer. This affects the buyer's legitimate rights and interests. Therefore, what should the buyer do to protect their legal rights and interests when this situation occurs?

1. Right to claim compensation when the Investor is late in handing over the Apartment:

Suppose the Investor is late in delivering the condotel or Apartment according to the commitment deadline with the customer. In that case, he or she will be subject to a penalty for violation according to the apartment purchase contract, meaning the commitments that the two parties have agreed on regarding the handover obligation.

According to the provisions of the Real Estate Business Law 2023, Article 23.2 stipulates the obligations of the seller of houses and construction:

– Deliver houses and construction works to the buyer on time, with quality and other agreed conditions; Certificate of land use rights, ownership of houses and other assets attached to land and related documents as agreed in the contract.

– Compensate for damages caused by your fault.

The buyer has the rights according to Article 23 of the Real Estate Business Law 2023. The rights of the buyer of a house or construction project are as follows:

“Article 23. Rights to buy houses and construction tools

1. Require the seller to complete procedures for buying and selling houses and construction works within the time limit agreed in the contract.

2. Require the seller of the house or project to build on time, with quality and other agreed conditions; Certificate of land use rights, ownership of houses and other assets attached to land, and related documents as agreed in the contract.

3. Request the seller to provide warranty and construction as prescribed in Article 20 of this Law.

4. Request the seller to compensate for damages caused by poor delivery of houses, construction works on time, quality, and other commitments in the field.

5. Other rights in the contract.”

In case the consulting homeowner accepts or does not resolve the compensation claim, the buyer can sue a competent court to request a settlement. Decree 139/2017/ND-CP banned action by the Government with new contents regulating the handling of administrative violations in construction investment activities; exploitation, conversion regime, trading of construction materials, production and trading of construction materials; management of technical infrastructure projects; Real estate business, housing development, home and company use management.

– Fine from 40,000,000 VND to 50,000,000 VND for slow handover of the project according to the approved process.

– Fine from 50,000,000 VND to 60,000,000 VND for acts such as:

+ Failure to establish a contract or establishing a real estate business contract that does not fully include the main contents as prescribed; not proven or authenticated according to regulations;

+ Failure to provide information about the consulting construction process or use of application funds before request; Buying is not allowed; the lessee is allowed to check the actual progress at the construction site;

– Fine from 20,000,000 VND to 30,000,000 VND for investors, owners, or project management and operation units that commit the following acts: not handing over, handing over late, or handing over without proper procedures, maintaining and building browsers for owners and managers of browser users;

As analyzed above, the Investor's progress is slow, so the approval time in the construction permit will be handled according to Decree 139/2017/ND-CP. As for being a private owner who is behind schedule, the purchase contract with the customer will be subject to penalties for violations according to the home purchase contract that both parties have committed to agreeing to. If there is no other reason to delay the handover of the house, the Investor has violated its obligations in the contract, so the customer has the right to request the Investor to properly perform its obligations.

In case the landlord confirms or does not resolve the customer's regular compensation claim, the customer can file a lawsuit with the competent Court to request the Court to consider and resolve. The processing for Petition is the facility whose processing authority is validated by the slow process. It is on the buyer's side based on co-processing.

2. Procedures for claiming compensation for the late handover of real estate by the Investor:

Real estate purchase and sale is essentially an asset purchase and sale contract governed by the 2015 Civil Code. Accordingly, the terms of contract performance are agreed upon by the parties; the seller is only allowed to hand over the property before and after the deadline if the buyer agrees to the terms of Article 434 of the 2015 Civil Code. Thus, the time that is considered a late handover of the house and land is the end of the house handover period, which is land according to consent or according to the provisions of law, but the seller has not yet fulfilled the obligation to hand over.

This issue is also specifically regulated in Article 353 of the 2015 Civil Code. Accordingly, delayed implementation of the obligation to hand over real estate is a task that has not yet been performed or is only partially performed within the deadline duty is over. The seller who violates the obligation to hand over the real estate is subject to the following financial regimes:

– First, the seller violated the sale contract by not handing over the property on time as agreed. The party who is late in handing over must compensate for all damages caused by the breach of contract obligations causing consensus in the contract. Damage is determined to include both physical damage and mental damage according to Article 360, Article 361, and Article 419 of the 2015 Civil Code.

Physical damages are identified as genuine physical complications, including loss of property, reasonable costs to prevent, limit, or settle the damages, actual lost income, or reduced danger. Mental harm is mental complexity caused by an attack on a subject's life, health, honor, personal property, reputation, and other personal interests.

– Second, the party handing over land late must be subject to penalties for violations according to the signed contract. The fine for violations is unlimited, and the parties agree to this, according to Article 418 of the 2015 Civil Code. In addition, based on Point c, Clause 3, Article 57 of Decree 139/2017/ND-CP, organizations and individuals conducting business Real estate service businesses will be subject to financial and administrative regimes and fines from VND 250,000,000 to VND 300,000,000 for acts of developing and constructing real estate business projects or construction investment projects. Housing construction is progressing slowly and has been approved by the facility for authentication.

3. Notes when initiating a compensation claim:

First, when there is a request to the Court with jurisdiction to resolve, the buyer should request to resolve both issues, including a request to hand over the house and land and compensation for damages due to breach of contract, to save time and costs.

Second, transparent evidence

In case of initiating a claim for damages, in addition to the documents according to legal procedures, the buyer must also prove the actual damage caused by the seller's delay in handing over the house and land, specifically:

– The rental contract to prove the seller's violation of the obligation to complete the transaction on time. The buyer does not have a house according to the project and must rent a house, causing the buyer to suffer a material loss;

– Credit lease contract or loan contract to prove the damage because the seller violates the obligation to hand over the house and land on time, making the loan period longer, actually increasing the amount of interest that the buyer must pay;

– House purchase and sale contract to prove agreement to buy, sell, and hand over house and land between the parties;

Other attached documents and evidence (if any) are also needed.

Third, the authority to resolve requests to hand over real estate and compensate for damages.

According to the regulations in Area 3, Article 20 stipulates that disputes belong to the Court; Point A, Clause 1, Article 35 stipulates the jurisdiction of district-level People's Courts, and Point A, Clause 1, Article 39 stipulates the Court's jurisdiction according to the territory of the 2015 Civil Procedure Code, then the competent authority shall resolve the matter. Civil matters are district-level People's Courts where the defendant resides or the parties agree.

4. Procedures for resolving disputes in Court:

Step 1: Prepare documents and related documents:

(i) Petition (The content of the Petition must be according to Article 189 of the 2015 Civil Procedure Code).

(ii) Evidence and accompanying documents to prove that your legitimate rights and interests have been violated;

(iii) The certified copy of the passport;

(iv) Other related documents.

The petition and related documents can be submitted at the Court in person or by mail.

Step 2: The Court receives the Petition

When receiving an application, the Court will issue a receiving confirmation of the application.

Within 03 working days from the date of receiving the application, the Court assigns a Judge to consider initiating the application.

Within 05 working days from the date of analysis, the Judge must consider the triggering event. In case the conditions are met, the Court will issue the Notification for Court’s fee in advance.

Step 3: Paying the Court’s fee in advance

Within 07 days from the date of receiving the Court's notice of fee in advance, the Buyer must pay the fee in advance and receive the receipt.

Step 4: Assigning a judge to resolve, conduct mediation and prepare for trials.

According to the laws of Vietnam, the Court process takes 4-6 months. If there are any issues, the Judge can extend the process.

 

DB Legal Lawyers is a leading Law Firm specializing in Litigation in Vietnam.

Our team of knowledgeable and experienced attorneys can help you quickly and peacefully resolve your concerns. We can also offer you individualized, thorough legal counsel and assistance at every stage of the procedure.

 

This information contained herein is of a general nature and is intended to provide updates on the Laws for information purposes only. DB Legal shall not be liable for any use or application of the information for any business purpose.

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