Choosing to buy a completed apartment is a way for buyers to immediately meet housing needs and limit legal risks when buying apartments formed in the future.
However, the apartment has been completed and can be moved in immediately; However, buyers still need to distinguish whether they are buying an apartment in the following cases to note the corresponding legal issues:
The first case: the owner of the apartment has received the apartment and wants to transfer it
According to the provisions of Article 26 of the Law on Housing 2014 , within 50 days from the date of handing over or receiving full payment as agreed, the Investor must carry out procedures to apply for a Certificate of Use Right. land, ownership of houses and other land-attached assets for such apartments to the owner (hereinafter referred to as “GCC”).
Therefore, before dealing with the owner of the apartment, the buyer needs to determine if the owner has been granted a certificate. This is the premise for the buyer to determine the necessary procedures to establish ownership of the apartment, including the following 03 situations:
Firstly , if the owner has been granted a certificate, the buyer and the owner must carry out the procedures for registration of house fluctuations to transfer the ownership of the apartment to the buyer.
Second , if in the process of processing the procedure for granting the certificate to the owner, the buyer should wait for the owner to be granted the certificate, then establish a transaction to buy the apartment. After that, the two sides carried out the procedures for registration of housing changes as above.
Third , if the owner has not been granted a certificate, the transaction to buy the apartment from them is a transaction of transferring the commercial housing purchase and sale contract. The two parties carry out the procedures for the transfer of the commercial housing purchase and sale contract; from which the Investor submits the application for the Certificate of Origin.
The second case: the apartment has been completed but the owner has not received the handover
In case the owner has not yet received the handover of the apartment but transfers it to another person, the transaction between the two parties is a transaction of transferring a house purchase and sale contract formed in the future and will exist in the following 02 situations: :
Firstly, the owner has fulfilled all obligations to the Investor. In this situation, the buyer will not have to inherit the owner’s financial obligations to the Owner. When the transaction is established, the buyer will become the owner of the apartment in the relationship with the Investor.
Second , the owner still has unfulfilled obligations to the Investor (usually, not yet fully paid the payables under the apartment purchase contract). In this situation, the buyer should be aware of the contract transfer price agreed with the owner; Because, the buyer will have to inherit the obligations to the Owner that the owner has not performed.
In both cases, both parties must carry out the procedures for transferring the future house purchase and sale contract like the procedure for transferring the commercial house contract (hereinafter referred to as the procedure for transferring the house purchase contract). housing sales).
As a general rule , all transactions of buying, selling or transferring a house sale and purchase contract between a buyer and an apartment owner must be made into a contract and notarized. In addition, except for the case of buying back an apartment that has been granted a certificate, the transfer contract of the house sale and purchase contract must be certified by the Investor.
The order and procedures for transferring a house purchase and sale contract shall comply with the guidance in Articles 33 and 34 of Circular 19/2016/TT-BXD .
All of the above problems can be represented according to the diagram below:
By: Trong Nhan (Law Library)
