Amendment of regulations on managing apartment maintenance fund

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On March 26th, 2021, the Government issued Decree 30/2021/ND-CP amending and supplementing a number of articles of Decree 99 (“Decree 30”). Compared with Decree 99, Decree 30 has the following notable changes:

Firstly, on transfering maintenance fund for the common area of ​​multi-owner apartment buildings

Article 36 of Decree 99, which is amended and supplemented in Decree 30, the maintenance fund of the common area of ​​the apartment building remains unchanged at 2%; but additionally stipulates that for each housing construction investment project with an apartment building, the investor must set up an account as prescribed in this Clause to manage the maintenance expenses of the apartment building of that project; after opening an account, the investor must notify (in writing) the Department of Construction where the project is located about the account name, opened account number, name of the credit institution where the account is opened and the deposit term.

As for the apartment area, the other area that the investor retains and has not sold or has not yet sold, has not been leased out by the time of transfering and putting the apartment building into use, is subject to pay maintenance fund of 2%. according to the provisions of the Law on Housing 2014, the investor must transfer this amount to the established account. If the investor fails to pay the maintenance fee or does not transfer the maintenance fund as prescribed, the investor will be administratively sanctioned, and be forced to hand over according to the provisions of Article 37 of Decree 99, which is amended and supplemented in Decree 30. In addition, on a case-by-case basis, the investor will also be examined for penal liability in accordance to the provisions in Penal code.

Decree 30 also stipulates that the Investor is not allowed to request a credit institution to deduct the funds that the parties have paid into the account to use for any other purpose before handing it over to the Management Board of the apartment building.

If during the time when maintenance fund have not been transfered to the Management Board of the apartment building, maintenance of items and equipment under joint ownership of the apartment building has expired as prescribed, then the investor will be responsible for the maintenance of these items and equipment, but must comply with the work maintenance plan and process established in accordance with Law on Construction.

When transfering the maintenance fund to the Management Board of the apartment building, the investor will be refunded the fund used for this maintenance but must have a specific report enclosed with the plan and process of the maintenance expenses have been made, there must be invoices and vouchers proving the expenses for this maintenance.

Previously, Decree 99 only stipulates that after transfering maintenance fund to the Management Board of the apartment building, the investor must report (in writing) to the Department of Construction where the apartment building is located for monitoring. Decree 30 requires the investor to also have the responsibility to close the account set up in accordance with the law and to notify (in writing) the Department of Construction where the apartment building is located for monitoring.

 

Secondly, about the order and procedures for building local housing development programs and plans

Previously, Decree 99 only generally stipulates that on the basis of the local housing development program approved by the provincial People’s Committee, the Department of Construction directly implements or hires a consulting unit to coordinate with relevant agencies. Local stakeholders develop a 05-year and annual housing development plan to submit to the Provincial People’s Committee for approval.

District People’s Committees and relevant local agencies are responsible for providing housing-related information at the request of the Department of Construction, coordinating with the Department of Construction and the consulting unit to construct a development plan. housing development.

On the basis of the proposed housing development plan of the Department of Construction, the Provincial People’s Committee considers, approves and organizes the implementation of the plan. Up to now, Clause 1, Article 1 of Decree 30 has clearly stipulated the time, order and procedures for adjusting housing development programs and plans.

Thirdly, about obtaining appraisal opinions of state agencies in charge of housing for investment projects on housing construction.

Article 9 of Decree 99 only stipulates the agency to collect appraisal opinions, up to now, Clause 3, Article 1 of Decree 30 has further specified the content of collecting appraisal opinions of the State management agency on housing, including: : Name of project investor; project name in accordance with Law on Housing; Investment objectives and forms; Location, size of land area for housing construction of the project; The suitability of the housing construction investment project with the detailed planning (for cases where the detailed planning is approved) or the subdivision planning (for the case where there is no approved detailed planning).

In case the detailed planning or zoning planning has not been approved by competent authorities, the conformity of the housing construction investment project with the general planning shall be assessed; The conformity of the proposals in the contents of the housing construction investment project with the housing development program and plan have already been approved by the competent authority; Preliminary suitability of housing product structure (type of housing, housing segment, product business form for each type of housing); In case it is a project to build commercial houses or urban areas with houses, there must be an estimated land area for construction of social houses; The uniformity of the preliminary investment divergence plan, the division of the component projects (if any) and the preliminary construction investment plan, management of the technical and social infrastructure systems related to the project.

Lastly, on the procedure for coercive transfer of maintenance fund for the common area of ​​the apartment building

Article 37 of Decree 99, as amended and supplemented in Decree 30, clearly stipulates the procedure for coercive transfering of maintenance fund from the investor’s business account in case the investor has no money or has money but does not sufficient to transfer and in case there is no funding to transfer which has not been previously regulated.

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