Pursuant to Clause 1, Article 3 of the Real Estate Business Law 2023, real estate business is defined as an activity aimed at generating profit through investing capital to create housing, constructions, land use rights with technical infrastructure in real estate projects for sale, transfer; lease, sublease, lease-purchase of housing, constructions; lease, sublease of land use rights with technical infrastructure in real estate projects; transfer of real estate projects; and real estate services. Real estate services, as defined in Clause 2, Article 3 of the Real Estate Business Law 2023 include: real estate brokerage, real estate consultancy, and real estate management.
When conducting the aforementioned real estate business activities, enterprises must meet the following conditions and follow these procedures:
1. Conditions and procedures for business registration of real estate enterprises
Organizations and individuals conducting real estate business must establish an enterprise in accordance with the enterprise law or establish a cooperative, a cooperative union in accordance with the cooperative law, and have a business line in real estate, except for two cases: (i) Individuals conducting small-scale real estate business are not required to establish a real estate business but must declare and pay taxes in accordance with the law and (ii) Organizations and individuals selling houses, constructions, floor areas in constructions not for business purposes or selling, leasing, lease-purchase of houses, constructions, floor areas in constructions below the small-scale level are not subject to the provisions of the Real Estate Business Law 2023 but must declare and pay taxes in accordance with the law.
According to Article 17 of the Enterprise Law 2020, organizations and individuals have the right to establish and manage enterprises in Vietnam in accordance with the provisions of the Enterprise Law; except for organizations and individuals who are not entitled to establish and manage enterprises in Vietnam, including:
a) State agencies and people's armed forces units using state property to establish a business for the sole profit of their agency or unit;
b) Cadres, civil servants, and public employees as prescribed by the Law on Cadres, Civil Servants, and Public Employees;
c) Officers, non-commissioned officers, professional soldiers, workers, and defense officials in agencies and units of the Vietnam People's Army; professional officers, non-commissioned officers, and public security workers in agencies and units of the Vietnam People's Public Security, except for those authorized to represent and manage the state's capital contribution in enterprises or to manage state-owned enterprises;
d) Leaders and management personnel in enterprises wholly owned by the State, except those authorized to represent and manage the state's capital contribution in other enterprises;
đ) Minors; persons with limited civil capacity; persons with no civil capacity; persons with difficulties in cognition and control of behavior; organizations without legal personality;
e) Individuals who are being prosecuted for criminal offenses, are under arrest, are serving a prison sentence, are undergoing compulsory rehabilitation or compulsory education, or are prohibited by the court from holding a position, practicing a profession or engaging in certain activities; other cases as prescribed by the Bankruptcy Law and the Law on Prevention and Control of Corruption.
In cases where the Business Registration Agency requires, the person registering to establish an enterprise must submit a criminal record certificate to the Business Registration Agency;
g) The organization is a commercial legal entity prohibited from conducting business and engaging in certain activities as stipulated by the Penal Code.
Regarding charter capital requirements: Charter capital is understood as the total value of assets contributed or committed to be contributed by company members or company owners when establishing a limited liability company or partnership; it is the total face value of shares sold or registered to be purchased when establishing a joint-stock company. Previously, Clause 1, Article 8 of Law on Real Estate Trading 2006, as guided by Article 3 of Decree 153/2007/ND-CP, required real estate businesses and cooperatives to have legal capital of 6 billion VND. From January 1, 2015, Law on Real Estate Trading 2014 took effect, replacing Law on Real Estate Trading 2006. Clause 1, Article 10 required real estate businesses to have legal capital not less than 20 billion VND, and according to the guidance in Article 4 of Decree 76/2015/ND-CP, this legal capital was determined based on the charter capital of the enterprise or cooperative, as stipulated by the laws on enterprises and cooperatives. Enterprises and cooperatives were not required to register for confirmation of their legal capital. As of January 1, 2021, this legal capital requirement was abolished according to the amendment in Point a, Clause 2, Article 75 of the 2020 Investment Law. Law on Real Estate Trading 2023, effective from August 1, 2024, also does not stipulate legal capital or charter capital requirements for real estate businesses.
The conditions regarding the business name, company headquarters, and the legal representative of the real estate business are carried out in accordance with the general provisions of Law on Enterprises 2020.
In addition, real estate businesses must meet other specific conditions as stipulated in Clause 2, Article 9 of Law on Real Estate Trading 2023, specifically:
Firstly, they must not be under a period of prohibition from real estate business operations, temporary suspension, or cessation of activities according to a court judgment, or a decision from a competent state authority.
Secondly, they must ensure the ratio of credit debt and corporate bond debt to their owner's equity. According to Article 5 of Decree No. 96/2023/ND-CP, real estate businesses, based on their owner's equity, investment plans, and business strategies, will decide on borrowing from credit institutions, issuing corporate bonds, as well as ensuring the ratio of credit debt and corporate bond debt to their owner's equity as follows:
a) Compliance with the company's financial safety ratios and adherence to legal regulations on credit and corporate bonds.
b) In cases where real estate businesses borrow from credit institutions or issue corporate bonds to fund real estate projects approved by competent state authorities as the project investor, the total outstanding loans from credit institutions, corporate bonds, and the company's equity for each project must not exceed 100% of the project's total investment capital.
c) The total ratio of outstanding loans at credit institutions and outstanding corporate bonds to implement the project must not exceed 04 times the equity of the enterprise for each real estate project with land use scale of less than 20 hectares. and no more than 5.67 times the enterprise's equity for each real estate project with land use scale of 20 hectares or more.
Third, a real estate business undertaking a real estate project must have equity capital of no less than 20% of the total investment capital for projects with a land use scale of less than 20 hectares, and no less than 15% of the total investment capital for projects with a land use scale of 20 hectares or more, and must ensure the ability to mobilize capital to implement the investment project. In cases where the real estate business is simultaneously undertaking multiple projects, it must have sufficient equity capital allocated to ensure the above-stated ratios for each project in order to implement all such projects.
In this context, the equity of real estate businesses is determined according to Clause 1, Article 6 of Decree 96/2024/ND-CP, which includes:
a) The results from the financial statements or the audited equity report for the year. If there are no financial statements or audited equity reports available for the year, then the results from the financial statements or audited equity report of the preceding year, in accordance with regulations on corporate law, auditing law, and accounting law, shall be used.
b) For businesses established and operating for less than 12 months, equity is determined based on the contributed charter capital, as stipulated by laws on corporations.
The total investment capital for real estate projects is determined according to the regulations under laws on investment.
Additionally, under Law on Enterprises 2020, businesses include various types such as single-member limited liability companies, multi-member limited liability companies, joint-stock companies, partnerships, and private enterprises. Real estate business law does not restrict any specific type of business from engaging in real estate activities. Therefore, individuals and organizations can establish any of the above-mentioned business types or form cooperatives or cooperative unions with real estate as their business sector, and conduct real estate operations provided they meet the outlined conditions.
Procedures for registering a business are carried out as follows:
- For limited liability companies:
- Definition: A multi-member limited liability company is a business with between 2 and 50 members, consisting of individuals or organizations. Members are responsible for the company's debts and other financial obligations within the limits of the capital they have contributed, except as otherwise provided by law. A member’s capital contribution can only be transferred according to the provisions of Articles 52 and 53 of Law on Enterprises 2020[1].
- Dossier for the establishment of a limited liability company: According to Article 21 of Law on Enterprises 2020, the dossier includes:
a. A business registration application;
b. The company charter;
c. A list of members;
d. Copies of the following documents: Legal documents of individuals for members who are individuals and the legal representative of the company; Legal documents of organizations for members who are organizations, and a letter of authorization for their authorized representative; Legal documents of the individual authorized to represent the member organization. For members who are foreign organizations, a legalized copy of the organization's legal documents is required; Investment registration certificate for foreign investors, in accordance with the Law on Investment.
- For joint-stock companies:
Definition: A joint-stock company is a business in which charter capital is divided into equal parts called shares. Shareholders can be organizations or individuals, with a minimum of three shareholders and no maximum limit. Shareholders are only liable for the company's debts and other financial obligations within the scope of their contributed capital. The profits that shareholders receive from owning shares are called dividends. A joint-stock company can raise capital by issuing shares.
- Dossier for registering a joint-stock company: According to Article 22 of Law on Enterprises 2020, the dossier includes:
- Business registration application
- The company charter;
- A list of founding shareholders and a list of shareholders who are foreign investors;
- Copies of the following documents: Legal documents of individuals for founding shareholders and shareholders who are foreign individual investors, and the legal representative of the company; Legal documents of organizations for shareholders that are organizations, and a letter of authorization for their authorized representative; Legal documents of the individual authorized to represent the founding shareholders and shareholders who are foreign organizations. For foreign organization shareholders, a legalized copy of the organization's legal documents is required; Investment registration certificate for foreign investors, in accordance with the Law on Investment.
- For sole proprietorships:
Definition: A sole proprietorship is a business owned by an individual who is personally liable for all activities of the business with their entire assets[2].
Dossier for registering a sole proprietorship: According to the provisions of Article 19 of the 2020 Law on Enterprises, the dossier includes:
a. A business registration application;
b. A copy of the legal documents of the individual who is the owner of the sole proprietorship.
- For partnerships:
Definition: A partnership is a business that must have at least two members who are co-owners of the company, jointly conducting business under a common name (hereinafter referred to as general partners). In addition to general partners, the company may have contributing members. General partners are individuals who are personally liable for the company's obligations with their entire assets. Contributing members can be organizations or individuals and are only liable for the company's debts within the scope of the capital they have committed to contribute[3].
Dossier for registering a partnership: According to Article 20 of the 2020 Law on Enterprises, the dossier includes:
a. A business registration application;
b. The company charter;
c. A list of members;
d. Copies of the legal documents of individual members;
e. A copy of the investment registration certificate for foreign investors, in accordance with the Law on Investment.
Regarding the procedures for business registration: According to Article 26 of the 2020 Law on Enterprises.
Step 1: The founder of the business or an authorized representative must register the business with the Business Registration Authority through one of the following three methods:
- Direct registration at the Business Registration Authority;
- Business registration via postal service;
- Business registration through an electronic information network.
Step 2: Processing the dossier
Within three working days from the date of receipt of the dossier, the Business Registration Authority is responsible for reviewing the validity of the business registration application and issuing the business registration certificate. If the dossier is found to be invalid, the Business Registration Authority must notify the business founder in writing of the necessary amendments or supplements. In the event of a rejection of the business registration, the authority must inform the business founder in writing, clearly stating the reasons for the refusal.
For cooperatives and cooperative unions:
Definition:
+ A cooperative is a legal entity formed by at least five official members who voluntarily come together to cooperate and support one another in production and business activities. The cooperative aims to meet the common economic, cultural, and social needs of its members, contributing to the sustainable development of the community. It operates with principles of autonomy, accountability, equality, and democracy[4].
+ A cooperative union is a legal entity formed by at least three officially recognized cooperatives that voluntarily come together to cooperate and support one another in production and business activities. The cooperative union aims to expand the scale of production and business, enhance market participation capabilities, and contribute to the sustainable development of the community. It operates with principles of autonomy, accountability, equality, and democracy[5].
Dossier for registering a cooperative or cooperative union: According to Article 42 of Law on Cooperatives 2023, the dossier includes:
+ A business registration application;
+ The charter;
+ A resolution from the founding meeting;
+ A list of official members and contributing affiliated members;
+ A list and personal identification numbers of the legal representative who is a Vietnamese citizen; a list and copies of the legal documents of the legal representative who is a foreign national.
+ A copy of the investment registration certificate as stipulated in point b, clause 1, Article 30 of Law on Cooperatives 2023.
+ A copy of the investment registration certificate is required for projects establishing cooperatives or cooperative unions in cases where the cooperative or cooperative union is founded by individuals who are foreign investors or economic organizations with foreign investment, in accordance with investment law.
- Procedures for registering a cooperative or cooperative union: According to the provisions of Article 42 of Law on Cooperatives 2023.
+ Step 1: The authorized person for registering the establishment of a cooperative or union of cooperatives shall proceed with the registration procedures at the business registration authority where the head office is located.
+ Step 2: Processing the application: Within 03 working days from the date of receipt of the application, the business registration authority is responsible for reviewing the validity of the registration documents and issuing the Certificate of Cooperative Registration. If the application is not valid, the business registration authority must notify in writing the content that needs to be amended or supplemented to the authorized person for registering the cooperative or union of cooperatives. In case of rejection, it must notify in writing and clearly state the reasons.
2. Cases of real estate businesses not required business registration:
According to the provisions of Clauses 3 and 4, Article 9 of Law on Real Estate Trading 2023, the following cases are exempt from business registration:
+ Individuals engaged in small-scale real estate business are not required to establish a real estate business enterprise but must declare and pay taxes according to the law.
+ Organizations and individuals selling houses, construction works, or parts of construction floor areas in construction works that are not intended for business purposes, or selling, leasing, or leasing-purchasing houses, construction works, or parts of construction floor areas in construction works under small-scale levels, are not subject to the regulations of the Law on Real Estate Trading but must declare and pay taxes according to the law. If individuals sell or lease-purchase houses, construction works, or parts of construction floor areas in construction works, they must also notarize or authenticate the transaction according to Clause 5, Article 44 of Law on Real Estate Trading 2023. Clause 5, Article 44 of Law on Real Estate Trading 2023 stipulates that contracts for the sale, lease-purchase of houses, construction works, or parts of construction floor areas where individuals are parties to the transaction must be notarized or authenticated.
Determining small-scale real estate business, non-business purposes, and small-scale thresholds:
+ Legal basis: Article 7 of Decree No. 96/2024/ND-CP provides detailed regulations for implementing certain provisions of the Law on Real Estate Trading.
+ Accordingly, individuals engaged in small-scale real estate business must meet the following requirements:
They are not required to create an investment project as per the law on construction and housing.
The value of a single contract does not exceed 300 billion VND, and the number of transactions does not exceed 10 times in a year. If there is only 01 transaction in a year, the value is not counted.
Organizations and individuals selling houses, construction works, or parts of construction floor areas in construction works not intended for business purposes or selling, leasing, or lease-purchasing houses, construction works, or parts of construction floor areas under small-scale thresholds include:
Individuals not required to create investment projects as per the law on construction and housing.
Organizations where a single contract value does not exceed 300 billion VND, and the number of transactions does not exceed 10 times in a year. If there is only 01 transaction in a year, the value is not counted.
3. Conditions and procedures for establishing a real estate service business enterprise:
According to Clause 5, Article 9 of Law on Real Estate Trading 2023, organizations and individuals engaged in real estate business must establish an enterprise under the law on enterprises or establish a cooperative or union of cooperatives under the law on cooperatives (commonly referred to as real estate service business enterprises). They must meet the conditions set out by the Law on Real Estate Trading. Specifically, the conditions for each type of real estate service are as follows:
3.1. Conditions, procedures, and formalities for establishing a Real Estate Exchange:
a. Conditions for establishing a Real Estate Exchange:
Legal basis: Clause 5, Article 9, and Clauses 1 and 2, Article 54 the 2024 Law on Real Estate Trading.
Requirements to establish a real estate brokerage
+ Organizations, and individuals conducting real estate brokerage services must establish a real estate business.
+ The name of a real estate brokerage business established by an organization or individual shall be chosen in accordance with the Enterprise Law and must include the phrase "real estate brokerage", and must not be identical to or confusingly similar to the name of another real estate brokerage business that has already been registered.
Requirements for real estate brokerage managers (Legal basis: Clause 1, Article 55 of the Real Estate Business Law 2023; Clause 24, Article 4 of the Enterprise Law 2020)
Including the following conditions:
+ Having the right to manage an enterprise in Vietnam as prescribed by the Enterprise Law. According to the 2020 Enterprise Law, an enterprise manager is a person who manages a private enterprise or a company, including a sole proprietor, a general partner, a Chairman of the Members' Council, a member of the Members' Council, a Chairman of the Company, a Chairman of the Board of Directors, a member of the Board of Directors, a Director or a General Director, and any other person holding a management position as prescribed in the company's charter.
+ Having completed the training course on real estate brokerage management and operation, I have been awarded a certificate of completion for the real estate brokerage management and operation course by the training institution.
b. Procedures for establishing a real estate brokerage:
Legal basis: Article 9 and Article 54 of the Real Estate Business Law 2023; Article 14 of Decree No. 96/2024/ND-CP detailing certain provisions of the Real Estate Business Law.
Application file for establishing a real estate brokerage
+ The real estate brokerage is a limited liability company. The required documents include: a business registration application; the company's articles of association; a list of members; certified copies of personal legal documents of the members; and a certified copy of the investment registration certificate for foreign investors as prescribed by the Investment Law.
+ The real estate brokerage is a joint-stock company. The required documents include: a business registration application; the company's articles of association; a list of founding shareholders and foreign investors; certified copies of: personal legal documents of individual founding shareholders and foreign individual investors, including legal representatives; legal documents of corporate shareholders and a document appointing a legal representative; personal legal documents of the legal representative appointed by individual founding shareholders and foreign individual investors who are organizations; and the investment registration certificate for foreign investors as prescribed by the Investment Law.
Procedures for establishing a real estate brokerage:
Legal basis: Article 26 of the Enterprise Law 2020.
+ Step 1: Submit the application to the Business Registration Office where the business is headquartered.
+ Step 2: After receiving the business registration application, the Business Registration Office will issue a receipt to the applicant. The Business Registration Office shall issue the business registration certificate within 03 working days from the date of receipt of a complete application. In case the application is incomplete or the requested business name does not comply with the regulations, the Business Registration Office shall notify the business founder or the enterprise in writing of the necessary amendments within 03 working days from the date of receipt of the application. If the registration for the establishment of a real estate brokerage is rejected, a written notification stating the reasons shall be sent to the founder.
After its establishment, a real estate brokerage must submit an application for a business license before it can operate.
c. Procedures and formalities for registering the operation of a real estate brokerage
Legal basis: Article 54 and Article 14 of Decree No. 96/2024/ND-CP detailing certain provisions of the Real Estate Business Law.
Application file for real estate brokerage business:
- Application form for real estate brokerage business operation as prescribed in Appendix XVII of Decree No. 96/2024/ND-CP detailing certain provisions of the Real Estate Business Law.
- Business registration certificate as prescribed in Clause 5, Article 9 of the Real Estate Business Law 2023.
- Document proving the right to use the real estate brokerage office.
+ A copy of the certificate of completion of the real estate brokerage management course for the real estate brokerage manager.
- List of real estate brokers with a real estate brokerage license
Procedures for registering a real estate brokerage:
- Step 1: Apply to the provincial real estate business management agency where the real estate brokerage is headquartered.
- Step 2: Within 15 working days from the date of receipt of a complete application, the provincial real estate business management agency shall review the application and issue a business license for the real estate brokerage (as per the form attached in Appendix XVII of Decree No. 96/2024/ND-CP detailing the Real Estate Business Law), or if rejected, shall notify in writing the reasons for such rejection.
- Step 3: After granting the business license, the provincial real estate business management agency reports to the Ministry of Construction to post the real estate brokerage's information on the Ministry's electronic portal. The information includes: the name of the real estate brokerage, the name of the business establishing the brokerage, the full name of the brokerage manager, and the brokerage's address and contact number.
3.2. Requirements for real estate brokerage services
a. Requirements for organizations and individuals providing real estate brokerage services
Legal basis: Article 61 of the Real Estate Business Law 2020.
Requirements for organizations, individuals providing real estate brokerage services:
- Must establish a real estate business as prescribed in Clause 5, Article 9 of the Real Estate Business Law 2023.
- Must have an operating regulation for real estate brokerage services.
- Must possess physical and technical facilities that meet the operational requirements stipulated in Government regulations. According to Article 18 of Decree No. 96/2024/ND-CP, detailing provisions of the Real Estate Business Law, real estate brokerage businesses must have physical and technical facilities suitable for their operations.
+ Physical facilities refer to the location or headquarters where a business operates; it must have a stable name and business address for at least 12 months.
+ Technical infrastructure is a system of machinery and equipment used for business operations.
Requires at least one individual who is licensed as a real estate broker.
Before operating a real estate brokerage service, the brokerage business must submit its information to the provincial state management agency for real estate where the business is established, to be published in the housing and real estate market information system as regulated by the Real Estate Business Law.
Requirements for individuals practicing real estate brokerage.
Holds a real estate broker's license.
Must be employed by a real estate trading service business or a real estate brokerage service business.
3.3. Requirements for real estate consultancy and management activities
Legal basis: Article 67 of the Real Estate Business Law 2023
Requirements for organizations, individuals providing real estate consultancy and management services include:
Organizations, individuals providing real estate consultancy and management services must establish a real estate business enterprise as prescribed in Clause 5, Article 9 of the Real Estate Business Law 2023. In the case of managing apartment buildings or mixed-use buildings with residential components, they must meet the full requirements stipulated by the housing law.
Before commencing business operations, enterprises providing real estate consultancy and management services must submit information about the enterprise to the provincial-level state management agency for real estate business for posting on the housing and real estate market information system, as prescribed by the Real Estate Business Law.
[1] Clause 1 Article 74 Law on Enterprises 2020
[2] Article 188 Law on Enterprises 2020
[3] Article 177 Law on Enterprises 2020
[4] Clause 7, Article 4 of the Law on Cooperatives 2023
[5] Clause 8, Article 4 of the Law on Cooperatives 2023
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