MOBILIZING CUSTOMER CAPITAL BY SIGNING A DEPOSIT CONTRACT

Investors of housing construction investment projects mobilize capital from customers by signing deposit contracts – What are the legal regulations?

Currently, on the market there are many deposit contracts and reservation contracts between investors of housing construction projects and customers. The main reason for signing these contracts is because the Investors when implementing the Project does not have enough financial resources so they need to mobilize more but the Project does not have enough legal conditions to sign a Sales Contract. As for customers, most cases of signing deposit contracts are due to the psychology of wanting to buy real estate at a low price (because if purchased while the real estate has not yet been formed, the value of the real estate will be reduced lower than once formed).
So, according to the law, are the deposit contracts and reservation contracts mentioned above legal or not?

Mục lục bài viết

First, about the legality of the Deposit Contract

Point a, Clause 2, Article 19 of Decree No. 99/2015/ND-CP has the following provisions:

“2. Signing a capital mobilization contract for commercial housing development must comply with the following regulations:

a) In case of signing a capital mobilization contract according to the provisions of Clause 2, Article 69 of the Housing Law, the forms and conditions must be met as prescribed in the Housing Law and the provisions of Clause 3 of this Article.

Parties participating in capital contribution, investment cooperation, business cooperation, joint venture, or association specified in this Point may only divide profits (in money or shares) on the basis of the capital contribution ratio as agreed in the contract; investors are not allowed to apply the form of capital mobilization specified in this Point or other forms of capital mobilization to divide housing products or to prioritize registration, deposit, enjoy the right to buy houses or to divide land use rights in the project to the party receiving capital, except in the case of contributing capital to establish a new legal entity to be assigned by the State to be the investor of a housing construction project;”

Thus, the law clearly stipulates that investors are not allowed to mobilize customer capital to invest in and develop commercial housing by signing deposit contracts or reservation contracts, so these contracts are not in accordance with the law.

However, when comparing each specific case, we need to clarify whether signing a deposit contract is for the purpose of “raising capital” or not. If the Investor and the customer sign a deposit contract or a reservation contract simply for the purpose of ensuring the signing of a future sales contract without using the deposit money to invest in project construction, it does not belong to the cases where it is not allowed.

Huy động vốn khách hàng bằng hình thức ký kết hợp đồng đặt cọc mua bất động sản dự án — Mobilizing customer capital by signing a deposit contract

Second, some handling methods when you “accidentally” sign a Deposit Contract in violation of the above regulations but do not want to continue implementing the Contract and get your deposit back

When falling into the above situation, people can consider implementing one of the following options:

Option 1: Contact the Investor directly to request termination of the Contract

Option 2: Send a document to the State Management Agency to request inspection and clarify the Investor’s violations. From there, as a basis to agree to terminate the Contract, request the Investor to refund the deposit amount

Option 3: File a lawsuit with the competent People’s Court to request to declare the Deposit Contract invalid and handle the legal consequences of the invalid Contract.

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