Thông tư 28/2016/TT-BXD sửa quy định đào tạo quản lý vận hành nhà chung cư

THE MINISTRY OF CONSTRUCTION

Circular No.  28/2016/TT-BXD dated December 15, 2016, amendments to the Circular No. 10/2015/TT-BXD providing regulations on professional training courses in management of apartment buildings, the Circular No. 11/2015/TT-BXD providing regulations on issuance of real estate broker license; guidelines for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor; establishment and organization of activities of the real estate trading floor, and a number of regulations on management and use of apartment buildings promulgated under the Circular No. 02/2016/TT-BXD dated February 15, 2016 by the Ministry of Construction

Pursuant to the Law on Housing dated November 25, 2014;

Pursuant to the Law on real estate trading dated November 25, 2014;

Pursuant to the Government s Decree No. 62/2013/ND-CP dated June 25, 2013 defining functions, tasks, powers and organizational structure of the Ministry of Construction;

Pursuant to the Government’s Decree No. 79/2016/ND-CP dated July 01, 2016 providing for conditions for training business in specialist knowledge, professional competence in management and operation of apartment buildings, knowledge of real estate brokerage practicing, and real estate transaction management;  

At the request of the Director General of the Housing and Real Estate Market Management Agency;

Minister of Construction promulgates a Circular on amending the Circular No.10/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on professional training courses in management of apartment buildings, the Circular No. 11/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on issuance of real estate broker license, guidelines for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor, and establishment and organization of activities of the real estate trading floor, and a number of regulations on management and use of apartment buildings promulgated under the Circular No. 02/2016/TT-BXD dated February 15, 2016 by Ministry of Construction.   

Article 1. To amend the Circular No.10/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on professional training courses in management of apartment buildings

1.To amend to Article 5:

“Article 5. Application for recognition of training institution

An application for recognition of the training institution as qualified for provision of training courses in management of apartment buildings includes:

1. The application form to the Ministry of Construction for recognition of the training institution’s eligibility for provision of training courses in management of apartment buildings using the form stated in the Appendix 01 to this Circular.

2. The copy accompanied with the original for checking or the certified copy of the business registration certificate or the enterprise registration certificate or the decision of establishment of the training institution as regulated by Clause 1 Article 3 of the Government’s Decree No. 79/2016/ND-CP dated July 01, 2016 providing for conditions for training business in specialist knowledge, professional competence in management and operation of apartment buildings, knowledge of real estate brokerage practicing, and real estate transaction management (hereinafter referred to as the Decree No. 79/2016/ND-CP).

3. The certified copy of the document proving the ownership, the right to manage or use facilities, or the agreement on lease of facilities for theoretical training with the leasing duration of not less than 01 year, the contract or the written agreement on association for practicing at the apartment building which has been put into operation and are under the management of a qualified unit.

4. The syllabuses or teaching materials in conformity with the framework program as prescribed in Chapter III of this Circular.

5. The list of lecturers using the form stated in Appendix 02 to this Circular, enclosed with the document of each lecturer, consisting of:

a) The certified copy of the bachelor’s degree or higher;

b) Declaration of working experience using the form stated in the Appendix 03 to this Circular;

c) The certified copy of the labor contract or the decision on appointment of lecturer. If a lecturer is on payroll of the training institution, the certified copy of document proving that the social insurance premiums of that lecturer are covered by the training institution".  

2.To amend Point b Clause 1 Article 7:

“b) Within 20 working days from the date of receipt of the complete application as prescribed in Article 5 hereof, the Housing and Real Estate Market Management Agency shall verify the application and report the application which satisfies all of the conditions prescribed in Clauses 1, 2, 3 an 4 Article 3 of the Decree No. 79/2016/ND-CP to the Ministry of Construction to make decision or authorize the Housing and Real Estate Market Management Agency to make decision on recognition of the training institution’s eligibility to provide training courses in management of apartment buildings. Name and address of the training institution which has been recognized by the Ministry of Construction shall be posted on the website of Ministry of Construction and that of the Housing and Real Estate Market Management Agency.

The training institution shall, upon the attainment of the decision on recognition from the Ministry of Construction, send 01 set of application (the copy) for recognition of the training institution which has been given approval by the Ministry of Construction to the Department of Construction of province where the training institution is located for monitoring and management”.

3.To amend Point a Clause 2 Article 13:

“1. The training institution must, within 05 days before the commencement of the training course, give a notification to the Department of Construction of province where the training course is provided of time and location of the training course, timetable, the list of lecturers for each group of learners as prescribed in Clauses 1 and 2 Article 2 of this Circular, and the schedule of final exam.

The training institution must establish the training management department to take charge of organizing training courses, storing learners dossiers, and other documents related to training activities; promulgate regulations on training management, including specific regulations on enrolment requirements, length of each training course, the number of lectures, the number of periods of each lecture (including lectures other than those of compulsory specialized subjects as regulated in this Circular), final exam, criteria for evaluation and classification of learners’ performance, and eligibility requirements to obtain certificate of completion of training course for the learners specified in Clauses 1 and 2 Article 2 hereof”.

4.To amend Point a Clause 1 Article 15:

“a) If a learner specified in Clause 1 Article 2 hereof passes the final exam and has his/her academic performance recognized as satisfactory by the Council for Evaluation of Academic Performance, that learner shall be granted a Certificate of Completion of Training Course within 15 days as of the date of examination.

The exam paper shall be marked according to the 100-point grading scale. An exam paper is considered as failed if it is given a mark of less than 50 points. The training institution shall be responsible for organizing a resit for learners who failed the first exam as requested."

Article 2. To amend the Circular No. 11/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on issuance of real estate broker license, guidelines for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor, and establishment and organization of activities of the real estate trading floor

1.To amend the Clause 2, Article 3:

“2. Each Provincial Department of Construction may designate or authorize one or some of the following competent units to hold the examination (hereinafter referred to as the examination organization unit):

a) Division with the housing and real estate management function affiliated to the Department of Construction;

b) Training institutions having satisfied all of conditions for training business in knowledge of real estate brokerage practicing and real estate transaction management as regulated in Article 4 of the Decree No. 79/2016/ND-CP;

c) The Vietnam National Real Estate Association;

d) The Real Estate Associations of provinces or central-affiliated cities;

dd) The Vietnam Association of Realtors.”

2.To amend the Point b Clause 1, Article 4:

“b) The board of examiners is comprised of: 01 representative of the division with the housing and real estate management function affiliated to the Department of Construction, 01 representative of the examination organization unit, members of the Real Estate Association and Vietnam Association of Realtors, lecturers of the training institution, specialists of the real estate brokerage services enterprises and the real estate trading floors or other specialists selected by the Chairperson of the board of examiners.”

3.To amend the Article 19:

“Article 19. Guidelines on lecturers, training facilities and framework program for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor

1. A lecturer of the training course in knowledge of real estate brokerage practice and management of the real estate trading floor must possess bachelor s degree or higher in a major corresponding to the teaching contents and have at least 05 years of experience in state management, scientific research or training in the field of real estate or trading in real estate.

The training institution must make the list of lecturers and statement of their qualifications and experience according to instructions in the Appendix 8 and Appendix 9 to this Circular for monitoring and management.

2. The training institution must establish the training management department to take charge of organizing training courses, storing learners dossiers, and other documents related to training activities; promulgate regulations on training management, including specific regulations on enrolment requirements, length of each training course, the number of lectures, the number of periods of each lecture (including lectures other than those of compulsory specialized subjects as regulated in this Circular), final exam, criteria for evaluation and classification of learners’ performance, and eligibility requirements to obtain certificate of completion of training course.

3. The framework program for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor includes basic knowledge and major knowledge as referred to in the Appendix No. 6 to this Circular.

Heads of training institutions shall base on the framework program introduced in the Appendix No. 6 to this Circular to formulate, give approval and assume responsibility for their syllabuses or teaching materials.”

4.To amend the Article 20:

“Article 20. Announcement of training institution’s information

1. The training institution shall, after obtaining the certification of eligibility to organize training courses as prescribed in Article 4 of the Decree No. 79/2016/ND-CP, provide information required as prescribed in Clause 2 of this Article to the Department of Construction of province where its head office is located and the Housing and Real Estate Market Management Agency.  The Department of Construction of province where the head office of the training institution is located and the Housing and Real Estate Market Management Agency shall assume responsibility to post information concerning that training institution on their websites for management.

2. Information announced includes: name of the training institution, full name of legal representative, address and telephone number of the training institution.

3. If there is any change of the information prescribed in Clause 2 of this Article or when training activities are terminated or the training institution is dissolved or declared bankrupt, the training institution must report to the agencies in charge of posting information relating to such training institution as specified in Clause 1 of this Article to modify or remove announced information".

5.To amend Point d Clause 1, Article 21:

“d) Test, evaluate and rank study results for granting certificate of completion of training course to qualified learner.

The training facility shall, before the course-end exam, arrange for learners to practice at real estate brokerage offices, real estate trading floors or real estate trading enterprises with a sufficient duration as regulated. Upon the completion of course-end internship, learners must submit reports of their internship. A learner shall be eligible to attend the course-end exam only when he/she has satisfied the requirements on attendance rate and duration of internship, and has submitted the internship report as regulated. The examiners must be lecturers whose names are in the list of registered lecturers of the training institution. Test questions shall be compiled by the training institution provided that they must be in conformity with the framework program approved by the head of that training institution”.

6.To amend Article 24:

“Article 24. Establishment and announcement of information concerning the real estate trading floor

1. Any entity that wants to establish a real estate trading floor (hereinafter referred to as the trading floor) must satisfy all of conditions prescribed in Article 69 of the Law No. 66/2014/QH13 on real estate trading.

2. The entity establishing the trading floor must provide information about the established trading floor to the Department of Construction of province or central-affiliated city where the trading floor is located or the Housing and Real Estate Market Management Agency. Department of Construction and the Housing and Real Estate Market Management Agency shall assume responsibility to post information provided by the entity establishing the trading floor on their websites for management.

3. Information provided consists of:

a) Name of the enterprise establishing the trading floor, full name of legal representative of the enterprise, and the enterprise’s address;

b) Name of the trading floor, date of establishment, location and telephone number of the trading floor, and full name of the trading floor s manager.

4. If there is any change of the information prescribed in Clause 3 of this Article or when the trading floor’s activities are terminated or the trading floor is dissolved or declared bankrupt, the enterprise establishing the trading floor must report to the agencies in charge of posting information relating to the trading floor as specified in Clause 2 of this Article to modify or remove announced information".

7.To amend Article 29:

“Article 29. Implementation organization

1. The Housing and Real Estate Market Management Agency shall instruct and inspect the organization of the testing examinations and grant of real estate broker licenses as regulated in this Circular; directly conduct inspection or coordinate with Departments of Constructions of provinces or central-affiliated cities in conducting inspection of the training and improving courses in knowledge of real estate brokerage and management of the real estate trading floor, and inspection of the operations of the real estate trading floors in conformity with regulations of this Circular.

2. Departments of Constructions of provinces or central-affiliated cities shall organize testing examinations and grant real estate broker licenses to qualified candidates, and instruct and inspect the implementation of this Circular in their provinces or cities.”

Article 3. To amend a number of regulations on management and use of apartment buildings promulgated under the Circular No. 02/2016/TT-BXD dated February 15, 2016 by Ministry of Construction  

1.To amend the Clauses 2 and 3, Article 3:

“2. Apartment building refers to an independent block of apartments or several blocks of apartments sharing the same podium constructed according to the planning and project documentation approved by competent agencies.

3. Apartment complex includes at least two apartment buildings or more constructed according to the planning and project documentation approved by competent agencies.”

2.To amend Clause 1, Article 9:

“1. Apartment buildings are governed by this Regulation should have internal regulations on management and use of apartment units with contents as prescribed in Clause 2 of this Article. The main investors and the apartment building meetings shall base on the sample internal regulations specified in this Regulation to formulate the internal regulations appropriate for each apartment building or apartment complex.”

3.To add the point c to Clause 5, Article 14:

“c) The main investor terminates operation because of dissolution, merging or bankruptcy.”  

4.To add the point c to Clause 2, Article 16:

“c) Each owner of apartment unit or other area in the apartment building has the right to authorize the only person who is using that apartment or the other area in the apartment building to attend the apartment building meeting.”

5.To amend the Article 18:

“Article 18. Models of the apartment building’s management board

1. The management board of a multi-owner apartment building or apartment complex shall be established and operate according to the model of the board of directors of a co-operative or a joint-stock company. The operating model of the management board shall be decided at the apartment building meeting in conformity with actual status of each apartment building or apartment complex.

2. If a management board is established and operates according to the model of the board of directors of a co-operative, the convening and organization of the meeting of the management board shall be performed in conformity with regulations of the Law on co-operatives. If a management board is established and operates according to the model of the board of directors of a joint-stock company, the convening and organization of the meeting of the management board shall be performed in conformity with regulations of the Law on enterprises.

Voting and making the written record of the management board’s meeting must comply with provisions set out in Article 25 hereof.

3. The management board of a single-owner apartment building or apartment complex shall be established and operate according to the self-governance model. Members of the management board shall themselves carry out an agreement on rights and duties of each member in conformity with regulations in Clause 2 Article 41 of this Regulation.”

6.To amend Clause 1, Article 19:

1. With regard of a multi-owner apartment building, members of the apartment building’s management board must be the owners who are using apartments in that apartment building. In case a user of an apartment or other area in the apartment building is not the owner of that apartment or such other area but is authorized by such owner to attend the apartment building meeting, that user may be appointed as a member of the management board of that apartment building.

With regard of a single-owner apartment building, members of the apartment building’s management board include representatives of apartment owners and occupants in such apartment building”.

7.To amend Clause 1, Article 20:

“1. The number of members of the management board of an apartment building or apartment complex shall be decided according to the following principle:

a) The management board of an apartment building comprising the only block of apartments must be comprised of at least 03 members. If a building s blocks share the same podium, at least 01 member of the management board shall be assigned to each block;

b) The management board of an apartment complex must be comprised of at least 06 members.”

8.To amend Article 27:

“Article 27. Apartment building management and operation unit

1. The unit taking charge of managing and operating the apartment building (hereinafter referred to as the managing unit) may be the main investor or other entity that has satisfied all of function and capacity requirements as prescribed in Clause 2 Article 105 of the Law on housing.

2. The main investor shall be responsible for managing and operating the apartment building during the period when the first apartment building meeting is not yet organized. If the main investor fails to satisfy all of function and capacity requirements as prescribed in Clause 2 Article 105 of the Law on housing to manage an apartment building which has elevator system, a qualified entity that meets all of prescribed function and capacity requirements shall be hired to manage and operate the apartment building.

3. After the first apartment building meeting has been organized, the selection of the managing unit shall be governed by the following regulations:

a) If an apartment building has no elevator system, the apartment building meeting shall decide to manage and operate the apartment building may be performed according to the self-governance method or hire an entity that meets all of function and capacity requirements to manage and operate the apartment building;   

b) With respect to an apartment building having the elevator system, if the main investor satisfies function and capacity requirements as prescribed in Clause 2 Article 105 of the Law on housing and wants to participate in the management and operation of the apartment building, the management board and the main investor shall discuss to enter into service contract for management and operation of the apartment building;

c) With respect to an apartment building having the elevator system, if the main investor fails to satisfy function and capacity requirements or satisfies all of function and capacity requirements as prescribed in Clause 2 Article 105 of the Law on housing but does not want to participate in the management and operation, or if the main investor performs the management and operation of the apartment building but fails to satisfy requirements specified in the signed service contract, the apartment building meeting shall decide to select another qualified entity that meets all of prescribed function and capacity requirements to manage and operate that apartment building.

4. Each apartment building shall have one managing unit only. An apartment complex may have one managing unit or each apartment building in the apartment complex may have its own managing unit as decided in the apartment complex meeting. If each building in the apartment complex has its own managing unit, the management board of the apartment complex shall carry out an agreement with all managing units on the management and operation of shared technical facilities and systems in the apartment complex.

5. The managing unit may enter service contracts with other service providers to perform the management and operation works provided the managing unit must be responsible for service quality under terms and conditions specified in the service contract signed with the management board.”

9.To amend the Article 28:

“Article 28. Announcement of information concerning the managing unit

1. Each managing unit shall, after having satisfied all of prescribed function and capacity requirements, send an application which specifies its name, address and telephone number, enclosed with certified copies of documents proving its eligibility as prescribed in Clause 2 Article 105 of the Law on housing, to the Department of Construction of province where its head office is located or the Housing and Real Estate Market Management Agency.  The Department of Construction of province where the head office of the managing unit is located or the Housing and Real Estate Market Management Agency shall verify the application and post information concerning that managing unit on its website for management if the application is valid. If the application is invalid, the Department of Construction or the Housing and Real Estate Market Management Agency shall notify the managing unit to supplement the application.

The apartment building meeting shall refer to the information posted on the website of the Department of Construction or the Housing and Real Estate Market Management Agency to select a qualified managing unit in conformity with specific conditions of each apartment building or apartment complex.

2. Information provided to the Department of Construction or the Housing and Real Estate Market Management Agency for posting includes: name of the managing unit, full name of legal representative, address and telephone number of the managing unit.

3. If there is any change of the information prescribed in Clause 2 of this Article or when the managing unit terminates its operation or is dissolved or declared bankrupt, the managing unit must report to the Department of Construction of province where its head office is located or the Housing and Real Estate Market Management Agency for modification or removal of posted information.  

If the agency posting information or the competent agency conducts inspection and discovers that the managing unit has terminated its operation or has been dissolved or declared bankrupt or failed to meet prescribed requirements for performing management and operation works, the information concerning that management unit posted on the website of the agency that has posted such information shall be removed.”  

10.To amend the Clause 1, Article 29:

“1. The management and operation of the apartment building must be carried out under a service contract for management and operation of the apartment building signed by and between the managing unit and the management board of that apartment building.

The service contract signed by the parties must include main contents prescribed in Clause 2 of this Article and made by referring to the template of service contract stated in the Appendix 02 to this Circular.”

11.To amend Point a Clause 2, Article 36:

“a) The management board shall open a special deposit account at a credit institution operating in Vietnam for management and use of expenditures on maintenance of shared portions of the apartment building.”

12.To amend Point a Clause 3, Article 36:

“a) The management board shall open a special deposit account at a credit institution operating in Vietnam for management and use of expenditures on maintenance of shared portions of the apartment area and those of the entire apartment building.”

13.To amend Clause 1, Article 38:

“1. Manage and operate the apartment building as prescribed in Clause 2 and Point b Clause 3 Article 27 hereof. If the main investor fails to satisfy function and capacity requirements or satisfies all of function and capacity requirements as prescribed but does not participate in the management and operation of the apartment building, the main investor may introduce qualified entities that satisfy all of function and capacity requirements as prescribed in Clause 2 Article 105 of the Law on housing to the apartment building meeting for considering and select a suitable one.” 

14.To amend Clause 3, Article 38:

“3. Preside over organization of the first apartment building meeting, appoint people to the management board and vote in apartment building meetings as prescribed hereof if the main investor still owns apartment(s) or other area in the apartment building.”

15.To amend Clause 3, Article 43:

“3. Disputes between members of the management board shall be settled in conformity with the management board’s operating regulations ratified by the apartment building meeting.

If a member of the management board or the management board is dismissed or replaced but fails to hand over the seal, the newly established management board has the right to request the competent seal registration and issuance agency to revoke and hand over or annul the previous seal registration in order to carry out procedures for registration and issuance of a new seal in conformity with regulations on issuance, registration and management of seals to that newly established management board.  

If a member of the management board or the management board is dismissed or replaced but fails to hand over the account for management of expenditures on maintenance of shared portions of the apartment building or the account for management of expenditures on operations of the management board, the newly established management board has the right to request the credit institutions where such accounts are opened to freeze such accounts and terminate all of transactions related to the dismissed or replaced management board, and carry out procedures for handing over such accounts to the newly established management board in conformity with regulations hereof and relevant laws.”  

Article 4. Effect

1. This Circular takes effect on February 01, 2017.

2. The template of certificate of completion of professional training course in management of apartment buildings is specified in the Appendix 01 enclosed to this Circular and replaces the template of certificate of completion of professional training course in management of apartment buildings stated in the Appendix 05 enclosed to the Circular No.10/2015/TT-BXD dated December 30, 2015 by Minister of Construction.   

3. Sample internal regulations on management and use of apartment buildings specified in the Appendix No. 02 to this Circular shall replace the sample internal regulations on management and use of apartment buildings specified in the Appendix No. 01 to the Circular No. 02/2016/TT-BXD dated February 15, 2016 by Minister of Construction. 

4. To abrogated the regulations as follows:

a) The Appendix No. 05 of the Circular No.10/2015/TT-BXD dated December 30, 2015 by Ministry of Construction providing regulations on professional training courses in management of apartment buildings;

b) Clause 4 Article 3, Heading of Sections 1, 2 Chapter III, Article 27 and Appendix No. 7 of the Circular No. 11/2015/TT-BXD dated December 30, 2015 by Minister of Construction providing regulations on issuance of real estate broker license, guidelines for training and improving knowledge of real estate brokerage practice and management of the real estate trading floor, and establishment and organization of activities of the real estate trading floor;

c) Clauses 7, 8 Article 36, and Clauses 2, 3 Article 46 of the Circular No. 02/2016/TT-BXD dated April 02, 2016 by Minister of Construction on promulgation of Regulation on management and use of apartment buildings.   

5. If regulations on management and use of apartment buildings promulgated by Ministries, regulatory bodies and people’s committees of provinces or central-affiliated cities before the entry into force of this Circular contravene regulations hereof, this Circular shall be applied.

6. Any difficulties arising during the implementation of this Circular should be reported to the Ministry of Construction for consideration./.

For the Minister

The Deputy Minister

Do Duc Duy