Nguyễn Phương Thảo - Senior Associate

Lê Thị An - Paralegal

The transfer of off  plan housing purchase and sale contracts (“Off Plan Housing SPA”) is a common type of transaction for homebuyers in the secondary market. A buyer who has entered into a off plan housing sale and purchase agreement with a developer prior to submitting the application dossier for the issuance of the Certificate of Land Use Rights, Ownership of Residential Housing and Assets Attached to Land (“Certificate”) has the right of transfer the contract to another purchaser, based on the legal grounds stipulated in the Law on Real Estate Business. However, there are discrepant opinions among competent state authorities regarding the conditions for transferring Off Plan Housing SPA, which poses potential risks for secondary buyers acquiring rights through such transfers.

This article presents several legal issues related to transfers of Off Plan Housing SPA and highlights key considerations.

1.   Conditions for defining off plan housing and requirements for transferring Off Plan Housing SPA

      a.   Definition of off plan housing

Article 3.5 of the 2023 Law on Real Estate Business stipulates: “Off plan housing or construction works refer to residential housing or construction works that are under investment and construction, or that have not yet undergone acceptance for use in accordance with construction law”.

Article 2.24 of the 2023 Law on Housing provides: “Off plan housing refers to residential housing under investment and construction, or that has not yet undergone acceptance for use in accordance with construction law.”

Thus, both statutes define off plan housing as properties under construction or not yet formally accepted for use.

     b.   Scope of regulation under the 2023 Law on Real Estate Business and the 2023 Law on Housing regarding off plan housing

An important note is that Article 2 of the 2023 Law on Real Estate Business applies only to organizations and individuals engaging in real estate business activities in Vietnam, as well as relevant authorities, organizations, and individuals involved in such business activities. Accordingly, it raises the question of whether transactions involving the transfer of Off Plan Housing SPA in the secondary market between individuals who are not real estate business operators could be governed and applied by the Law on Real Estate Business or not.

In practice, Article 1.2 of the 2023 Law on Housing provides that the transfer of off plan housing sale and purchase contracts shall be governed by the Law on Real Estate Business. This serves as the legal basis for applying the Law on Real Estate Business to OPHPS Contract transfers. Although there may be a discrepancy in scope between the two laws when neither party to the transfer is a real estate business operator, it is generally assessed that the Law on Housing, might be acting as a specialized law, provides sufficient grounds to cross-reference and apply the Law on Real Estate Business to such transfers as a related legal provision.

      c. Conditions for transferring Off Plan Housing SPA

As analyzed above, parties intending to transfer of Off Plan Housing SPA may apply the conditions under Article 50.1(a) of the 2023 Law on Real Estate Business as follows:

• The agreement falls within the scope of contracts for which no application dossier for the Certificate has yet been submitted to competent authorities under land law; and

• Other conditions specified in Article 50.1 of the 2023 Law on Real Estate Business.

Accordingly, the Law on Real Estate Business establishes the conditions for transactions with respect to the “contract” itself that has not yet been filed for Certificate issuance, rather than the nature of the transaction involving the off plan housing.

Consistent with this interpretation, the Ministry of Construction, in Official Letter No. 4969/BXD-QLN dated 12 June 2025, regarding the transfer and issuance of Certificates for apartments in way of transfer of Off Plan Housing SPA (“Official Letter 4969”), affirmed that projects of which application dossier for the Certificate have not been submitted are still eligible for transfer of Off Plan Housing SPA, even if the purchaser has already received handover of the property from the developer (i.e., the housing has been accepted for use).

2.      Potential risks in transferring Off Plan Housing SPA after acceptance and handover

Although Official Letter 4969 provides clarification on the application of real estate business law to transfer of Off Plan Housing SPA  and confirms that transfer is not restricted in cases where the purchaser has received handover, the definition of “off plan housing” no longer applies once the property has been handed over and accepted for use.

In reality, to mitigate legal risks in applying these provisions, purchasers should verify the following before proceeding with an Off Plan Housing SPA transfer:

• Whether the project has filed an application dossier for Certificate issuance; and

• The position of the local housing authority in the provincial levelwhere the apartment is located, to determine whether the transaction could be conducted in way of transfer of Off Plan Housing SPA or as a transfer of an existing property under the Law on Housing.

Here is our article about LEGAL ISSUES IN TRANSFERING OFF PLAN HOUSING SALE AND PURCHASE AGREEMENTS. If you are interested or require legal support regarding electronic identification procedures for enterprises, please visit our DIMAC Website and explore the News Category to stay updated with the latest legal insights and shared market experiences.