Bank guarantees in transactions involving future apartment housing: implementation realities and recommendations for legal improvement.

Abstract

This article analyzes the mechanism of bank guarantees in the sale of future-built housing under Vietnamese law, focusing on clarifying the legal basis, practical application, and shortcomings in the implementation process. Based on the provisions of the 2014 Law on Real Estate Business, the 2023 Law on Real Estate Business, and related guiding documents, the article shows that although bank guarantees are designed as a tool to protect homebuyers, their practical effectiveness remains limited due to the guarantee’s scope not fully covering all transaction risks, the inconsistent issuance and execution of guarantee letters, and the phenomenon of circumventing the law to raise capital through pre-contractual agreements. Furthermore, the cost of guarantees and the risk of moral hazard in the relationship between the developer and the bank also diminish the protective significance of this mechanism. Based on the analysis of these shortcomings, the article proposes several solutions to improve the legal framework and enhance the effectiveness of implementing the bank guarantee mechanism, aiming to improve the protection of homebuyers and ensure the transparency, stability, and sustainable development of the real estate market.