Following the Ho Chi Minh City People's Court's appellate ruling that compelled the Management Board and operating unit to hand over more than 2,650 square meters of parking basement at Khanh Hoi 1 Apartment Building, located at 360C Ben Van Don, to the developer, hundreds of residents have appealed for help, fearing the loss of revenue for the building's operation and maintenance.

Parking basement disputes are not unique to Khanh Hoi 1; they have been a recurring issue in apartment buildings across Ho Chi Minh City and Hanoi for many years. A common thread in these conflicts is that both residents and developers claim ownership of these areas.

A lawyer involved in similar cases noted that parking basements are not just places for vehicles but also assets with significant commercial exploitation value. For many older apartment buildings, they represent a crucial source of revenue for the building's operation and maintenance.

In the Khanh Hoi 1 Apartment Building dispute, according to the Management Board, the building was constructed over 20 years ago, a time when the law did not mandate a 2% maintenance fund. Therefore, if the entire basement is handed over to the developer when a dispute arises, it is natural for residents to feel frustrated.

In fact, resident representatives stated that they have had to use revenue from the parking basement to repair elevators, electrical and water systems, and operate the apartment building. "If we lose this revenue, many problems will arise, making it difficult to reach a consensus on maintaining the building's operations, affecting many aspects of residential welfare," the lawyer said.

Motorbike and car parking areas are regulated differently

According to lawyers, the cause of parking basement disputes lies in the common assumption that parking basements are common property of residents, while current law does not stipulate this.

Master, lawyer Dang Thi Thuy Huyen (HPL Law Firm and Associates) stated that current law does not automatically designate the entire apartment building basement as common property. "Parking basement disputes are not just conflicts over parking spaces but also involve ownership rights, commercial exploitation rights, and long-term economic benefits in apartment projects," Ms. Huyen said.

To determine whether a parking basement belongs to residents or the developer, several factors must be considered simultaneously: the project's formation time, applicable legal regulations, approved design documents, the investment cost allocation plan, and especially the content of the apartment sales contract.

According to Decree 71/2010, which guides the Housing Law 2005, areas for motorbikes and two-wheel vehicles serving residents' needs are common property. In contrast, areas for cars can be either common property or private property of the developer, depending on how ownership is established in the project's legal documents and the apartment sales contract.

"The law does not automatically assume that the entire basement or car parking spaces are common property of residents," Ms. Huyen said.

The Housing Law 2014 and the Housing Law 2023 continue this principle, which distinguishes common and private ownership based on project legal documents and agreements between parties. Specifically, according to Article 101 of the Housing Law 2014, car parking spaces can be sold, leased separately, or managed by the developer if not yet transferred to residents. And Article 142 of the Housing Law 2023 states that common and private ownership portions in an apartment building must be clearly specified in the apartment sales or lease-purchase contract.

The parking basement at Khanh Hoi 1 Apartment Building is currently subject to a dispute between the developer and residents. Photo: Le Huong

The crux lies in the sales contract

Lawyer Huyen added that in many disputes, courts often examine the apartment sales contract closely to determine if the developer explicitly disclosed private ownership from the outset.

If the contract clearly states that the car parking area is the developer's private property, this serves as an important legal basis to protect the enterprise's rights. Conversely, if the contract does not mention it or is unclear, disputes are likely to arise.

In such cases, the court considers whether the basement construction costs were allocated to the apartment sales price.

"Many judgments show that if the developer can prove that the car parking area was independently invested, accounted for separately, and not included in the apartment sales price, it is highly likely to be recognized as private property," Ms. Huyen said.

Residents, however, often argue that basement construction costs were included in the apartment sales price, and therefore, this area should be common property.

What should homebuyers note?

Sharing this view, lawyer Tran Minh Hung (Ho Chi Minh City Bar Association) noted another reality: many older apartment projects did not clearly state parking basement ownership in contracts, leading to differing interpretations when disputes occur. Additionally, homebuyers often do not pay close attention to parking area clauses before signing contracts.

According to Mr. Hung, to prevent disputes, developers should, from the project licensing stage, clearly define which areas are common property and which are the developer's private property in legal documents and construction permits, ensuring the rights of all parties.

For residents, when signing a purchase contract, special attention should be paid to the following details: whether the contract clearly states if the parking basement is private or common property; how car and motorbike parking spaces are regulated; whether basement construction costs are included in the apartment sales price; whether the developer has the right to commercially exploit this area; and whether legal documents and construction permits clearly define common and private ownership.

"If the contract and legal documents are not clear, disputes are very likely to arise once the apartment building becomes operational," Mr. Hung said.

According to the lawyer, in many current apartment building disputes, even one ambiguous clause regarding parking basements can lead to prolonged lawsuits for many years between residents and developers.

Hai Duyen