Preliminary contract for the purchase and sale of an apartment with or without a deposit. Preliminary contract for the purchase and sale of real estate Specifics in cases with the acquisition of a share

The transaction of buying and selling real estate is a fairly common type of transactions between Russian citizens. Despite the seeming simplicity of the operation, without a preliminary contract for the sale of an apartment, it carries a lot of outwardly not expressed risks. Even without considering the dangers associated with possible fraud by one of the parties involved in the transaction, there is a risk of financial losses as a result of the refusal of the buyer (seller) to buy (sell) the apartment for any personal reason.

If a loan was taken under the proposed transaction or the potential buyer at the time of the seller's refusal had already sold the previously occupied housing, he will certainly incur losses associated with the payment of interest charges to the bank on an unrealized loan, or in connection with unplanned spending on financing a temporary residence. Some banks require a mandatory presentation of a preliminary agreement for mortgage lending.

In order to gain confidence in the legitimacy of the upcoming agreement, the parties are developing a preliminary agreement for the sale and purchase of an apartment. The expediency of issuing such a document not only in reducing the likelihood of financial costs for one of the parties, but also for a number of other reasons:

in order to give legal force to a previously concluded oral agreement between the buyer and the seller;
for the guaranteed approval of the price of the real estate object accepted by the parties (meaning the guarantee of the invariability of the amount throughout the entire transaction), this is especially important when the buyer attracts part or the full amount with borrowed funds;
to determine the mutually agreeable side of the date of transfer of the apartment to new owners (release of the property by the previous owners);
determination of the actual state of the apartment, which the previous owner is obliged to maintain (realize) by the time of completion of the transfer and acceptance of ownership;
the financial amount transferred by the buyer to the seller in order to confirm the seriousness of his intentions. When making a transaction involving a deposit, the document must be certified by a notary at the place of registration of the contract. By the way, similar legal operations with the main clause are not required in connection with the identification of the buyer and seller of real estate by Rosreestr employees;
in order to determine the procedure for the return of the deposit to the buyer in the event of circumstances that do not allow the parties to fulfill the full list or part of the obligations reflected in the preliminary agreement.

This is just an approximate list of the most relevant information reflected in the apartment purchase and sale agreement in the vast majority of cases. By mutual agreement of the parties involved in the transaction, the preliminary agreement may be supplemented with any justified clause.

Transfer of the deposit

A deposit is a part of the cost of a residential property set by the seller (usually five percent), transferred by a potential buyer to the seller of an apartment, as a factor that increases the reliability of intentions and a guarantee of the success of a future transaction.

The deposit is transferred to the seller (owner) of the apartment in cash in the presence of a notary with the simultaneous signing by the parties of an agreement - a preliminary agreement for the re-registration of the apartment. Recently, with the spread of non-cash methods of payment for the cost of goods and services, at the request of one of the parties (mutual desire), the amount of the deposit stipulated in the preliminary agreement can be transferred to the apartment owner to the bank account by any of the methods available to the buyer.

The detailed conditions for the transfer (receipt) and return (non-return) of the deposit amount are necessarily reflected in one of the clauses of the purchase and sale agreement. When transactions are performed in 2020 under an agreement with a deposit, it is generally accepted that if the transaction fails through the fault (initiative, creation of conditions, prerequisites, etc.) of the buyer, then he cannot claim to return the previously paid deposit for the apartment. In turn, upon deliberate termination of the terms of the contract (unilateral withdrawal from the transaction) by the seller of the real estate (apartment), the amount of the previously received deposit is returned to the buyer in an amount twice the initial amount.

A sample of a prepared document that takes into account the nuances of purchasing a home with a deposit in 2019 can be downloaded at.

Purchasing an apartment on a mortgage

Buying real estate with borrowed funds (mortgage) has a number of distinctive features from a transaction without it:

The first difference is that the creditor bank necessarily becomes a participant (one of the parties to the agreement) in the transaction.
The second difference concerns the acquisition of housing in the primary market (in a new building). A representative of a legal entity - a developer acts as a seller in such transactions, which imposes non-exclusive restrictions on the transaction and entails the introduction of a number of additional clauses in the purchase and sale agreement.
The bank assumes the obligations of the guarantor of the upcoming transaction, regardless of the status of the seller of the apartment.
When buying an apartment from a construction company, it is she who dictates the fundamental conditions for concluding contracts of all types of registration.
The mortgage lending agreement is concluded with the buyer for the full cost of the purchased apartment, not taking into account the amount of the loan. The developer company may not require the obligatory transfer of the deposit, if we are not talking about apartments that are in consistently high demand. The amount of the deposit varies from five to ten percent of the cadastral value of the subject of the transaction.

Preliminary contract for the sale and purchase of a share of an apartment

The operation of acquiring a share in an apartment (other residential premises) does not fundamentally differ from the purchase of a property as a whole. The main difference in the structure of the preliminary (main) contract is the detailed presentation in the text of the document of exact geometric data, size, cost, percentage and other uniquely identifying the acquired share of data.

The cost in all cases is indicated in rubles. When considering a real estate object, assessed by the seller in any other currency of foreign states, the price is entered into the purchase and sale agreement, converted into rubles at the exchange rate of the Central Bank on the day of signing (notarial registration) of the agreement.

In the case of the purchase of shares, the obligation to carry out verification measures of the consent of the owners of other parts of the dwelling for the sale by the main seller of their share lies with the seller. Buying a share is a much more problematic operation compared to buying an apartment in the secondary real estate market. For example, if the requirements of Article 250 of the Civil Code of the Russian Federation "On the Right of Pre-emptive Acquisition" are not complied with, the court may invalidate the sale and purchase operation and cancel the original agreement, despite the impeccably executed and notarized contract.

Purchase and sale in the primary market

The purchase of an apartment in a new building (from the developer) does not impose additional restrictions on the execution of contracts. A preliminary agreement for the sale and purchase of an apartment is drawn up with a legal entity as a seller in a regular manner.

Unlike equity participation agreements, where the buyer becomes the full owner of the home even before the completion of its construction and commissioning, the acquisition of a new building under a preliminary sale and purchase agreement imposes limited obligations on the seller. With a share participation in the construction of residential premises, the registration of additional contractual agreements does not contain elements of expediency. A developer company will not be able to sell an apartment without the written consent of an individual (legal entity) who acted as a financial sponsor of its construction, and all relations between the parties are governed by special conditions for participation in shared construction.

Contract structure

The preliminary contract does not have a legally established form, is drawn up on a sheet of standard A4 format and, if necessary, is supplemented with clauses required by agreement of the parties. An example can be downloaded from this link.

But, despite the free form of drawing up the document, it is certified by a notary and necessarily reflects information:

on the current calendar date of development and signing of the preliminary contract;
about the geographical location at the time of signing (as a rule, the city of registration is simply indicated);
fully written (without abbreviations) surnames, names and patronymics of all participants in the contractual relationship, in the simplest case - the owner of the apartment and the potential buyer, their handwritten signatures;
information roughly orienting the date (period, time interval) of signing by the parties of the main contract. As a rule, the month or quarter of the estimated readiness of the parties is indicated;
sanctions measures of responsibility applied to the party not fulfilling (evading) the terms of the signed agreement;
method and peculiarities of the procedure for receiving funds by the seller (when making a transaction with settlement on a non-cash basis, the financial details of the parties are additionally indicated);
geographic coordinates (if technically feasible) and the location address of the purchased apartment;
the main technical features of the apartment, which the previous owner is obliged to maintain until the official transfer of the dwelling;
the exact date (it is allowed to indicate the approximate time interval) of the final transfer of the apartment from the previous owner to the present;
permissive or prohibiting clause on the introduction of additional conditions by one of the parties into an already signed agreement;
the price of an apartment in digital form and in words, the amount of the deposit and the conditions for its transfer (as a rule, they choose the offices of lawyers or notaries).

Document validity period

Legally, the document ceases to be valid after the parties fulfill all the points (conditions) reflected in the body of the document. The force of the contract can also be lost in case of proven non-fulfillment by one of the parties to the terms of the transaction and judicial termination of the contract.

Also, the time of the treaty's legitimacy can be limited by the paragraph of the text of the document itself, this has an effective rational core. If the specific deadlines for the fulfillment of the obligations of the parties (the extreme of possible dates is indicated) are not indicated, in the future this may entail additional problems - deterioration of the financial situation of one of the parties to the transaction and an attempt against this background to obtain more favorable conditions, the onset of force majeure circumstances - fire, earthquake, fighting, etc.

Conclusion

A verbal agreement, even between good friends and close relatives, does not guarantee an unconditionally positive completion of the transaction, especially when large financial amounts are involved. Despite the fact that the notarization of the preliminary contract is mandatory, it itself is developed and concluded solely at the mutual request of the parties interested in making the purchase (except for conditions when the form is presented to a credit institution, for example, a bank).

A well-developed document preceding the signing of the main contract for the purchase and sale of an apartment is an effective legally significant measure to prevent illegal actions, as well as actions related to attempts to evade responsibility if the conditions of an oral agreement are not met.

In contact with

In some cases, when buying a property, a preliminary contract is drawn up, which postpones the purchase and sale transaction in time. There are several important points that you should pay attention to when designing it: you will find out about it right now.

You can download a sample letterhead at the end of the article.

When making a purchase of a certain property object (apartment, land plot, car, etc.), the parties can, but are not obliged, to conclude a so-called preliminary sales contract. The legality of such an action, as well as the existence of such a document, is reflected in Civil Code (article 429).

The main purpose is that both parties assume certain obligations before the transaction takes place:

the seller undertakes to sell the object to this particular buyer;
the buyer undertakes to buy the object from this seller.

The parties' intention to conclude the main contract is confirmed in the preliminary one, when the purchase and sale transaction takes place. The parties mean that the main contract will be signed on the same terms.

The purpose of the preliminary agreement is that each party to the transaction can confirm its intentions and at the same time take a written commitment from the other party about its intentions. Most often, an agreement is fixed on the further purchase of an apartment. Typically, such a document is required in the following cases:

The seller and the buyer agreed on the deal, but the seller does not have some documents for the apartment or they are not drawn up correctly.
The buyer does not have enough funds for a one-time purchase, but he immediately transfers part of the amount and undertakes to pay the rest in full within a certain period.
When buying an apartment on a mortgage, concluding a preliminary agreement is a common practice, since the procedure is complicated by the need to obtain permission from the bank, which will take housing as collateral against the provision of credit funds.

The contract differs from the main one in that it does not need to be registered either with Rosreestr or certified by a notary. In this sense, the document carries certain risks if the parties do not provide documents proving that the apartment is not encumbered (bail, arrest, claims of third parties, etc.).

The pre-signed contract carries certain guarantees, as well as the risks of the parties - all of which are discussed in detail in the next section.

Preliminary contract: guarantees

The preliminary agreement contains 2 important guarantees that protect the interests of both parties:

This document guarantees to the buyer that the apartment will be sold to him and at the exact price that was indicated.
The contract gives the seller a guarantee that this particular buyer will buy an apartment from him no later than the period specified.

If someone evades their obligations, either party can go to court in order for the main contract to be enforced, and the transaction took place. The application can be submitted within 6 calendar months from the day when, according to the preliminary agreement, it is required to conclude the main one (meaning the deadline).

The commentary of a specialist on the features of the preliminary contract is presented in the video.

Preliminary contract: risks

The main risks are associated with the fact that the parties may evade their obligations. Moreover, if they have not expressed any claims within six months, then the preliminary sales contract ceases to be valid automatically.

By itself, this document carries no risks in the sense that the ownership from the seller to the buyer on the basis of its signature does not occur. If one party asks to compel the other party to conclude a transaction, the defendant may file a counterclaim to invalidate the contract.

NOTE. If a preliminary contract is concluded when purchasing a new building (with a developer company), then in case of default, the plaintiff may apply to the court with the requirement to force the defendant to sign an agreement on participation in shared construction.

Otherwise, the preliminary agreement is fraught with risks that generally accompany transactions in the real estate market:

1. In some cases, a preliminary agreement may be recognized by the court as not concluded.

This is possible in 2 cases:

the contract was drawn up with obvious violations (not all the details of the apartment are indicated, there are factual errors);
the apartment does not exist or it is still under construction.

2. Risk due to the fact that the apartment can be sold repeatedly. This situation arises in the case of a developer carrying out a fraudulent scheme: for example, he can conclude several identical contracts for the sale of the same apartment.

3. Risk associated with the loss of funds spent on the purchase of an apartment. This also applies to cases of purchasing an apartment directly in a building under construction. It is important to understand that the invested funds (under a trust agreement) do not always return when construction is terminated - often the company is declared bankrupt, and the injured party can only hope for partial compensation for its loss.

Thus, after signing the preliminary contract, the parties are obliged to sign the main contract on exactly the same conditions (changes are possible only by mutual agreement).

In the case of private citizens (when buying a home on the secondary market), the main risks are associated precisely with the fact that the parties will not fulfill their obligations. If an apartment is purchased in a new building, the danger increases sharply - it all depends on the honesty of the developer.

Preliminary contract: sample 2017

Requirements for the preliminary purchase and sale agreement have not changed this year. The standard form is easy to download and print.

When filling it out, it is important to take into account that all essential conditions are reflected in the document - it is better to check that all the data coincide with those indicated in the relevant documents (passport of the owner of the apartment, certificate of ownership). Particular attention is paid to the following points:

Contract price, i.e. at what cost the seller undertakes to sell the apartment within the agreed period.
The preliminary agreement must indicate all persons who live with the seller at the moment. Their full name and passport data are indicated.
If the owner lives elsewhere, it is better to indicate both addresses: the actual one and the one recorded in the passport.
The contract must separately describe the fact that the seller guarantees: the apartment is not pledged, under arrest, other persons do not claim it.
The validity period of the preliminary contract is an integral condition of its validity: after this date, the contract ceases to be valid.
The contract must prescribe the procedure for paying the cost of housing: for example, first the buyer pays 10% of the total amount, and then the remaining 90%. The fact of payment is additionally confirmed by a deposit agreement (at the request of Article 380 of the Civil Code). The same document is called a receipt - it is drawn up in any form and is also signed by both parties.
Liability for non-fulfillment of obligations is also described: pre-trial settlement is meant. For example, a party that evaded the deal pays the other party double the collateral.

Without specifying any of these essential conditions, it is practically impossible to recognize the preliminary contract legally valid, which is why it will not be possible to use it in court proceedings as one of the evidence.

A sample contract is shown below.

It should also be noted that the drawing up of such an agreement does not provide for the transfer of housing to the ownership of the buyer. Accordingly, there is no need:

draw up a deed of transfer;
provide extracts from the personal account, which prove the absence of arrears on utility bills;
order an extract from the USRN to prove that the apartment is not encumbered;
to attach the technical passport of the apartment to the preliminary contract.

After the parties conclude a sale and purchase transaction and sign the main contract, the preliminary one is considered invalid. No special documents are drawn up on this fact - the parties can simply destroy this document.

Download a sample form:

When buying real estate on the eve of the Main Agreement, the parties can conclude a preliminary agreement for the sale of an apartment with or without a deposit. The document makes it possible to confirm the intention to purchase housing, and if life circumstances change, to adjust some points or postpone the purchase. It is not necessary to draw up it, however, in some cases, you cannot do without a preliminary agreement.

What does a preliminary contract of sale of an apartment give

In fact, a preliminary sales agreement (PDKP) is an agreement on the conclusion of the Main Agreement in the future on agreed terms. It is advisable to issue a PDCP under the following circumstances:

At the moment, the buyer does not have enough money to make a purchase. By concluding the PDKP, the seller confirms his readiness to wait for the collection of the missing amount, and the buyer confirms his readiness to buy the property on time.
Inability to come in person to complete the transaction. Sometimes the parties cannot show up for a deal, and actions through intermediaries raise suspicions. Registration of the PDKP makes it possible to postpone the sale until the arrival of the parties.
Lack of required documents. Some certificates, for example, the permission of the guardianship authorities for the sale, may take from 2 weeks to 1 month, so sometimes the parties desperately need a postponement of the transaction to collect the documents.
Mistrust on the part of the buyer. The seller must confirm that the apartment belongs only to him and after the sale, "hidden" owners will not appear. To collect evidence in the form of additional certificates, extracts will be required from 1 to 4 weeks.

The execution of the contract is governed by Art. 429 of the Civil Code of the Russian Federation. According to the law, it must contain the same conditions that will be in the Basic Agreement. The pre-contract reflects the willingness to buy an apartment at a specified price within a specified period of time.

What is the difference between a preliminary contract of purchase and sale of an apartment from the main contract

The main difference between the Preliminary and the Basic Agreement is that the latter does not provide grounds for acquiring ownership of real estate. Under the agreement, the transfer of an apartment or money in payment for housing is not made. In addition, there are other features that you should pay attention to:

The subject of the agreement in the PDKP can be described in less detail than in the General. It is enough to indicate the exact address. However, if desired, the parties can go into details, indicating the number of rooms, area and other nuances.
Despite the specific indication of the price of the apartment in the PDKP, payment upon its conclusion is not made. The only thing that the parties can do is agree on making an advance payment or a deposit against the amount under the Main Agreement.
The preliminary agreement by default is valid for only one year, after which it is either considered invalid by mutual agreement of the parties, or terminated in court. The term of the Main Agreement is not limited. This means that if the parties entered into an agreement on the sale and purchase of an apartment, if necessary, they certified it with a notary and registered with Rosreestr, it is valid until the final fulfillment of obligations. Of course, there may be time restrictions in it, for example, on the date of payment of the entire cost of the apartment or the specific date of discharge of residents.
The preliminary contract must be concluded in writing. Notarization is not required. Unlike it, it can also be concluded in a simple form, and in some cases - in a notary (when selling an apartment of an incapacitated, minor citizen or in the case of selling an apartment in shared ownership). At the same time, state registration with Rosreestr is a mandatory procedure.

The PDKP may include additional guarantees for the performance of obligations - an advance or a deposit.

Deposit in the preliminary contract of purchase and sale of the apartment

There is a significant difference between the concepts of "advance" and "deposit".

The deposit most closely meets the criterion of the means of securing the contract. According to Art. 380 of the Civil Code of the Russian Federation, this is the amount that is issued by one party to the agreement to the other party. The deposit is part of the payment for the purchase of the apartment. It is entered as proof of the intention to fulfill the contract in good faith.

Whatever the amount of the deposit, the agreement on its payment must be made in writing.

If there is a violation of the agreements, making a deposit carries a threat of material losses for both parties.

According to Art. 381 of the Civil Code of the Russian Federation, if the obligation cannot be fulfilled or the parties themselves have come to a consensus on the cancellation of the transaction, the deposit can be returned. However, if the buyer abandons the intention to buy an apartment, the deposit left by him will remain with the seller. The latter may also suffer losses. If the seller takes the deposit and changes his mind to sell the property, he must pay the deposit doubled. In addition, the violator of obligations must compensate the counterparty for the losses incurred.

Another common form of payment made before the transaction is made is the conclusion of a contract with an advance payment. It is a percentage of the principal amount of the agreement. In case of termination of obligations, this payment must be returned, but taking into account the costs incurred by the second party.

Example. The seller received an advance - 10% from the cost of the apartment and partially spent the money on paperwork for the sale. The wife dissuaded the buyer from purchasing the apartment, so the seller returned only the remainder of the advance payment to the buyer.

If the amount cannot be attributed to the deposit, it is considered an advance.

For the Buyer and the Seller, the preferable form of security for the execution of the contract is a deposit (not to be confused with a pledge when an encumbrance is imposed on the property). Its payment implies more serious negative consequences in case of violation of the provisions of the PDKP. If, then, they are not afraid of possible difficulties and are determined to make a deal.

The condition for the payment of the deposit can be included in the preliminary contract of purchase and sale of the apartment. By transferring the sum of money as a deposit, the parties draw up a receipt stating that the Buyer has transferred, and the Seller has accepted a certain amount, and the receipt must include the word "deposit", otherwise the action will be regarded as an advance payment.

What it obliges, the risks of the buyer, the consequences of a breach of the contract

The preliminary agreement obliges the Buyer to purchase an apartment in the future. If he refuses, he risks losing the paid amount of the deposit. Even the beginning of the trial is not ruled out. The fact is that according to paragraph 5 of Art. 429 of the Civil Code of the Russian Federation in case of violation of obligations, each of the parties to the contract has the right to demand in court the registration of the sale of an apartment within six months from the date of default.

As for the risks, in the secondary housing market, the conclusion of the PDKP does not carry any claims. Everything is extremely clear and transparent. There is a desire to conclude a PDKP - please, the law gives such a right, there is no desire to give any obligations - the contract is not concluded. Then, upon registration of the sale, the Basic Agreement is immediately prepared.

Risks of entering into MPCP on the primary real estate market

The greatest risks are associated with the purchase of housing under the MPCP in the primary market. The fact is that the developer must conclude an equity participation agreement with the buyer. According to such a document, the person in charge borrows money from the investor (the buyer of the apartment), and in return undertakes to conclude an agreement upon completion of construction, which will result in the transfer of ownership from the developer to the buyer.

The substitution of the DDU for the PDKP means that the Buyer will not have the right to demand that the developer transfer the apartment into ownership. If the construction turns out to be incomplete, at best the investor will be able to return the security deposit.

It should be noted that the risk of a “double sale” is excluded when registering a preschool education program, and the MPCP can be concluded several times. Then several defrauded investors will apply for the completed apartment.

When buying an apartment on the primary market, the PDKP can be issued only on the condition that the apartment physically already exists, the developer is the owner and intends to sell it. When investing in construction, you only need to conclude a DDU. Also, you should not trust the developer offering to conclude a preliminary agreement on equity participation, since it does not bear legal consequences similar to the DDU.

Where to conclude

You can draw up an agreement of intent to sell an apartment:

independently;
with the help of a notary;
in a real estate agency.

The first method is the cheapest and most dangerous, since the slightest inaccuracy in the wording of the clauses that a standard contract may contain will turn the PDKP into useless paper. You should ask a lawyer how to draw up a document correctly.

The notary can help to competently draw up a document, assess the legal capacity of the parties, and confirm that the actions of the Seller and the Buyer are voluntary.

Realtors mainly act in the interests of the Seller. Buyer protection is the last thing they care about. In the overwhelming majority of cases, as a security for the transaction, it is proposed to indicate that the buyer makes an advance, the return of which is extremely difficult.

Is it obligatory to conclude

Registration of PDKP is voluntary. If the seller does not want to execute an agreement of intent to complete the transaction, he may “lose” the buyer, who needs such a document. The fact is that when issuing a mortgage, the buyer must provide the bank with a written obligation to buy an object for which a large amount of money is issued. It is the PDKP that allows you to conclude a loan agreement.

Do I need to register

The document is not subject to state registration, it is not the basis for the transfer of ownership.

Validity

It is not necessary to indicate the validity period of the preliminary contract, however, if it is important for the Buyer (Seller) that the transaction is completed within a certain period, then it is necessary to stipulate that the Main contract must be concluded, for example, within 6 months. How long the termless preliminary contract of sale is valid is indicated in clause 4 of Art. 429 of the Civil Code of the Russian Federation. By default, the document is valid for 1 year.

As soon as the main contract is concluded, the preliminary one becomes invalid.

How to draw up a preliminary contract of purchase and sale of an apartment correctly

When compiling the MPCP, remember the following:

the document must clearly define the subject of the contract;
clauses are formulated succinctly and intelligibly without the possibility of discrepancy.

The agreement looks like a draft of the Basic Agreement, repeating its clauses and subject to conclusion after a specified period of time. By agreement of the parties, certain provisions can be changed.

The contract distinguishes essential and additional conditions.

Essential conditions include:

Information about the parties to the contract: full name, passport data, place of residence. If the contract is drawn up by an attorney, you should indicate her full name, number and the duration of the power of attorney.
The subject of the contract is an apartment. It is required to indicate the characteristics that allow the object to be recognized in the MPCT. This includes: location of housing (city street, house); number of residential and non-residential m2; number of storeys of the house in which the apartment is located; number of rooms; some of the nuances affecting the decision to purchase. You should also indicate the document on the basis of which the buyer disposes of the property.
Property value. It is obligatory to indicate the price, because its change is a reason for canceling the deal.
Settlement method. The parties can agree on payment in cash, on bank transfer, payment by using a safe deposit box or on the condition of attracting mortgage funds or mother capital.
The presence of persons entitled to use the facility. It is necessary to stipulate in the document the time frame for all tenants to deregister and leave the premises.
Contract time. It can be specified or not. It is recommended to clarify by what date the transaction should be completed. Upon its expiration, the contract will be considered invalid.
Guarantees for the performance of the contract. Here the payment of an advance payment or a deposit is stipulated.
Transaction costs. It should be indicated who will bear the costs of notarization, collection of documents. More details:
Penalties. The PDKP indicates what punishment awaits the violator of obligations.

These points must necessarily appear in the agreement, but at their discretion, the parties can detail the agreement by adding additional points to it.

Download a sample of a preliminary contract of purchase and sale of an apartment with a deposit

Sample (template) of a preliminary contract of purchase and sale of an apartment without a deposit

Download a sample of a preliminary contract of purchase and sale of an apartment without a deposit

Is the preliminary contract legally binding

Regardless of whether the contract is notarized, it has legal force and entails legal consequences.

The parties undertake to complete the transaction, however, unpredictable circumstances may cause abandonment of former intentions. Then events develop according to one of the possible scenarios:

If the term of the preliminary contract expires, and neither of the parties has declared its intention to conclude the main contract, the PDKP is considered invalid. If desired, one of the parties can apply with a request to extend the period, and the other can accept the offer or refuse.
If the term has not expired, and both parties are ready to refuse the transaction, the deposit is returned to the previous owner. The Seller and the Buyer draw up a document-agreement on termination of the PDCP.
One of the parties sends to the other side a written proposal to terminate the contract. In this case, the initiator must be ready to incur a loss in the amount of the deposit (or double the amount of the deposit). As a rule, the case comes to court only if it is not possible to resolve inconsistencies of a material nature.

The legal force of the preliminary contract should not be underestimated. Its conclusion and termination is regulated by law. In judicial practice, there are many cases when the owner was forced to sell an apartment if he did not have the funds to return the deposit.

How to withdraw from the preliminary contract

At the stage of signing the contract, each of the parties can simply refuse to conclude it. If the document has already been signed, then there is an opportunity to terminate obligations or change essential conditions (for example, the price of an apartment).

To change the terms, an additional agreement must be drawn up. This is only possible if the other side does not mind.

How to get your money back

When drawing up the PDKP, it is necessary to clearly stipulate whether the Seller (Buyer) is really determined to sell or buy, whether a refusal is possible. If there are some nuances, for example, a counter deal is expected, on which the subsequent sale depends, it is not necessary to indicate the provision on making a deposit.

The purchase of real estate is often accompanied by the conclusion of a preliminary agreement between the parties and the transfer of a deposit as a guarantee if the buyer does not have sufficient funds to pay the full value of the acquired property. defines and regulates the basic conditions for concluding a preliminary contract.

Features of drawing up a contract

The legislation provides for certain conditions for the conclusion of such types of contracts, non-compliance with which may lead to the recognition of the transaction as invalid, namely:

The form of the contract is determined by the main form provided by law for contracts for the sale and purchase of real estate. a mandatory written form has been established for these types of contracts. Failure to comply with the form of the contract entails consequences, namely its recognition as null and void.
The subject of the contract must give a clear idea of \u200b\u200bitself, therefore, the contract indicates not only the legal address of the acquired property, but also the floor on which it is located, year of construction, area and other characteristics.
The conditions on which the contract is concluded and the conditions of the future agreement, on the basis of which the apartment will be transferred to the ownership of the buyer - the full value of the purchased property.
The term of the contract, implying the period in which the parties must conclude the main contract for the sale of an apartment. If the term is not determined by the parties, then, according to it, it sets a term of no more than 1 year. In case of non-fulfillment by the buyer of his obligations, the seller has every right to apply to the court with a requirement to compel the conclusion of a contract of sale and purchase of an apartment forcibly -.

Deposit

3.2. If the Main Contract is not concluded through the fault of the Buyer, the deposit will not be returned by the Seller. The fault of the Buyer is understood as the failure of the Buyer or his representative to appear with a notarized power of attorney or a power of attorney certified by persons in accordance with, on the date specified in, at the place specified in clause 1.3.5. of this preliminary contract.

3.3. If the Main Agreement is not concluded through the fault of the Seller, he will have to return the double deposit to the Buyer, within 3 (three) banking days from the expiration of the period specified in. The Seller's fault is determined in the same way as the Buyer's fault, as indicated in 3.2. of this preliminary contract.

3.4. The return of the deposit by the Seller to the Buyer or the failure of the Seller to return the deposit to the Buyer on the grounds provided, terminates the obligations of the Parties to conclude the Main Agreement.

3.5. The deposit paid by the Buyer in accordance with the amount of the deposit is subject to return by the Seller to the Buyer if, before the deadline for concluding the Main Agreement, the Buyer identifies circumstances as a result of which the transaction between the Seller and the Buyer may be challenged and the sold Apartment is subject to withdrawal from the Buyer. The Seller is obliged to return the amount of the deposit to the Buyer within 3 (three) banking days from the moment the Buyer presented to the Seller a demand for the return of the amount of the deposit.

4. Final provisions

4.1. This preliminary agreement comes into force from the moment it is signed by the Parties and is valid until the parties fully fulfill their obligations.

4.2. This preliminary agreement may be terminated in cases provided for by the current legislation of the Russian Federation.

4.3. The costs of concluding the Main Agreement are borne by:

4.3.1. State duty for registration of the transfer of ownership under the contract of purchase and sale of the Apartment - Buyer.

4.3.2. Payment for rent of a safety deposit box - Buyer.

4.3.3. Payment for checking / recalculating funds - Seller.

4.4. All disputes and disagreements between the Parties under this preliminary agreement do not imply a claim procedure and are subject to consideration in court at the location of the Apartment.

4.5. This preliminary agreement is drawn up in Russian in two copies having equal legal force, one copy for each of the parties.

Signatures of the parties:

SELLER

_____________________________________________________________________________

FULL NAME. signature

CUSTOMER

____________________________________________________________________________

FULL NAME. signature

Receipt

City ________________, ____________________________________ year

I, _________________________, _________________ year of birth, passport ______________, issued on "___" __________, ___________________________, subdivision code _____________, address: __________________________________, received ___ from _______________________ _________________ year of birth, passport ______________, issued "___" __________ __________ ___________________________, subdivision code: ___________________________, subdivision code: ___________________________ a preliminary agreement for the sale and purchase of an apartment from "___" ___________ in the amount of ____________ (__________________) rubles.

The amount of money transferred by me

Full name Signature

I received the amount of money

I have no complaints.

in order to give legal force to a previously concluded oral agreement between the buyer and the seller;
for the guaranteed approval of the price of the real estate object accepted by the parties (meaning the guarantee of the invariability of the amount throughout the entire transaction), this is especially important when the buyer attracts part or the full amount with borrowed funds;
to determine the mutually agreeable side of the date of transfer of the apartment to new owners (release of the property by the previous owners);
determination of the actual state of the apartment, which the previous owner is obliged to maintain (realize) by the time of completion of the transfer and acceptance of ownership;
the financial amount transferred by the buyer to the seller in order to confirm the seriousness of his intentions. When making a transaction involving a deposit, the document must be certified by a notary at the place of registration of the contract. By the way, similar legal operations with the main clause are not required in connection with the identification of the buyer and seller of real estate by Rosreestr employees;
in order to determine the procedure for the return of the deposit to the buyer in the event of circumstances that do not allow the parties to fulfill the full list or part of the obligations reflected in the preliminary agreement.

Transfer of the deposit

A sample of a prepared document that takes into account the nuances of purchasing a home with a deposit in 2019 can be downloaded at.

Purchasing an apartment on a mortgage

Buying real estate with borrowed funds (mortgage) has a number of distinctive features from a transaction without it:

The first difference is that the creditor bank necessarily becomes a participant (one of the parties to the agreement) in the transaction.
The second difference concerns the acquisition of housing in the primary market (in a new building). A representative of a legal entity - a developer acts as a seller in such transactions, which imposes non-exclusive restrictions on the transaction and entails the introduction of a number of additional clauses in the purchase and sale agreement.
The bank assumes the obligations of the guarantor of the upcoming transaction, regardless of the status of the seller of the apartment.
When buying an apartment from a construction company, it is she who dictates the fundamental conditions for concluding contracts of all types of registration.
The mortgage lending agreement is concluded with the buyer for the full cost of the purchased apartment, not taking into account the amount of the loan. The developer company may not require the obligatory transfer of the deposit, if we are not talking about apartments that are in consistently high demand. The amount of the deposit varies from five to ten percent of the cadastral value of the subject of the transaction.

Preliminary contract for the sale and purchase of a share of an apartment

Purchase and sale in the primary market

Contract structure

But, despite the free form of drawing up the document, it is certified by a notary and necessarily reflects information:

on the current calendar date of development and signing of the preliminary contract;
about the geographical location at the time of signing (as a rule, the city of registration is simply indicated);
fully written (without abbreviations) surnames, names and patronymics of all participants in the contractual relationship, in the simplest case - the owner of the apartment and the potential buyer, their handwritten signatures;
information roughly orienting the date (period, time interval) of signing by the parties of the main contract. As a rule, the month or quarter of the estimated readiness of the parties is indicated;
sanctions measures of responsibility applied to the party not fulfilling (evading) the terms of the signed agreement;
method and peculiarities of the procedure for receiving funds by the seller (when making a transaction with settlement on a non-cash basis, the financial details of the parties are additionally indicated);
geographic coordinates (if technically feasible) and the location address of the purchased apartment;
the main technical features of the apartment, which the previous owner is obliged to maintain until the official transfer of the dwelling;
the exact date (it is allowed to indicate the approximate time interval) of the final transfer of the apartment from the previous owner to the present;
permissive or prohibiting clause on the introduction of additional conditions by one of the parties into an already signed agreement;
the price of an apartment in digital form and in words, the amount of the deposit and the conditions for its transfer (as a rule, they choose the offices of lawyers or notaries).

Document validity period

Conclusion

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Preliminary contract for the purchase and sale of an apartment with or without a deposit. Preliminary contract for the purchase and sale of real estate Specifics in cases with the acquisition of a share

Transfer of the deposit

Purchasing an apartment on a mortgage

Preliminary contract for the sale and purchase of a share of an apartment

Purchase and sale in the primary market

Contract structure

Document validity period

Conclusion

Preliminary contract: guarantees

Preliminary contract: risks

Preliminary contract: sample 2017

Download a sample form:

What does a preliminary contract of sale of an apartment give

What is the difference between a preliminary contract of purchase and sale of an apartment from the main contract

Deposit in the preliminary contract of purchase and sale of the apartment

What it obliges, the risks of the buyer, the consequences of a breach of the contract

Risks of entering into MPCP on the primary real estate market

Where to conclude

Is it obligatory to conclude

Do I need to register

Validity

How to draw up a preliminary contract of purchase and sale of an apartment correctly

Sample (template) of a preliminary contract of purchase and sale of an apartment without a deposit

Is the preliminary contract legally binding

How to withdraw from the preliminary contract

How to get your money back

Features of drawing up a contract

Deposit

4. Final provisions

Signatures of the parties:

Receipt

Transfer of the deposit

Purchasing an apartment on a mortgage

Preliminary contract for the sale and purchase of a share of an apartment

Purchase and sale in the primary market

Contract structure

Document validity period

Conclusion

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