How to give a deposit before buying a house. Deposit when buying an apartment: important points. What does a typical deposit agreement look like when buying an apartment
In this publication, I would like to consider such a common phenomenon as deposit for an apartment and talk about how to give a deposit when buying an apartment. All the recommendations received can be applied in other areas of transactions in which the seller requires a deposit, I decided to consider this point specifically on the example of buying real estate, since it is the most common.
So, you want to buy a property, you have chosen a suitable option, agreed with the seller on the price. Further, you always need to go through certain procedures that are necessary for the full execution of the contract of sale. The seller must prepare the apartment for sale - obtain all the necessary extracts from the registers, and the buyer must prepare the necessary amount for the calculation: withdraw money from their accounts, withdraw from business or arrange.
During this time, each of the parties can change their intentions: the real estate seller can find another buyer who is ready to pay more or even change his mind about selling the apartment, the buyer can also find a more interesting property for himself and refuse to make a purchase. So that both the seller and the buyer are protected from these risks, it is customary to give a deposit for the apartment.
What is an assignment?
The concept of a deposit is stipulated in the Civil Code. Be sure to study its rules regarding the deposit for your country. A deposit is an amount of money transferred by the buyer to the seller in fulfillment of his future obligations, confirming the intention to make a purchase.
It should be understood that a deposit is different from a bond, as a deposit is always repayable, while a deposit is not. In its economic essence, the deposit is closer to the advance, but there are differences here, since the advance payment in the event of a breakdown in the transaction must be returned, but the deposit is not.
In fact, the deposit for the apartment confirms the intentions of both parties (I emphasize: both, and not just the buyer!) to make a deal. Since legally the deposit is paid against the future obligations of the parties, in order to give a deposit when buying an apartment, you must already have an agreement confirming the occurrence of these obligations between the parties.
Any deposit agreement, an agreement on a deposit, or, even more so, a receipt will not be able to fully confirm the fact of the occurrence of obligations between the parties. When litigation problems can arise with such documents, since they can be interpreted in two ways. Therefore, ideally, in order to give a deposit for an apartment, it is precisely the contract for the sale of an apartment that is needed, since it is from it that the obligations we need follow. And since such an agreement cannot be concluded without all the necessary documents and, in fact, money, for the sake of which it is postponed, it is best to issue a deposit with a preliminary contract for the sale of an apartment.
The best way to correctly give a deposit when buying an apartment is to enter it into a preliminary contract for the sale of real estate, or to issue a deposit for an apartment by an additional agreement to such an agreement, but in any case, a preliminary contract for the sale of an apartment should be.
At the same time, the contract must clearly indicate what is meant by the deposit, in what amount it is transferred, which confirms the transfer of money (for example, the fact of signing the contract or a separate receipt for receiving money), that the deposit is taken into account as part of the total amount of the transaction, and what further fate deposit if one of the parties fails to fulfill its obligations.
What happens to the deposit if the deal doesn't go through?
The answer to this question is spelled out in the Civil Code and depends on whose fault the real estate transaction fails.
- If this happens through the fault of the buyer (he refuses to buy an apartment for any reason), then the amount of the deposit will remain with the seller;
- If this happens through the fault of the seller (he refuses to sell the apartment for any reason), then he will be obliged to return the double amount of the deposit to the buyer. That is, the seller also risks this amount.
These points should be prescribed when concluding a preliminary contract for the sale of an apartment.
What is the deposit to give when buying an apartment?
The second important point is the determination of the amount of the deposit for the apartment. The size of the deposit, as a rule, is not specified in any legislative documents, therefore it depends only on the direct agreement between the seller and the buyer.
Most often, the amount of the deposit for an apartment is 1-2% of its value, rarely reaches 5% and even less often - up to 10%. This may not necessarily be an exact share, but some fixed round amount. Both the seller and the buyer may, under different circumstances, be interested in a different amount of the deposit.
Let's say the buyer may be interested in a large deposit to reduce the likelihood that the seller will refuse the transaction (after all, then he will have to return twice the amount). That is, with a large deposit, it will be more difficult for the seller to find a buyer who will pay so much more to cover the amount of the deposit. But the seller may also be interested in a large deposit, for example, if he sells real estate at a high enough price, and is afraid that the buyer will not change his mind.
A small deposit always increases the risk that the transaction will not take place, since it is not so scary to lose it.
The larger the amount of the deposit when buying an apartment, the greater the likelihood of bringing the transaction to its logical conclusion.
How to give a deposit for an apartment?
I bring to your attention a kind of algorithm for transferring a deposit when buying an apartment (the most common and desirable option, of course, in different countries and different cases may differ).
1. Agreement on all terms of the transaction. First of all, the seller and the buyer must reach a consensus on all parameters of the future transaction:
- the total value of the property;
- the amount of the deposit;
- the deadline for the finalization of the transaction;
– method of carrying out calculations;
– what costs are incurred by each party;
- the terms of the release of the apartment, etc.
2. Drawing up a preliminary contract for the sale of an apartment. It is best to draw up such an agreement by a notary public (in a number of countries this is generally mandatory). The notary will check all existing documents, determine whether the parties are competent, whether the rights of third parties are violated, etc.
3. Transfer of the assignment. After the contract is signed, for example, directly in the presence of a notary, you can transfer the deposit for the apartment to the seller. If required by the contract, the fact of the transfer of money should be confirmed by a receipt, which until the full settlement and signing of the final contract for the sale of real estate will be with the buyer.
Now you know what a deposit for an apartment is, what it can be, what you should pay attention to and how to properly give a deposit when buying an apartment. I hope that this information will be useful to you.
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Buying an apartment is important step requiring increased attention from the buyer. Choosing a suitable apartment is not easy, but after choosing, you also need to check the selected object for “cleanliness” so as not to get into trouble. unpleasant situation with some kind of deception. If the apartment is selected and checked, then you can proceed to the transaction. But there are situations when such a transaction cannot be completed within a few days, for various reasons. This may be incompletely prepared documents, an insufficient amount, etc. And then an agreement on the conclusion of a sales contract comes into force between the parties, supported by an advance payment from the buyer, or, to put it differently, a deposit.
Today we will talk about how to correctly issue a deposit when buying an apartment, whether it is possible to return the deposit and how to write a receipt for receiving funds. Also here you can download samples of designated documents and consult with our on-duty lawyer online for free.
The deposit when purchasing an apartment is a certain amount in monetary terms, which the buyer transfers to the seller on account of the cost of the property, as evidence of the intention to conclude a deal and ensure all the conditions of this deal. Thus, the deposit acts as a kind of guarantee that the sale and purchase of a certain apartment will be made by the parties under a certain agreement. To the buyer, the deposit guarantees that the apartment will not be sold, and it will wait for him for a specific amount of time, and at a fixed cost. For the seller, the deposit speaks of the firmness of the buyer's decisions to purchase his apartment, as a result of which he is no longer looking for other buyers. The deposit encourages the parties to the transaction to fulfill their obligations.
The deposit is an advance payment for the apartment, and is taken into account in the cost of the apartment after the transaction.
But in our world, you should not rely on a good name and word of honor, because an apartment is not a bag or even a middle-class car, it is a real estate object where, “in which case”, you can lose huge amounts of money. Therefore, an advance payment for an apartment given to the seller must be legally correct.
The amount of the deposit is not legally defined, it is agreed between the parties independently. Most often, a percentage of the total cost of the apartment is taken in the range of 5-10. But everything depends on the agreement. The transfer of the deposit guarantees that the buyer will acquire exactly the apartment for which he paid. This operation must be legally formalized, i.e. draw up a deposit agreement. And here you should not simplify the procedure, and get off only with the seller writing a receipt that he received money for the apartment. Such a receipt, not supported by any other document, does not guarantee the return of the deposit in case of unforeseen situations, and even this is a rather problematic document to challenge in court. A receipt, of course, is needed, but only as confirmation of the receipt of funds under a deposit agreement.
Important points when drawing up a deposit agreement
Before giving the seller an advance payment for an apartment, it is necessary to draw up a deposit agreement. How to arrange? Its form is not legally established, but type specimens you can download below, or ask the real estate agency that draws up this transaction. In any case, when concluding a contract, it is necessary to take into account the presence of the following mandatory points:
- Parties to the transaction: full name, passport details, addresses. The owner of the apartment is indicated as the seller, and if there are several of them, then it is best to indicate all of them.
- All essential information about the apartment. Address, square meters, other characteristics. Be sure to indicate the total final cost of the apartment.
- The amount of the deposit is indicated in the contract both in figures and in words. The terms of the transfer of the deposit, and the method of its transfer are also negotiated. The deposit can be transferred both in cash and through bank accounts. In the first case, a receipt is required, in the second, a bank statement is confirmation. When transferring through a bank, the contract must specify the specific accounts of the apartment owners.
- The obligations of the parties. For the seller, this is an obligation to free the apartment from both residents and registered persons and other similar actions related to preparing the apartment for sale. For the buyer - the obligation to pay.
- Responsibility of the parties. For each of the parties, responsibility for the failure of the transaction is prescribed. The buyer, for any reason, may refuse the property, which threatens him with the loss of the deposit. If the owner refuses the transaction for the purchase and sale of the apartment, then he undertakes to return to the buyer 2 deposits.
- Other essential conditions. This may be, for example, a clause on the division of utility bills, or on the abandonment of furniture, etc.
- Terms of the deal. A mandatory clause of the deposit agreement is strictly defined terms for concluding the final sale and purchase agreement and registering the transaction with the authorized state body.
We can say that the deposit "binds" the buyer and the seller. Of course, there are also force majeure circumstances when the deposit can be returned, which is necessarily prescribed in the contract.
The deposit agreement is written in 2 copies, one - to the buyer, and the other - to the seller, or to one of the sellers, if there are several of them.
Proper drafting of this contract is the key to success. It does not require certification by a notary (although this is desirable), but it is best if the contract is drawn up by a lawyer. This will protect the buyer from pitfalls.
The next mandatory step, after signing the deposit agreement, is a receipt. Of course, if the deposit is transferred in cash.
The receipt is written by the seller, with his own hand, using a ballpoint pen when writing. In case of problems, handwriting expertise will put everything in its place. Whereas it is more possible to forge a short signature. If the receipt is printed using a computer, then this option should be certified by a notary.
A receipt is written at the time of transfer of funds. It is best if there are witnesses from the buyer's side - and not relatives and friends, but strangers.
When writing, the seller must indicate:
- The name of the document is “Receipt”, and also indicate to which deposit agreement it relates (No., number).
- Date of preparation.
- Parties, their full passport details.
- Name the amount of money he receives as a deposit (and nothing else).
- The amount of the deposit is indicated in numbers and in words.
- Description of the property. It is also advisable to include brief characteristics real estate, which were specified in the deposit agreement.
- Seller's signature. It is desirable that it be the same as in the passport.
Important point: if the apartment is owned by several persons, each of them must draw up a receipt in order to avoid further claims against each other. The owners write the same receipts, where only the amount of the deposit changes, which is divided by each in proportion to the shares indicated in the document on ownership of the apartment. If there are minors in the owners, then a parent or guardian acts for him.
If the deposit given to the seller when buying an apartment is not properly executed, this will undermine the financial security of the buyer. And the best option would be to issue both a deposit agreement and a receipt from a notary.
If you cannot figure out on your own how to draw up a deposit agreement when buying an apartment, or you need help in drawing up legally competent documents for the purchase and sale of real estate, then our duty lawyer is at your service.
Return the deposit
Returning an advance for an apartment is not easy either.
Mistakes of apartment buyers when making an advance payment
The article will be useful for any contract where there is an advance payment. Buying real estate is a special case
Lawyer Gordon Andrey Eduardovich
Bar Association of the Moscow Region
Deposit when buying an apartment
The terms of the contract for full or partial advance payment are not at all uncommon. How to return this payment if the contract did not take place? Depends on how the prepayment was paid - making a deposit or making an advance. The deposit when buying an apartment is used less and less. A common practice is to make an advance payment.
Most buyers of apartments and other real estate are sure that making an advance payment and then returning it will not be difficult, because this is not a deposit. Indeed, according to our practice, support of transactions with apartments, part of the transactions for the purchase and sale of apartments ends at the stage of verification. After that, we return the prepayment, and make an advance for another object. Not difficult. But this is because we know to whom, how much, why and how to make an advance payment. Also, we know:
Returning an advance is much more difficult than paying it. Not infrequently, even large real estate agencies find it difficult to return the advance.
AT Getting an advance from a large real estate agency is an art!
A rapidly growing industry information technologies made databases of real estate sales available to the general population of Russia.
Armed internet knowledge and internet experience Numerous apartment buyers are not afraid to conduct complex transactions on their own, for example, for the exchange of apartments, which include several separate purchase and sale transactions. And as for the rental of housing - there are a lot of cases of scams!
Regularly amateur buyers of apartments and tenants become easy prey for dishonest sellers and landlords of apartments. No, not many people lose money or apartments, but loss of an advance or a deposit when choosing an apartment is a widespread practice.
Let's figure out how to get a refund.
Buying an apartment, buying a parking space in an underground parking or country house is known to be a lengthy process. The apartment has been selected. The buyer likes everything: the area, the house, and the view from the window. We agreed on the same price.
We must buy.
This is where the options start.
Prepayment. ADVANCE or DEPOSIT, what to pay?
In certain situations, the return of the advance must be scheduled. For example, in alternative transactions - when the buyer first sells his apartment and then buys another. In this case, the seller takes an advance payment for his apartment and himself makes an advance payment for another. A similar situation may be with the counterparties of the seller. Then 2, 3 and sometimes 4 transactions are made simultaneously.
Accordingly, at the stage of selection and preparation of transactions, each of the apartments will be checked, and the seller who made the prepayment may refuse to purchase the selected apartment, and he will have to return the prepayment for his apartment.
According to the technology of realtors, the choice of an apartment should be completed with its "booking" for a period before the transaction. During this time period, the buyer is preparing to conclude a contract of sale. It is necessary to check the apartment for legal cleanliness, check the seller, prepare for calculations, etc. In alternative transactions, alternative apartments are checked in parallel during this period. This takes time, during which the apartment can be sold to another buyer.
Such a stop "booking" an apartment is usually made out by a separate agreement between the seller and the buyer of the apartment, sometimes this happens orally.
Conversations with numerous buyers of apartments “burned out on advances” showed that everyone understands the need for such a stop and knows about the need to conclude a special agreement. But what kind of contract and its features are known to only a few.
The explanations of the buyers are the same: of course, I am preparing to buy an apartment, but suddenly, a more interesting apartment appears, then I will take the advance and buy another apartment.
Explanations of the sellers: having received the money, I will sell anyway, suddenly there is a buyer at a higher price. Then the money will be returned to the buyer. If the buyer refuses, then I will leave the money, because this is a deposit.
Most buyers consider the money paid in advance, Most sellers - a deposit.
In the situation of an alternative transaction described above, an upfront agreement should be entered into, and a deposit agreement is risky (alternative transactions regularly fall apart during the preparation stage).
Both are right: in some cases it is beneficial to make an advance payment, in others - a deposit
Why is the deposit not profitable for the buyer and for the seller?
In case of unreasonable refusal of the buyer to purchase the apartment, the deposit is not returned.
If the seller refuses to sell, the amount of the deposit is returned in double size.
Thus, the deposit is a "mutually dangerous" contract for both parties.
How to distinguish a deposit agreement?
Any contract - the rights and obligations of its parties.
Deposit - a sum of money issued by one of the contracting parties on account of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution. This is how the Civil Code defines the deposit Russian Federation in article 380.
The main features of the deposit agreement - 1) is concluded only in writing, 2) must contain a condition on the recognition of the payment made by the buyer "to prove the conclusion of the contract and to ensure its performance."
Without exception, all contracts of real estate agencies that we had to deal with when accompanying the purchase of apartments and other real estate were, in essence, contracts of a deposit. You can be sure: if you buy an apartment through the seller's agency, you will be asked to sign a deposit agreement to book an apartment.
It doesn't matter what the name of the contract is. It may be titled simply: agreement, contract, or preliminary contract for the sale of an apartment, or otherwise. The essence of the contract is contained not in the title but in its content.
Read the text of the agreement carefully. As a rule, these are several sheets, and most importantly, it will not be located on the first sheet. Look for phrases:“obligation security”, “the amount paid is not refundable”, etc.
The contract is specifically written in such a way that sometimes even lawyers who specialize in supporting the purchase of apartments find it difficult to correctly qualify the contract. Only the experience of systematic preparation of transactions for the purchase and sale of apartments and knowledge of the working methods of real estate agencies allows you to protect the buyer's money and conclude an agreement on favorable terms for the buyer, or apply another agreement, or significantly reduce the possible risks of the buyer.
Ask for clarification of unclear clauses of the contract. If you do not like something in the text of the contract, demand that these provisions be removed from the contract or set out in the wording you proposed. You will be convinced that not a single agency will change its contract according to your wishes. The position will be tough: "Either sign such an agreement, or we will not book an apartment."
Attention: Since 2015 year, sellers use a new "chip" - payment under an advance agreement is called a "security deposit". And buyers easily sign such an agreement! After all, a security deposit is not a deposit, so the seller will return it.
Wrong, gentlemen buyers! It is no easier to return a security deposit than a deposit.
Especially large brand agencies sin with such tricks.
The second sign of the deposit- a large amount in the contract. In Moscow, depending on the category of the apartment, the amount under the contract reaches 500 thousand rubles.
An advance agreement for the purchase of apartments, or as they are sometimes called an advance agreement or advance agreement.
Gentlemen buyers and sellers, advance contract, how kind or special form contract does not exist!
In the practice of buying apartments and other real estate, several types of advance agreements have been established, which allows us to say that advance agreement- this is a slang expression of realtors, which is understood as a group of types of contracts for the transfer of funds by the buyer in payment for an apartment (or other real estate) that he intends to buy. In particular, the advance agreement contains conditions for paying for an apartment with the obligatory payment of an advance and the conditions for its return to the buyer.
According to the composition of the parties, an advance agreement can be between the seller and the buyer, between the real estate agency and the buyer.
According to the legal structure, this may be a preliminary contract of sale, or a receipt, or another form.
The main feature of the advance agreement is the condition contained in its text on the payment by the buyer of the amount, as an advance, against the payment of the price of the purchased apartment before the conclusion of the main contract of sale. The advance has only the function of payment and proof of intent. A deposit is additionally a security.
It is this difference from the deposit that allows the buyer (advance payer) in the event of non-fulfillment of the obligation by the seller, or on the terms of the advance agreement, to demand the return of the advance payment.
It is possible to return the amount paid under the advance agreement if you have drawn up this agreement correctly, execute the agreement correctly, and follow the rules for the return of the advance. When making an advance, take your time, study the contract offered to you, make corrections and additions to it.
If the seller refuses to return the advance, the buyer has the right to demand a refund in judicial order filing a lawsuit in court.
Typical mistakes buyers make when making an advance payment
Buyers make four types of mistakes:
- Wrong advance agreement
- Wrong execution of the contract
- Wrong return policy
- Incorrectly act when the seller refuses to return the advance
How to conclude an advance payment agreement for an apartment:
A correct contract can only be concluded with an authorized person - the owner of the apartment, or a person acting on the basis of a power of attorney.
The payment under the advance agreement shall be referred to only as “advance payment”.
The contract should not contain any mention of any security of obligations by this payment.
It is convenient (and mandatory) for the buyer to indicate the period for which the advance payment is paid.
At the end of this period, the buyer either returns the advance to the buyer, or a contract for the sale of the apartment is concluded and the advance is credited against the price of the apartment.
How to execute the advance payment agreement for an apartment:
The basic rule of the buyer is that the advance payment must be made in writing as a separate document. How? For example, a receipt from the seller of an apartment.
Common Mistake- conclude an advance payment agreement, then transfer cash. All!
There are no receipts or other supporting documents.
If you make an advance payment to the agency: You are required to provide a power of attorney to the person accepting the advance on the right to accept these funds. Cash are entered into the cash desk, you are provided with an incoming cash order + Cashier's check.
Upon receipt, it is necessary to verify the details of the recipient of the advance payment legal entity and information specified in the advance payment agreement.
If the buyer has other obligations in the contract, the buyer must fulfill them literally, as provided by the contract.
In case of refusal to purchase an apartment, if there is a correct written advance payment agreement, the advance payment is returned.
How to proceed correctly when returning an advance payment for an apartment:
If the advance payment is not returned upon verbal demand, do not waste time and notify the seller in writing of your refusal to purchase an apartment and the demand to return the advance payment. It is advisable to motivate the requirements with reference to the clauses of the contract.
The request is sent by telegram with acknowledgment of receipt.
In case of refusal or silence of the seller of the apartment, the buyer has the right to demand in court the return of the advance payment paid, in addition, the payment of interest on the amount of the advance payment withheld. If you have not set the amount of interest in the advance payment agreement, or the amount of the penalty in case the seller withholds the advance, the court will calculate the interest at the rate of bank interest.
How to return the deposit?
If a deposit has been made for an apartment, the situation is not as hopeless as it might seem. The deposit, by its legal design, implies the possibility of its return. The security function of the deposit, that is, non-return, is possible only if there is a fault of the person who paid the deposit. Therefore, even when concluding an agreement on a deposit, when refusing an apartment, it is necessary to find the actual grounds (shortcomings, legal defects) of the apartment that prevent the purchase. In this case, there is no fault of the buyer in refusing to purchase, and the deposit is subject to return.
Prospects for litigation
Disputes about advances reach the court in cases where the sellers of apartments refuse to return the advance. The arguments of the sellers in court boil down to one thing - an advance agreement is a deposit. The buyer refused to buy an apartment, the deposit is not returned.
And here the question of proof arises in full growth: what kind of contract is concluded: about an advance payment or about a deposit.
A correctly concluded and executed contract will testify in favor of the buyer-payer. On the side of the seller - the obligation to prove to the court that there is a deposit.
Numerous jurisprudence on this issue is not unambiguous. The courts are more supportive of the buyers' position. As it turns out, it is not at all easy to prove that the payment made is a deposit, even if the written form established by Article 380 of the Civil Code of the Russian Federation is observed. Moreover, there are court decisions in favor of buyers when the advance payment was not confirmed by the seller's receipt.
The seller of the apartment should remember that the burden of proving the existence of the deposit lies with him in accordance with Article 380 of the Code. Until proven otherwise, the money transferred is considered an advance, which makes the buyer's position substantially stronger.
There are 3 concepts of the first deposit of funds - this is a pledge, a deposit and an advance. They carry legally completely different meanings, the design of which is also different.
- Deposit– ensuring the obligations of the buyer to the seller (that is, confirmation of his serious intentions regarding the purchase of an apartment), as well as a part of the cost of real estate, an advance payment. Under the terms of the deposit, if one of the parties does not fulfill its obligations within a clearly defined time frame, then it pays a penalty to the injured party . If the obligations are violated by the buyer, then the seller has the right to keep the deposit.
If the seller has not fulfilled the conditions, then the penalty to the buyer is paid in double the amount of the deposit. In any case, the deposit is non-refundable. Unless the transaction took place, and neither the seller nor the buyer are guilty. Then the agreement is terminated, and the funds are returned to the previous owner. - Prepaid expense when buying an apartment, a more mobile way of prepayment. In the event of a failed sale of the apartment, the seller simply returns the advance payment to the buyer in full. None of the parties suffer financially. Download an example of a standard advance payment agreement
Both the advance and the deposit are taken into account as part of the funds from the total cost of housing.
- Pledge has a slightly different character. The buyer pledges property instead of cash, followed by an unconditional obligation to repay the debt. Pledge agreement template
Amount of advance and deposit
The advance does not require a clearly established required amount. This is a part of the cost of the apartment, which will be significant enough for both parties to the transaction, and will also be commensurate with the efforts of the seller or sellers on current matters of moving, searching for a new housing facility, and so on. That is the amount of the advance is a strictly individual concept between the parties to the transaction, although it is customary to adjust the amount within 5-10% of the cost of housing. It is important that the arguments are relevant and supported by the actual situation. Moreover, in any case, the injured party will be able to return the advance payment in full.
The deposit is determined by the parties also on the terms of mutual agreement. The greater the cost and desire to own this particular apartment, the greater the amount offered. Because in percentage it is difficult to deduce the average examples of earnest money.
Registration of pledge and deposit
The advance and the deposit are made out on paper between the seller and the buyer independently. Notary and legal services are not required. Although the presence of witnesses in the preparation and signing of such guarantees is allowed and encouraged.
The deposit agreement contains such positions how:
- real estate price;
- its characteristics - area, number of rooms, features;
- the address of the apartment for sale;
- deposit amount;
- information about the parties to the transaction - full name, passport data;
- deadlines for fulfilling the obligations of the parties-participants.
The written advance payment agreement also specifies the terms of the purchase and sale transaction, the conditions for return, and the penalties for canceling the transaction.
The pledge is often issued with the participation of a notary. The pledge agreement contains many positions, where the obligations of the parties - the pledgor and the pledgee - before the transaction are described. Main provisions of the agreement:
- the distribution of the roles of the parties - the pledgor and the pledgee;
- information about the requirements that the pledge provides, that is, information about the main contract;
- information about the property that is the subject of pledge, a description of the exact characteristics;
- whether the subject of pledge can be replaced, with what conditions;
- obligations, rights of the mortgagor and the pledgee in detail (rights to use the subject of pledge by the pledgee, conditions for the return, non-return of property, etc.);
- in what ratio the pledged property covers the claims;
- what risks both parties bear, as well as responsibilities;
- terms of validity, conditions for change, etc., details of the participants in the transaction.
An excellent additional step would be property insurance against collateral. The transfer of the property itself takes place after the signing of the pledge agreement.
Deposit return
Upon the expiration of the term of the pledge agreement, taking into account the fulfilled obligations of both parties, the previously pledged property passes to the primary owner - the pledgor. You can return the deposit for other reasons if the terms of the contract allow it. In most cases, it all depends on the subject of the pledge. After all, the pledge of various kinds of property, not only real estate, is regulated by separate laws. The legal relations of the parties may not even be regarded as collateral.
Various expenses when buying an apartment
In addition to the basic cost, the buyer has to take into account additional expenses in the process of searching, transacting and registering property for a new owner.
- Consider the cost of drawing up a contract of sale, which will be at least 3,000 rubles or more.
- The following expenses are the state fee for registration of housing, as well as the registration itself.
- If the buyer uses the services of a bank to settle accounts with the seller, commissions and other fees are inevitable. Especially when it comes to mortgage payments, etc., then the bank will also require home and life insurance for the owner.
- Married couples notarize the mutual agreement for the sale and purchase of an apartment. Without this paper, the transaction is impossible.
- The power of attorney (if necessary) for signing the transaction instead of the buyer will be less than 1000 rubles.
- Tax on the purchase of real estate sometimes carries a large waste. Especially if you are buying or selling an apartment that changed ownership less than 3 years ago due to heritage, sale, etc.
Real estate commissions: how not to overpay
You may need real estate or agency services to search and design. Here you need to choose: either time or money. Either you look for an apartment on your own, or you pay money and this process is done for you. Such institutions take on average 3-6% of the cost of purchased housing. In fact, the amount is rather big. In addition, they usually attribute the cost of several parallel services to specialists, therefore it will be more expensive than promised at first. It includes:
- monitoring of the real estate market according to the specified parameters of the buyer;
- inspection of the apartment;
- verification and preparation of documents of the parties to the transaction.
There are very frequent frauds in the real estate market, where agencies with little experience, newcomers participate. Therefore, it is better to contact time-tested companies, although their cost is higher.
All services provided must be specified in the contract between the buyer and the agency.
Therefore, all kinds of duties, taxes, additional costs are paid by the buyer on their own and the realtor has nothing to do with this.
The services to be provided, as well as possible additional services, are discussed with the agent in advance. After that, they sign a paper on cooperation.
It happens 2 types of billing for intermediary services:
- a fixed rate for specific services with any type of real estate;
- a percentage of the cost of housing, a particularly high fee is requested for suburban facilities.
If the agency works on a percentage, then highlight the question of what it will be from the estimated amount, on which the increase in the rate depends. Indeed, in such transactions, even 1% is a serious amount.
Conclusion
As a result, financial and legal issues with real estate transactions are very closely related. Therefore, any financial transactions should be documented at least on a sheet of paper with mutual signatures. This will already become a weighty argument in case of dissatisfaction of one of the parties or litigation.
After a suitable housing option is selected in the primary or secondary market, a potential buyer has to deposit a certain amount as a guarantee of his intentions. If an apartment is purchased at its own expense, then there are no problems with registration, but situations with the use of credit funds often cause concern among the participants in the transaction. Next, consider how the deposit is transferred when buying an apartment in a mortgage.
Deposit and advance as a type of payment under the contract
The deposit is a part of the cost of the purchased apartment, which is paid by the buyer as a guarantee of the conclusion of the contract after a certain period of time. The specific value, as well as the procedure, terms and conditions of the future transaction are established by its participants themselves. Usually this is not more than 100 thousand rubles, but the amount is not limited by law and is determined by agreement between the seller and the buyer.
One of essential functions the use of this financial instrument is the stipulated liability for violation of the terms of the contract by the buyer or seller. Legislatively, this legal term is defined by the Civil Code of the Russian Federation.
Definition of an advance
According to Article 381 of the Civil Code of the Russian Federation, if the form of concluding an agreement is not observed and it is impossible to unequivocally determine that the money paid is a deposit, then they are considered an advance payment. An advance is also a certain part of the cost of the apartment, which the seller pays before the transaction. In simple words This is an advance payment for the purchased housing. It shows the seriousness of the buyer's intentions, but does not guarantee that the latter will not refuse the transaction. The seller is also not obliged to wait for the transaction and can offer the apartment to others. If the transaction did not take place, then the advance must be returned, regardless of the reasons for its failure.
What is the difference between a deposit and an advance
The transfer of the deposit confirms the fact that the buyer assumes a certain responsibility for the fulfillment of obligations. This is also a kind of insurance against the fact that the transaction does not take place due to the fault of one of the parties. In such a situation, the opposite party can count on material compensation.
Important! If the transaction did not take place due to the fault of the buyer, then the entire amount of the deposit remains with the seller, but if through the fault of the latter, then he is obliged to return it to the buyer in double size.
Making an advance does not provide any security guarantees for the parties. In fact, this is an advance payment against future payments. If the transaction breaks down, regardless of which party is at fault, the advance payment is refundable. The only thing that the injured party can count on is to receive compensation for the actual expenses incurred, unless otherwise provided by the agreement. In the case of the purchase and sale of an apartment, the advance payment will be returned to the buyer.
How to draw up a deposit agreement when buying a home with a mortgage
The deposit agreement should be drawn up taking into account the fact that housing is purchased with a mortgage. For the buyer, this nuance is of fundamental importance, since the bank counts the deposit as a down payment, and if the mortgage is refused, it remains possible to return it on the basis of clause 1 of Art. 381 of the Civil Code of the Russian Federation. It states that if the obligation is terminated due to the impossibility of its performance, then the deposit is subject to return. At the same time, there is no clear definition that a loan refusal falls under this wording. Therefore, in the deposit agreement, it is necessary to specify the conditions for the return in the event of a negative credit decision of the bank.
In addition, when signing the contract, it is necessary to check the presence of the following information in the text:
- Name of all property owners;
- data of passports of all participants, address of residence;
- the cost of the apartment;
- deposit amount;
- descriptions specifications apartments (address, area, floor, etc.).
If necessary, the agreement should be supplemented with a clause specifying any details that are significant to the participants. The document is drawn up in 2 copies. Notarization is not required. A sample contract on a deposit can be downloaded from the link.
Important! After the transfer of the deposit on both copies, the seller must write in his own hand that he received a certain amount (in figures and words, the name of the currency), full name, date and signature.
Registration procedure
Having agreed on the key terms of the transaction, the parties sign an agreement, taking into account the agreements reached. The buyer pays a deposit in the agreed amount and receives a receipt that the seller has received the money. Distinctive feature transactions of this kind when buying a home on a mortgage - the need to provide copies of the contract and receipts to the bank. Funds can be transferred by bank transfer, in which case the bank will require a payment order. A sample receipt can be downloaded.
Advantages, disadvantages and possible risks
Consider what gives the application of the deposit. For both parties, this is a certain guarantee that at the last moment the deal will not fail due to the fact that one of the parties simply changed its mind about concluding it. This is especially important in the case of a mortgage, as it is sometimes a long and laborious process of collecting documents. In turn, for the seller, the failure of the transaction may be fraught with the loss of another potential buyer and delaying the sale.
For conscientious participants in the transaction, the risks are minimal. The main problem when buying an apartment on a mortgage is the bank's refusal to issue a loan (more details:). Usually housing is selected in parallel with the application, and miss good property during the consideration of its bank does not want to. The seller pays the deposit, and after that the bank refuses the loan. Refunds can be a problem if this situation is not foreseen in advance. Next, we will consider popular questions regarding the use of a deposit when buying a home with a mortgage.
If the bank refused a mortgage
When purchasing housing on a mortgage, any actions must be taken taking into account the fact that the bank will refuse to issue it. This point is best discussed in advance with the seller and reflected in the agreement on the transfer of the deposit. There are two possible scenarios for the development of events in case of refusal of a mortgage:
- The agreement was signed before the bank made a decision to issue a mortgage loan. In this case, the seller may refuse to return the deposit, arguing that this is lost time and the loss of other buyers. If this situation is not specified in the deposit agreement, the buyer will have to try to claim the money through the courts.
- The bank rejects the mortgage transaction if the seller has any problems with the documents for the apartment. In these circumstances, the buyer has the right to demand a double refund of the deposit. More details: .
How to use the deposit as a down payment
The buyer can use the deposit as an initial fee. But in practice, the amount of the deposit is much less than the amount required by the bank. The credit institution must be notified of the settlements made and provide documents confirming the fact of the transfer of the deposit: a preliminary agreement and a receipt.
At the same time, in the contract of sale, it is necessary to specify in detail from what means the buyer will pay the full cost of the apartment:
- own funds;
- deposit;
- mortgage loan.
Thus, the deposit can and should be taken into account when settling with the bank.
Buying through a real estate agency
Making a transaction through a real estate agency does not fundamentally change the procedure for signing an agreement on the transfer of a deposit. The parties enter into an agreement in the presence of an agent, and the drawing up of a receipt takes place in the same way. By agreement of the parties, the amount of the deposit may remain for temporary storage at the real estate agency. In this case, the representative of the agency provides a receipt for accepting funds.
In the modern real estate market, both financial instruments appear - both an advance and a deposit. The choice of one or another means of prepayment in most cases depends on the seller. At the same time, he does not always agree to accept a deposit - after all, the mortgage transaction is long-term, and at any moment a buyer with cash may appear. Therefore, in the case of a mortgage, the presence of a deposit is more beneficial to the party purchasing the apartment, especially if it is transferred after the bank makes a positive decision on the loan.