Deposit agreement (between individuals)

Advance agreement

An advance is a preliminary payment under a purchase and sale agreement . Most often it is found in preliminary agreements, when the parties only confirm their intentions to conclude the main deal in the future.

Unlike a deposit, an advance payment has only a payment function - by its nature it is just a regular prepayment without any additional legal consequences. It does not force anyone to enter into a major deal in the future.

If the main transaction does not take place for any reason, the advance payment is returned to the buyer in a single amount. The seller does not have the right to withhold the advance amount, citing any “security” nature of the payment. If the seller refuses to return the money, the buyer goes to court to recover unjust enrichment and damages.

Sample contract

The advance agreement is concluded in simple written form. Externally, this can be either a separate document called the “Advance Advance Agreement” or a clause in the preliminary (or even main) apartment purchase and sale agreement.

In the contract, the advance payment condition can be written as in the example:

“The Buyer pays the Seller an advance in the amount of ___________________ (____________________) rubles. The advance payment is paid in cash at the time of signing this preliminary agreement, for which the Seller issues a receipt to the Buyer. advance amount is counted towards payment for the apartment under the main purchase and sale agreement.”

Please note that prepayment is referred to in the text as an advance payment. Advance agreement is possible

Read about the specifics of drawing up a preliminary agreement for a mortgage here

The procedure for depositing money by receipt

As a rule, the advance payment is made at the time of signing the preliminary contract. Depending on the situation, it can be transferred to the seller at any time before the actual transfer of the property. After the transfer of real estate, the payment will lose its preliminary nature; in fact, it will already be considered as the main payment.

Write down in the contract the exact deadline for making the advance payment (for example, “within 2 days from the date of signing the preliminary purchase and sale agreement” or “by November 15, 2020”).

Upon transfer of money, the seller issues a receipt to the buyer. The receipt is the only proof of the advance payment, so do not delay in preparing it . The receipt indicates:

• date and place of drawing up the receipt;
• names of the parties;
• against what obligation the money was received;
• amount in numbers and words;
• indication of no claims.

The seller signs the receipt with his own hand, after which the original is handed over to the buyer.

Most often, the advance is made in cash. However, the law does not prohibit other types of payments, including non-cash bank transfers or using an intermediary (bank or notary).

What else should you pay attention to in the preliminary contract?

Some sellers try to circumvent the law by writing in the contract a condition approximately as follows:

“If the main purchase and sale agreement is not concluded due to the fault of the Buyer, the advance amount paid is not subject to return by the Seller to the Buyer”

Thus, the seller tries to unilaterally give the advance the force of a deposit, but in such a way that it protects the interests of only the seller. Such a position does not stand up to criticism in court if it comes to trial. The advance amount will still have to be returned.

Draw up a deposit agreement

Advice from lawyers:

1. How to correctly draw up a deposit agreement.

1.1. Better contact a lawyer. Especially when it comes to real estate.

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2. If a receipt was drawn up for the deposit of a plot for the purchase of a land plot. The purchase and sale agreement and the deposit agreement were not drawn up. There was only a handwritten receipt. Is it possible to recognize the deposit as an advance through the court?

2.1. If the receipt does not indicate that this amount is a deposit, then accordingly it cannot be recognized as such, and the transferred funds will be an advance.

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3. I am selling an apartment, there is only one owner. There are no encumbrances, everything has been discharged. The buyer buys with a mortgage. A deposit of 50,000 rubles was paid. in words, haven’t signed anything yet. But in order for the mortgage to be given, the buyer asks me to sign a receipt confirming that I have received 200,000 rubles. Well, accordingly, the amount in the receipt and in the purchase and sale agreement will be 200,000 more. I’m confused about signing this paper for the bank, is there any way I can protect myself and draw up an additional agreement?

3.1. Do not sign documents that differ from the actual circumstances. Complete the transaction either with a realtor or through a notary. Banks also prepare good documents.

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4. Is the agreement on a deposit for the purchase of a plot (between me and the seller) valid if it is drawn up only for the husband (the seller). And the plot belongs to both husband and wife.

4.1. Hello. According to Article 35 of the RF IC, consent is required.

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4.2. The agreement had to be drawn up taking into account the two owners.

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5. We drew up an agreement on a deposit for the purchase of a plot. The owners of the site are husband and wife. In the deposit agreement, one husband acts as the seller and is signed only by him. Now the sellers are refusing to sell the plot, although the full cost of the plot has already been paid. They refer to the fact that the wife is already against the sale, what to do in this situation.

5.1. Good evening, it was necessary to request consent in notarized form from the spouse, now you need to demand a return of the money as unjust enrichment, if they do not meet halfway, then through the court.

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5.2. The easiest way is to return the money and terminate the agreement if the main contract is not concluded.

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6. I want to terminate the contract for the sale and purchase of real (property) rights for the temporary use or lease of real estate with an agreement to make a security payment (deposit). 14 days have not passed since the date of conclusion of the contract. How to make applications correctly?

6.1. Hello, No one on the site will explain how documents are drawn up. Lawyers have been studying this for many years. They can compile it for a fee. To answer the question of how to terminate a contract, you need to read the terms of the contract. I wish you good luck and all the best!

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6.2. This issue requires more work with documents, and therefore does not apply to a free consultation. Select a lawyer on the website and contact him in a personal message.

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7. Tell me, we left a deposit in the store for a wedding dress in the amount of 1000 rubles and drew up a written agreement on the deposit, and a day later we changed our minds about taking it and want to return 1000 rubles, but they refuse us, what should we do?

7.1. They refuse rightfully! A deposit is recognized as a sum of money given by one of the contracting parties in payment 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. The agreement on the deposit, regardless of the amount of the deposit, must be made in writing. According to Part 2 of Article 381 of the Civil Code of the Russian Federation. If the party that gave the deposit is responsible for failure to fulfill the contract, it remains with the other party.

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8. I decided to rent an apartment. The owner of the apartment sent me his passport details and ownership of the apartment. The data agrees. He also asked me to make a deposit (prepayment), which I did. To give me peace of mind, he drew up a deposit agreement. Everything is indicated there in detail to whom and how much. The question is: where should I go with this agreement?

8.1. It's not clear what the question is? If you have paid a deposit, you have rented an apartment, there is a rental agreement, in this case you do not need to do anything. And if the rental agreement is not concluded, then submit a claim and take a deposit in the 2nd amount.

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8.2. If you require document analysis, you can order this work from the site’s selected lawyer in personal correspondence (prices for services vary).

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8.3. Good afternoon, does the deposit agreement indicate what you are entering for and other data characterizing the rental agreement for residential premises?

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9. The buyer threatened me - first I sign the purchase and sale agreement, then I give him the keys to the apartment and after that he gives me the money. He drew up the deposit agreement and insisted on signing it. He had the money, I had the documents ready, there was no need for this agreement. After threats, I was forced to send him a termination agreement and returned the deposit via Russian Post.

9.1. What is your question?

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10. I am selling an apartment with a mortgage. The realtor drew up a deposit agreement specifying the rights and obligations of the parties to a third party. And in the DCP he indicated those. who takes out the mortgage? Those. others. The realtor said. That this is allowed, which I very much doubt. Is the realtor right?

10.1. Hello! To answer your question objectively, you need to see the documents. However, in all contracts the parties “seller” and “buyer” must be the same.

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11. I decided to buy a house, it is mortgaged to Kaspi Bank. I sold an apartment, took out a loan, drew up a deposit agreement with the seller, and gave him 70% of the cost of the house. The deadline has already passed, 30% is in my hands, but the deal did not take place, since the seller spent the money, but the house is still pledged. It seems that I live in a house, but according to the law it does not belong to me, I want to pay off, draw up a purchase and sale agreement and live in peace. What do i do?

11.1. Hello! You need to go to court. According to the law, in the case of a deposit agreement, if the party that received the deposit is responsible for failure to fulfill the obligation, it is obliged to pay the other party double the amount of the deposit. Moreover, the party responsible for failure to fulfill the obligation is obliged to compensate the other party for losses, taking into account the amount of the deposit, since the contract does not provide otherwise. The seller, having received the money, spent it instead of paying off the debt to the bank and removing the encumbrance in the form of collateral. The failure to fulfill the obligation to transfer the house to you arose as a result of the actions of the seller, and accordingly you can demand that he pay you double the amount of the deposit.

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11.2. Hello! You need to go to court.

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12. The seller refuses to return the deposit, on August 15, an agreement on the deposit for the purchase of the house was drawn up, the deadline was set on September 15, on October 10 we were told to wait another month, i.e. until November 10 due to some problems in collecting the necessary documents because We can’t wait any longer, we asked for the deposit to be returned to us, we were refused, where to apply for the refund of the deposit.

12.1. You can only forcibly recover money in court, so you should go to court and file a corresponding statement of claim. Article 131 of the Code of Civil Procedure of the Russian Federation.

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13. We are going to take part in shared construction and the developer is the Kirov organization Kommunservis LLC. Yesterday we entered into a reservation agreement and paid the deposit. Today we are planning to go and pay the full amount and fill out all the paperwork, how we need to correctly draw up an agreement on shared construction so that we are not deceived and how to find out if the company will go bankrupt.

13.1. Good afternoon First of all, look at the reviews, you can also look at the information on the website of the arbitration court to see if this organization is the defendant, so when entering into a contract, carefully look at the terms and conditions, and most importantly, the terms. It is also important to look at what stage of construction.

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13.2. This is correct in accordance with the norms of the Civil Code. In fact, such issues cannot be resolved in absentia, as can be said correctly... It is better to make a deal with a lawyer.

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14. We sold a room through MK, submitted documents to the registry office. chamber, then to the PF, in the end the PF refused due to lack of funds for mat capital. The buyers have deposited money, the purchase and sale agreement and receipt have been drawn up, should we give the money to the buyer? Documents from reg. the chambers are already ready and in the hands of the buyer. The word deposit is not specified in the contract. Is it possible to draw up an agreement to terminate the contract, where it is stated that the deposit will not be returned? In what form?

14.1. Hello! The deposit agreement must be drawn up in writing, which specifies all the necessary and essential terms of the deposit agreement.

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14.2. You are drawing up a termination agreement, so the terms must be agreed upon by both parties. If the agreement does not indicate anything about the deposit, then you cannot write it down in the agreement, but you can indicate it, unless, of course, the Buyer agrees that in connection with the termination of the purchase and sale agreement due to the Buyer’s fault, such and such an amount is returned to the Buyer. The remaining funds remain with the Seller as compensation for losses.

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15. We are selling an apartment, we found buyers, drew up a preliminary agreement, took a deposit from them, but did not formalize a separate agreement on the deposit! They wrote down the amount and the word “deposit” in the contract! Without explaining the reasons, the buyers refused the deal and demanded their money back! Should we return them? Thank you in advance!

15.1. If you have the word “deposit” written down, then under such circumstances you are not obligated to return the deposit. Advise them to go to court.

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16. We are buying an apartment and the owner asks for a deposit. We decided to draw up a preliminary contract and a deposit agreement. How and where to draw up these documents correctly? Who pays for paperwork?

16.1. The deposit agreement gives the seller the right to keep the amount if you later refuse to buy or sell. On the other hand, if the seller refuses, you will have the right to demand double the deposit. The preliminary contract and the deposit agreement are valid in simple written form. Issues of distribution of costs for registration of a transaction are determined by the parties and are indicated in the agreement, as a rule. If you do not specify, you will be required to carry them in half.

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17. We are buying an apartment with a mortgage, we have paid and drawn up an agreement on the deposit. If the bank does not approve the apartment, will the deposit be returned?

17.1. The deposit is not refundable, which must be specified in the terms of the contract. The advance is returned.

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18. In what case will the seller not be able to block or cancel the registration of a garage sale and purchase agreement at the MFC. If the money is paid in part and a deposit agreement is drawn up, or paid in full?

18.1. He will not be able to cancel on his own through the MFC. Only by going to court if you do not pay the cost.

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19. We concluded a preliminary agreement for the purchase and sale of an apartment and drew up additional agreements. agreement to pay a deposit of 50,000 rubles. One of the apartments in the building where we want to buy an apartment has a crack in the wall and problems with water. Is this a force majeure event and can I get my money back? There is a crack in the cladding of the neighboring house and now a commission is inspecting the houses and conducting an examination, but there are no results yet.

19.1. Hello. No, this is not force majeure. But they are required to return the money if the examination confirms the presence of deficiencies in the work.

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20. We found a developer to build a house. He undertakes to build and sell us a house along with a plot. A deposit agreement has been drawn up, but there is no main purchase and sale agreement yet. We ask the developer to show the design of the planned house and receive a refusal. They say he doesn't exist. I understand that this simply cannot happen. Is it so. What are my rights? What should you base your requirements on?

20.1. If your contract does not provide for it, the project must be drawn up separately.

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Due to the fault of the seller, the purchase and sale transaction will not take place. We have previously drawn up a deposit agreement.

We entered into an agreement on a deposit, but the purchase and sale agreement has not yet been drawn up, we changed our minds about buying an apartment, can we return the deposit amount.

Is it possible to draw up a deposit agreement without a preliminary contract? Will such an agreement have legal force?

We are selling an apartment; we found buyers, drew up a purchase and sale agreement, and a deposit agreement.

What agreement must be drawn up (on an advance or on a deposit) when purchasing real estate by a legal entity (the seller is an individual)?

What agreement must be drawn up (on an advance or on a deposit) when purchasing real estate by a legal entity (the seller is an individual)?

I am buying a one-room apartment. A deposit agreement was drawn up to guarantee that the transaction would not be rejected by both parties.

I signed an agreement for a deposit of 100,000 rubles. The realtor took the money. A preliminary agreement was drawn up later for a military mortgage in which there are no clauses about a deposit,

An agreement for a deposit of 50,000 was drawn up with an alleged representative of the seller.

We want to buy a room. Drawed up an agreement on the purchase and sale agreement. They gave the seller a deposit.

I chose a plot to purchase, came to the agency and the seller and I drew up an agreement on the deposit, I paid 50 thousand.

Deposit for purchase and sale

A deposit (Article 380 of the Civil Code of the Russian Federation) is a more serious legal instrument. This is not just a preliminary payment, like an advance, but also a measure that encourages the party to conclude a deal in the future.

It happens that the parties cannot, for some reason, conclude the main deal immediately. To ensure that efforts to agree on conditions are not in vain, a deposit is used to maintain the agreements reached.

Its peculiarity manifests itself in the event that the main transaction is never concluded:

• if the parties agreed not to conclude a transaction or if its conclusion is objectively impossible, in other words, if everyone acts in good faith, the deposit is returned to the buyer in a single amount;
• if the deal fell through due to the fault of the seller (for example, he changed his mind, found another buyer) - the deposit is returned to the buyer in double amount;
• if the deal fell through due to the buyer’s fault (for example, he decided to buy another apartment or simply changed his mind) - the deposit is not returned.

The deposit is a financial incentive to conclude a deal. The larger the deposit amount, the greater the incentive.

The amount of the deposit and how to arrange it correctly

The terms of the deposit are drawn up in writing. This can be either a separate “Deposit Agreement” or a clause in the preliminary purchase and sale agreement:

“To ensure the conclusion of the main purchase and sale agreement, the Buyer pays the Seller a deposit in the amount of ___________________ (____________________) rubles. The deposit is paid in cash at the time of signing this preliminary agreement, for which the Seller issues a receipt to the Buyer. deposit amount is counted towards the payment for the apartment under the main purchase and sale agreement.”

Please note that the text contains the word “deposit” and also emphasizes the security nature of the payment. If you do not directly refer in the text to the fact that the prepayment is a deposit (the word “deposit” or a reference to Article 380 of the Civil Code of the Russian Federation), the court will consider such payment an advance.

The deposit is made in the same way as described above for making an advance payment. The seller issues a receipt on receipt of money, the original of which is kept by the buyer.

The amount can be any - by agreement of the parties.

A sample deposit agreement can be obtained from this link.

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How to draw up a deposit agreement correctly

Serious attention is paid to the execution; it is impossible to get by with a simple receipt for the receipt of funds; failure to draw up a full-fledged agreement may lead the court, in the event of a trial, to believe that it is an agreement on an advance payment. As a result, rights to compensation are lost.

• the document may be part of the preliminary agreement or drawn up separately;
• the parties can formulate a mixed document, calling it a deposit agreement;
• the details of the parties to the transaction are recorded as completely as possible (last name, first name, patronymic, information identifying the passport - who, when, where issued it, series, number);
• the cadastral data of the purchase object is recorded;
• the amount of both the entire transaction and the advance payment is written down in both numbers and words
• questions of responsibility of each of the parties, it is not enough to write the phrase “according to civil law”, it will not be useful, it is necessary to spell out who will owe whom how much if they do not fulfill their part of the deal;
• Liability automatically presupposes the resolution of the issue of losses, unless the parties have previously refused compensation;
• The signatures of the parties and the date of signing are affixed.
• The deposit must be drawn up exclusively in writing, it does not matter whether the contract is written by hand or typewritten, the transfer of funds without drawing up an agreement is considered an advance.

The parties decide independently whether to involve a notary or not; the law does not oblige this.

If the preliminary agreement is actually signed, the nuances associated with changing the registration of the former owners and all those who had the right to live in the apartment with him are prescribed.

In a case involving shared ownership, or involving a married person, a power of attorney is required, giving the authority to act to one representative from the group (buyers and sellers, respectively).

In the case of sellers, the spouse must take part in the transaction, or consent to the sale of real estate is written on his behalf and certified by a notary. Buying housing registered in the name of one of the spouses when he was already married is risky, despite only one of them being mentioned in the documents, because the second may have rights to a share in the property.

Passports usually have marks about marital status, although passports are lost and remade without some time stamps from the registry office.

What to do if the main deal falls through?

Further actions depend on whose fault the main agreement was not signed.

Buyer actions

If the main transaction fell through due to the fault of the seller, first write him a claim demanding the return of the deposit in double amount. In your claim, refer to the preliminary purchase and sale agreement (or deposit agreement), the deadline for concluding the main transaction and the reasons why the transaction fell through. After 30 days from the date of receipt of the claim by the seller, feel free to go to court with a statement of claim.

If the deal fell through due to your fault, you cannot demand the return of the deposit. Even if you go to court, your claim will be denied.

Seller's actions

If the deal doesn't go through due to the buyer's fault, you simply keep the deposit. In the event of a legal dispute, refer to the circumstances why the deal fell through.

If the deal falls through due to your fault, return double the deposit to the buyer. If you do not do this voluntarily, the buyer will go to court, and then you will additionally have to pay the plaintiff's legal costs.

The most important point in the contract is to determine the legal nature of the payment . The legal consequences of failure to conclude the main transaction will depend on which payment you choose. If the main purchase and sale agreement is successfully concluded, there is no difference between the advance payment and the deposit - the prepayment amount will be taken into account during the final settlements.

Grounds for termination of the contract

The preliminary agreement may be terminated for the following reasons:

• within the time period specified in the document, the parties did not attempt to conclude the main agreement;
• errors in the details of the parties, description of the apartment, etc. automatically cancel the agreement;
• termination at the initiative of one of the parties is possible only with the consent of the second party, otherwise it can go to court to force the fulfillment of the terms of the contract;
• mutual refusal with drawing up an agreement to terminate the preliminary contract for the purchase and sale of residential premises.

A preliminary agreement is a serious document that obliges all parties to the transaction to fulfill all the conditions specified in it. Therefore, read them carefully and consider the consequences before signing.

Remember

1. If you do not state the advance (deposit) condition in writing in the documents, the seller will not have the right to require the buyer to make any advance payment at all.
2. Precise wording in the documents will avoid ambiguity during the transaction, as well as if a legal dispute arises.
3. If the contract does not specify the name of the payment, but there is a reference to Art. 380 of the Civil Code of the Russian Federation – we are talking about a deposit. If there are no instructions, the prepayment is considered an advance.
4. The agreement on the deposit (advance payment) can be drawn up as a separate document, but it is easier to include the condition in the preliminary agreement.

Form of deposit agreement when purchasing an apartment

Since real estate transactions involve large sums of money, all transactions should be documented. This also applies to prepayment. In case of litigation, documentary evidence is necessary to prove your case.

The sample deposit agreement includes the following points:

1. Name of the form.
2. Place and date of signing the agreement.
3. Seller details: full name, date of birth, passport, registration address.
4. Buyer's details: full name, date of birth, passport series and number, place of registration.
5. Link to the relevant legislative act (Articles 380, 549 of the Civil Code of the Russian Federation).
6. The amount of the transferred amount and its purpose (be sure to indicate that the funds were paid as a deposit).
7. The final cost of the property and its detailed description: location, cadastral number, total area.
8. Responsibility of the parties.
9. Duration of the agreement.
10. Number of copies.
11. Details of the parties and their personal signatures.

By signing the contract, the seller and buyer confirm that they have reached agreement on the points of the deposit agreement. The form is prepared in two copies, one for each participant.

Important! The agreement specifies the penalties that will follow if the conditions are not met.

When the contract is violated by the owner of the premises, he is obliged to return the deposit in double amount. If he refuses to do this, the other party has the right to demand funds through legal action. If the contract is violated by the buyer, the seller keeps the deposit.