If a property is being sold, the buyer and seller may agree to close the deal at a later date. However, the property owner wants to be sure that the agreement will be concluded. For this purpose, a deposit is provided. To regulate legal relations, the parties draw up a deposit agreement when purchasing an apartment . For a document to be recognized as valid, it must be executed correctly. Certain information must be reflected in the paper. We will talk further about how to correctly prepare an agreement on deposits, the procedure for completing the procedure, the nuances of terminating the agreement and other important features.
Deposit and advance are different
Wanting to enter into an agreement on a deposit when purchasing an apartment, the parties very often confuse this payment with an advance payment. It is necessary to understand that they differ significantly from each other. If we are talking about an advance, it performs neither guaranteeing nor insuring functions.
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For example, if the seller who received the cash decides not to go through with the deal, he can simply return the advance and sell the property to someone else. The amount is also refunded in a situation where the sale failed due to the fault of the buyer. If a deposit agreement was concluded, the seller would be able to keep the entire amount. When it comes to an advance, there is no such opportunity.
If both parties want to provide an advance, a written agreement is not necessary. When the deposit amount is transferred, an agreement is always necessary.
Agreement of intent to enter into a supply contract
Party-1 and Party-2 entered into an agreement. The parties agreed to prepare and subsequently conclude contracts for the supply of goods.
AGREEMENT OF INTENT to conclude contracts for the supply of goods
________________ "____"__________________ city ______________________________________________________________________________, (name of the organization) hereinafter referred to as “Party-1”, represented by the General Director _____________________________________________________________________________, (last name, initials, position) acting on the basis of _________________________________________________, (charter, regulations, power of attorney) and _____________________________________________________________________ (name of the organization) hereinafter referred to as “Party-2”, represented by the General Director _________________________________________________________________________, (last name, initials, position) acting on the basis of _________________________________________________, (charter, regulations, power of attorney) based on the results of the negotiations, concluded the following Agreement:
1. SUBJECT OF THE AGREEMENT
1.1. The parties agreed to prepare and subsequently conclude contracts for the supply of _______________________________, hereinafter referred to as the “Goods”, under which Party-1 will act as the buyer, and Party-2 will act as the supplier of the Goods. The quantity of the Goods, the schedule of payments and deliveries and other conditions for specific deliveries of the Goods will be determined by agreement of the parties in the concluded supply agreements. 1.2. Party-1 agrees with Party-2 on the total amount of supply contracts. The cost of the Goods is determined in a specific supply agreement, but cannot be less than the cost specified in this letter of intent. 1.3. The product after its acquisition becomes the property of Party-1. Ownership of the Goods will pass to Party 1 from the moment specified in the delivery agreement. 2. TRANSACTION PRICE
2.1. By prior agreement between the parties, the cost of _________________ is _______________ rubles, (in words) including __% VAT - ____________________ rubles. (in words) 2.2. Payment for the Goods will be made by non-cash transfer of funds in the manner and on the terms specified in the supply agreement. Mutual settlements between the parties will be based on the principle, the essence of which is the advance payment of ____% of the cost of the ordered batch of Goods. By agreement of the parties, the amount of the advance payment may be higher than ____%. The remaining amount is transferred after _______________. 2.3. Upon completion of settlements between the parties, the transfer of the Goods will be carried out in the form of drawing up an acceptance certificate - transfer of the Goods at the warehouse of the _____ Party and signing it by authorized representatives of the parties. 2.4. Delivery of the Goods is carried out at the expense of the Party - _______ by _______________________________________________. 2.5. By agreement of the parties, subject to certain conditions specified in Appendix No. 1 to this agreement of intent, Party 1 may be given a discount in the amount of _________% of the cost of the Goods.
3. TIMELINE FOR IMPLEMENTING THE INTENTIONS OF THE PARTIES
3.1. This Agreement is preliminary and contains the basic terms of supply contracts that will be concluded in the future. 3.2. The specified Agreement remains in force until “___”_________________ ___. The ____ Party undertakes, until the specified date, not to conclude with other partners a similar Agreement or a supply agreement for the Goods specified in clause 1.1 of this Agreement.
4. FINAL PROVISIONS
4.1. This Agreement comes into force from the moment it is signed by the parties and is valid until “____”______________ ____ 4.2. The agreement may be terminated at the initiative of either party with mandatory notification to the other party no later than ______________ before the date of termination. 4.3. The Agreement is drawn up in Russian in two copies having equal legal force, one copy for each of the parties.
5. DETAILS OF THE PARTIES
Side-1: ________________________________________
Side-2: __________________________________________
6. SIGNATURES OF THE PARTIES:
Side-1 _________________________________ (________________) (last name, initials) (signature)
Side-2 ________________________ (________________) (last name, initials) (signature)
Rules for drawing up a deposit agreement when purchasing an apartment
In 2020, an agreement for a deposit when purchasing an apartment with a mortgage is drawn up if the parties agreed to transfer such a deposit payment during the process of concluding the agreement. The document becomes legally binding when signed by both parties.
There is no need to notarize the agreement. However, the parties can carry out the procedure at their own request. Funds must be provided at the time of signing the agreement or after completing the procedure. It all depends on the agreement of the parties.
The text of the contract must necessarily reflect that the amount provided is a deposit and not an advance. There should be no errors in the agreement. It is better to use a standard form.
For an agreement to be considered valid, it must reflect the following data:
- information about the parties to the agreement;
- date and place of preparation of the agreement;
- information about the provision of a deposit in the established amount;
- price of the premises and its characteristics;
- method and procedure for transferring the amount;
- rights and obligations of participants in the procedure;
- procedure in case of failure of the sale, failure to fulfill the provisions of the main contract or the occurrence of force majeure;
- date of entry into force of the agreement;
- duration of the contract and the possibility of its extension;
- the period within which the contract for the purchase and sale of real estate must be concluded;
- number of copies of the document;
- signature of the participants with transcript.
The document is prepared in at least 2 copies. They are received by the seller and buyer. If the property is sold by several persons, a separate copy of the contract is drawn up for each of the sellers.
Sample agreement on deposit when purchasing an apartment
Ways to limit liability by determining the type and content of the contract
Unconditional adherence to the terms of the public offer
To give legal force to the disclaimer included in the text of the agreement with the user, it is necessary to confirm that the user has read and accepted its terms. For this purpose, the mechanism for concluding contracts provided for by law is used. As we indicated above, posting the User Agreement on the website of an Internet service is aimed at concluding an agreement with the user. Section 1 of the user agreement template is aimed at providing a mechanism for legally consolidating the relations of the parties under the terms of the User Agreement without any reservations.
Replacing services with a license to use software and hardware
This issue is worthy of a separate discussion within the topic of using a service license under a SaaS agreement. Therefore, we will not delve too deeply into its consideration here. Let us only note that the risks of using a licensing scheme exist for paid services and are associated with the possibility of requalifying the agreement as a contract for the provision of services for a fee. If the owner of the service applies VAT benefits in connection with licensing the software of such a service, requalification of the transaction will entail the imputation of arrears for VAT (18% of the sales amount), penalties and tax liability (a fine of 20% of the amount of arrears). The user agreement template in question is designed for free services, so the owner does not have the above tax risks. At the same time, it receives additional benefits in reducing civil risks, since the results of creativity, which by law include sites as a whole and included in their copyright, are protected regardless of their merit and can be provided for use “as is”, i.e. e. without additional guarantees of merchantability and quality (see section 3 of the User Agreement template).
Free license
This principle allows you to use the advantages of the licensing scheme specified in paragraph 2. At the same time, the gratuitous nature of the license prevents the application of the Law on the Protection of Consumer Rights in the case where the user is an individual (see clause 6.1 of the User Agreement template).
Disclaimer of warranties and provision of the service “as is”
If the requirements in clause 3 are a condition for the application of a licensing scheme for the provision of a service, then these provisions are its consequence. The User Agreement must clearly state the terms of limitation of liability for the provision and use of the service, for example, as is done in clause 6.2. User Agreement template.
Responsibility in case of fault
As a general rule, liability for obligations not related to business activities arises only if the offender is at fault (Articles 400, 401 of the Civil Code of the Russian Federation). In addition, the law allows you to enter into an agreement to limit liability in advance (except in cases of intentional violation). Therefore, the User Agreement for the use of an Internet service may include a condition on holding the owner of the service liable only if he is at fault.
Force majeure and actions of third parties
Force majeure (force majeure circumstances) on the basis of clause 3 of Article 401 of the Civil Code of the Russian Federation also exempts from liability in cases of violation of an obligation in the absence of fault.
Introduction of a compensation limit
Based on Article 400 of the Civil Code of the Russian Federation, the liability of the owner of an Internet service may be limited to a maximum amount. The exception is when the user acts as a consumer and the law establishes a certain amount of liability for this violation. Previously, we indicated that in the case of a free service, the user is not considered a consumer within the meaning of civil law. Therefore, this exception does not apply. If a paid service is provided, the amount of liability is determined, among other things, depending on the type of contract concluded.
Obtaining a license for user-generated content (UGC) when you add it
In the case of providing a social service or platform for users to post various materials in the public domain, it is necessary to draw up a license agreement for the use of such content within the framework of such an Internet service (see section 5 of the User Agreement template). For example, the owner of the service may want to use user content on other pages of the site, in presentations, broadcast it to other sites, etc., which is impossible without obtaining the appropriate permission.
Placing responsibility for UGC on users
Obtaining a license confirms the fact of using the content with the permission of the user, who is responsible for having the authority to issue such a license (see clauses 6.3, 6.5., 6.11 of the User Agreement template).
No pre-moderation
Obtaining a license for user content does not fully relieve the owner of an Internet service from liability for violation of the exclusive rights of the actual copyright holder. Among other things, it is necessary to confirm that the owner was not aware of the possible violation. Therefore, it is necessary to clearly indicate in the User Agreement that preliminary verification of the content is not carried out (see clause 6.4.).
Rules for the copyright holder
To simplify work with copyright holders, the User Agreement includes conditions on the need to provide a link to the page with counterfeit material and the address for sending notification of violation of rights (see clause 6.7 of the User Agreement).
Introduction of a procedure for a user to enter into a dispute (authorization)
To confirm the existence of a user who, in accordance with the law and the agreement, is responsible for posting counterfeit material, the User Agreement should include requirements for his authorization in the event of a claim (see clause 6.8 of the user agreement).
Defining conditions for account blocking and content removal
Compliance with the requirements of the federal law On Information as amended by the new anti-piracy law requires the information intermediary to remove controversial materials upon the first request of the copyright holder. Therefore, the User Agreement must provide the owner of the Internet service with such an opportunity without prior approval and notification of the user (see clauses 6.9 and 6.10). The provisions of paragraphs 8-13 are aimed at fulfilling the legal requirements for the owner of an Internet resource, as an information intermediary, to take all necessary actions to eliminate possible violations of the intellectual rights of third parties.
Test nature of the service
This reason reduces the tax risks of gratuitous sales (one) and serves as additional arguments in favor of limiting liability (two) and the temporary nature of obligations (three).
Simplified procedure for changing conditions and withdrawing an offer, terminating a contract
Article 450 of the Civil Code of the Russian Federation allows you to reach an agreement in advance on a simplified procedure for amending or terminating the contract by including such conditions in the text of the contract (see clause 9.4 of the User Agreement).
Separating the conditions for the provision of paid services into a separate agreement
If, along with free use of the general functionality of the service, you offer to pay for some of its features, you must draw up a separate agreement for paid services. This is required, firstly, to justify the continued provision of basic functionality free of charge, and secondly, to preserve the adopted model for reducing civil risks.
Charging for access to functionality, rather than services based on it
This procedure greatly simplifies the process of proving the fact of provision of services, reflecting sales amounts and document flow, because services are considered provided from the moment access is opened for a certain period, and not after the expiration of such a period of time.
Removal of responsibility for use of credentials
Actions performed using the user's login and password must be clearly considered as actions of the user himself. The user must be held responsible for ensuring the safety of their credentials (see 2.3 of the template).
Introduction of requirements for posted advertising materials
If your service is related to advertising, you must provide requirements for advertising materials placed using your system. This is usually done by including in the User Agreement a link to a separate regulation, which is binding on the parties and includes the conditions for placing advertising and requirements for its design, content and confirmation of compliance with the law when placing it.
Obtaining consent to use personal data
If a User Agreement is concluded with an individual, it becomes necessary to comply with the legislation on personal data. The user must obtain written consent to the processing of his personal data, indicating the list of such data, acceptable methods of processing, purposes and period of processing, etc. (see section 8 of the template).
Existing procedure
When the sample deposit agreement has been used and the agreement has been drawn up, it is worth proceeding directly to the procedure for transferring funds.
The buyer needs to be extremely careful, because it is he who must provide the amount. Initially, the buyer should protect himself from scammers who may encounter during a real estate purchase and sale transaction.
| Actions | Explanations |
| Checking premises documents | The buyer has the right to request from the seller an extract from the USRN demonstrating ownership rights, a document confirming the absence of restrictions and encumbrances, a registration certificate, a certificate demonstrating the absence of registered or temporarily registered persons |
| Obtaining the consent of the seller’s husband or wife to conclude a transaction for the purchase and sale of an apartment | The document is requested if the seller is married. Neglecting the procedure is highly discouraged. If the parties enter into a transaction without the consent of the seller's husband or wife, such an action will be considered a violation. Subsequently, the reached agreement can be challenged within 3 years |
| Checking the apartment for restrictions | Typically, information about restrictions and encumbrances is recorded in the statement. However, the presence of registered persons in the apartment may interfere with the sale. You can obtain the relevant information only at the passport office. Here you need to get an extract from the house register. Only the seller himself can provide information. If the buyer finds out that there are restrictions and prohibitions, he can ask the apartment owner to remove them. After this, the seller is obliged to provide papers confirming the fact of removal of the encumbrance. At this point, experts do not recommend providing a deposit. In this situation, the likelihood of receiving an apartment with all the encumbrances increases. Similar rules apply in situations where the presence of registered residents is revealed |
| Checking the fact of payment of utility bills | Before concluding an agreement for a deposit when purchasing an apartment between individuals, you must carefully read the receipts for payment of utilities for at least one year. In fact, debts do not affect the transfer of ownership; no one will talk about their presence. Therefore, the buyer needs to protect himself |
When the documentation has been checked, the initial inspection of the apartment has been carried out, the buyer has no doubts or complaints, you can enter into a deposit agreement. After this, the set amount is transferred. Funds must be carefully counted. Additionally, experts advise checking the authenticity of banknotes. In the process of providing the amount, you need to prepare a receipt for receipt of the deposit. It is not necessary to prepare documents, but the buyer is interested in preparing the paperwork. There are cases when the seller stated that he did not receive the funds. The receipt is issued in free form. The document confirms that the deposit has been provided. There is no need for notarization of the receipt.
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The receipt is issued by the seller. The buyer must simply sign the document and spell out his initials. It is better not to print the paper on a printer, but to draw it up by hand with a black or blue ballpoint pen on an A4 sheet. If litigation arises, handwriting examination may be required. It will allow you to confirm that the seller independently prepared the paper. The receipt is issued according to the number of persons participating in the purchase and sale of real estate. It's better to use a ready-made template.
When the deposit agreement is drawn up, the funds are transferred, the parties enter into a classic real estate purchase and sale transaction. To do this, a basic agreement is signed. The procedure is carried out within the time period specified in the deposit agreement. After this, final calculations are made and the apartment is registered in Rosreestr.
Sample receipt for receipt of money
Why is an advance agreement necessary?
When selling an apartment, the seller himself or a real estate agency hired by him conducts an advertising campaign and shows the apartment to potential buyers of the apartment. And then, miraculously, a potential buyer was found and he liked the apartment. This stage is followed by the stage of agreeing on the terms of sale of the apartment. Terms, price, other conditions. After all, it makes sense to negotiate “on the shore.” The result of these agreements is an agreement. In this case, we are considering an advance agreement. By concluding an advance agreement and accepting an advance payment for the apartment being sold, the seller becomes confident that the buyer is ready to buy this particular apartment for the agreed price on the agreed terms. As a sign of the seriousness of his intentions, according to the advance agreement, the buyer makes an advance payment to the seller for the apartment being purchased. The amount of the advance payment is subsequently included in the price of the apartment being sold.
What items must be included in the advance agreement?
First of all, the subjects of the contract must be described, i.e. The seller and potential buyer of the apartment must be indicated, their passport details and other descriptions of the legal entity or individual must be indicated. The object of the contract is described, i.e. the address of the apartment is indicated (including the cadastral number of the apartment), the parameters of the apartment (total and living area, on what floor it is located). The grounds on which the seller owns the apartment are indicated.
- Apartment price.
The amount for which the seller sells the apartment and the buyer buys the apartment is fixed. The procedure for mutual settlements (bank safe, letter of credit, escrow account, notarial deposit or other). Cash or non-cash payment. - Deadline for signing the agreement
. The period within which, from the moment of concluding the advance agreement, the parties are ready to sign the main agreement, the apartment purchase and sale agreement. - Deadline for vacating the apartment.
Terms of physical vacancy of the apartment. When must the owner of the apartment and other users of the apartment leave the apartment, remove their belongings and sign the acceptance certificate for the transfer of the apartment? - Advance refund conditions.
Conditions and procedure for the return of the advance payment in the event of refusal to conclude the main contract by the apartment seller.
Advance agreement clauses that can be included in the advance agreement
- If an apartment is purchased using a mortgage loan, then what additional documents and within what time frame does the seller of the apartment provide to the mortgage bank and insurance company;
- In what condition is the apartment being sold, what inseparable improvements to the apartment are there;
- In the case of transfer of furniture with the apartment, what separable improvements and furniture remain in the apartment;
- The procedure and terms for the legal release of an apartment (the procedure and terms for deregistration of owners or other users of the apartment from permanent or temporary registration);
- The list of conditions that may be specified in the advance agreement is not finite; the parties can independently decide what conditions for purchasing an apartment to indicate in the advance agreement.
Advance agreement form
A mandatory condition of the advance agreement being concluded is its written form. The law does not provide for mandatory notarization of an advance agreement. But the law does not prohibit the notarization of an advance agreement.
The amount of the advance payment and the procedure for transferring the advance amount.
The amount of the advance is not limited by law. It could be one ruble, or almost the full cost of the apartment. The amount of the advance payment must be indicated in the text of the advance agreement. Transfer of advance payment is possible both in non-cash and in cash form. In case of transfer of an advance payment in cash, a receipt for the transfer of funds is drawn up.
Responsibility for failure to fulfill the terms of the advance agreement.
It is worth understanding that the legal basis for an advance payment is advance payment of the full cost of the goods. In case of refusal to complete the main transaction, the apartment purchase and sale agreement, the advance payment must be returned to the buyer, regardless of whose fault the main agreement was not concluded. The advance agreement often includes a clause that if the main agreement (apartment purchase and sale agreement) is not concluded due to the fault of the buyer, the advance amount remains with the seller. This clause is legally not entirely legal; in order to maintain the balance of the parties, it is then necessary to conclude another agreement, not an advance agreement, but, for example, a deposit agreement, an agreement for making a guarantee payment, or another agreement not prohibited by law.
Is it possible to terminate a deposit agreement?
By downloading a ready-made sample deposit agreement, participants in an apartment purchase and sale transaction minimize the risk of errors. However, the contract can still be terminated. The procedure can be carried out at the initiative of both parties.
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The first option is possible if the buyer has identified shortcomings in the apartment or the premises differ significantly from the stated description. Termination of the agreement makes sense as long as the main purchase and sale agreement for the apartment has not been signed, payments have not been made and ownership has not been registered with Rosreestr. If the above steps have already been completed, the procedure is considered pointless. The entire deal must be terminated.
