Is it worth concluding an agreement with a real estate agency?

The concept of a real estate agency agreement

When it comes to using the services of an agent, there is no exception for a legal entity. An agency agreement is a local document, the main purpose of which is to consolidate agreements regarding actions in the interests of a citizen.

Let's give an example. A person owns real estate (for example, a country house) in another city and wants to sell it. Due to work or other reasons, the owner of the house is not able to go to another city and show the house, sell it and negotiate with realtors. It is in such cases that agents are needed; they draw up an agreement with the owner of the property and provide services for the sale of the building. An agency agreement can be concluded with both an individual and a legal entity - a company.

In order for the contract to be not only legal, but also productive, it is necessary to discuss in detail (write down in the lines of the document) all the specific tasks that are delegated - searching for potential and actual buyers, negotiating with them, setting prices, bidding, drawing up sales agreements, etc. d.

In order for an agent to be trusted (the legality of the contract depends on the legality of this person’s powers), he must have special permits and licenses.

It is important to remember: a real estate agent and a realtor (who may not only have a license, but also, as experience shows, secondary education) are completely different people.

• The person hiring the agent, i.e. Most often, the owner of a real estate object (less often a company or legal entity) is called a principal . He is also the customer and manager.
• The payment for the work of the agent under the contract is called rental compensation . This amount is discussed from the very beginning, long before the contract is drawn up. It is important to remember: the rental fee does not include the agent's operating expenses. Additional amounts (transport costs, office expenses, etc.) can also be agreed upon in advance.

What are subagency leases?

Very often, when contacting a real estate agent, the owner of the property is informed that a subagency agreement will be drawn up. Often citizens are confused and embarrassed when they hear such terms, but this means that the principal is faced with mediation.

A subagency agreement means that the agent to whom you entrust the task does not personally perform the services, but reorders the assignment further. Those. technically he is your agent, but technically he is a third party. Most often, this happens when large firms and organizations entrust complex tasks to agents and the agent, trying to cope with them, redirects small and unconstructive tasks to sub-agencies.

It should be remembered: the responsibility for completing all tasks and all clauses of the real estate agency agreement is the direct agent, and not the subagent, etc.

Regulatory regulation

A real estate agency agreement is a type of agency agreement, which is provided for in Article 1005 of the Civil Code of the Russian Federation. The essence of this agreement, from a legislative and regulatory point of view, is the ability to grant rights to a party (agent) to sell, rent and purchase real estate.

The most basic thing from the perspective of civil law is the exact agreement of the price for which the agent must sell the property. Even if the owner of the property considers himself incompetent in matters of pricing, you cannot instruct the agent to set the price yourself. This is why there are professional real estate appraisals.

Agreement with the agency: all the arguments are in favor

Real estate transactions are a very serious matter that requires:

• a range of legal knowledge;
• experience in searching for the object specified by the buyer;
• sales experience.

If you want to receive a competent approach and quality services, we definitely recommend signing a special agreement with the agency. Signing a document for the provision of services provides guarantees of professional service at every stage of work until the conclusion of the transaction.

Also, the agency is interested in the deal, and when the contract is signed, the agency puts in much more effort than if the agency works without a contract. Having signed an agreement with you, the agency understands the seriousness of your intentions, and will not save money on advertising, much less treat you carelessly.

Types of AD for real estate

There are several types of contracts and several types of classifications of these types. On the one hand, contracts may differ from each other in the type of operations:

• contract for the sale of real estate;
• real estate rental agreement;
• contract for the purchase of an object;
• agreement for the provision of intermediary services;
• contract for legal support;
• an agreement coordinating real estate management issues;
• real estate selection agreement.

There are also other types of civil contracts that are provided for by the Civil Code:

• on behalf of the principal;
• by myself.

This classification of contracts is very accurate, as it identifies fundamental differences. A contract “on behalf of the principal” implies that the agent will act exclusively on behalf of the customer. Despite the fact that such a scheme seems to be the most rational, the “in itself” type agreement is more profitable.

Example: a company or individual hires an agent to build a store. To do this (concluding an agreement “on its own”), the agent will have to independently conclude (on his own behalf, and not on behalf of the principal) agreements regarding the lease of a land plot or its purchase. This may turn out to be more profitable, since only one task is set, and the type of contract itself does not require the customer to solve a number of issues independently.

It should be remembered that in this case, all funds that the agent pays for the implementation of intermediate tasks (rental cost of a land plot, etc.) are not part of the agent’s remuneration.

Themis left realtors without the right to a penalty

Real estate agencies often stipulate fines in contracts in an attempt to protect themselves from “consumer terrorism”, and have previously won cases

The Supreme Court of Russia prohibited realtors from demanding a penalty from a client if the latter refused their services. A precedent was created by a resident of the Moscow region who was looking for a plot of land with the help of a real estate agency.

As a result, the client terminated the contract, finding a suitable option on her own. The agreement concluded between the parties provided for the payment of a penalty in the event of termination.

Real estate agencies often prescribe such clauses in an attempt to protect themselves from “consumer terrorism.” Experts interviewed by Realnoe Vremya believe that the Supreme Court’s decision will not affect the activities of realtors, since the buyer “has always been right” before.

However, judicial practice shows that quite often the courts side with intermediaries, whom clients “dump” after concluding a deal.

A resident of the Moscow region reached the higher court. She entered into an agreement with a company to provide services in the field of real estate purchase, chose for a long time, but she did not like any of the proposed options, Rossiyskaya Gazeta reports. As a result, the client herself found a suitable plot of land and terminated the contract with the office.

However, the realtors felt that they had done their job - they spent time finding a decent option for the client. In addition, the contract contained a clause according to which, in the event of failure by the customer to fulfill the terms of the contract (for example, refusal or evasion of the acquisition of a site) or violation by the customer of obligations under this contract, the customer undertakes to pay one hundred thousand rubles.

The realtors felt that they had done their job - they spent time finding a decent option for the client. Photo visrf.ru

The realtors decided to collect the penalty in court. The Dmitrov City Court refused. The plaintiff went to the Moscow Regional Court to challenge the decision, which sided with him and recognized the client’s demand for a penalty as legal.

And then the defendant went to complain to the Supreme Court of Russia, which decided to overturn the decision of the Moscow Regional Court and uphold the decision of the court of first instance.

The terms of a contract that infringes on the consumer’s rights to refuse a service are invalid

As the Supreme Court explains, an agreement for the provision of services for a fee was concluded between the parties to the dispute. According to Art. 779 of the Civil Code of the Russian Federation, “the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.”

In Art. 310 of the Civil Code of the Russian Federation states that unilateral refusal to fulfill a contract or change its terms is not allowed, with the exception of certain cases. And this case falls under this exception.

The bottom line is that one of the parties to the dispute is the entrepreneur, and such relations are regulated by the Consumer Rights Protection Law, which, as you know, implies that “the buyer is always right.”

Intermediary services - purchase and sale of real estate - also fall under the Consumer Protection Law.

Such relationships are regulated by the Consumer Protection Law, which, as is known, implies that “the buyer is always right.” Photo n-novorossia.ru

According to Art. 782 of the Civil Code of the Russian Federation, “the customer has the right to refuse to fulfill a contract for the provision of services for a fee, subject to payment to the contractor for the expenses actually incurred by him.” The same is written in the Law on Protection of Consumer Rights (Article 32).

However, the realtor could not prove that he incurred any expenses while working with the customer. Any other legal consequences of refusal for the customer (for example, penalties or fines that real estate agencies may stipulate in contracts) are not provided for by law. According to Art.

16 of the Law on the Protection of Consumer Rights, the terms of a contract that infringes on the rights of a consumer are declared invalid.

As a result, the clause in the contract about a penalty if the customer refuses the transaction was considered by the Supreme Court to be an infringement of his right to refuse the service.

Contracts with penalties are a relic of the past and protection against “consumer terrorism”

According to the heads of real estate agencies, who were interviewed by Realnoe Vremya, contracts that stipulate various penalties in the event of a client refusing their services were indeed often encountered in the past. However, in recent years, realtors have been operating within the legal framework.

“We had contracts with penalties a long time ago, and when we began to analyze the legal component and see where it was leading us, we realized that there was no point except questions from clients and the possibility of certain authorities collecting a fine from us. We realized that we did not need this at all, and it was removed from the contracts.

Surely there are companies that do not fully understand the laws and, perhaps, include such penalties in their contracts, but, in essence, they do not work.

Moreover, they can cause harm - Rospotrebnadzor can, on the basis of such clauses that limit the rights and freedoms of clients, impose a fine on the legal entity providing these services, says Ruslan Khabibrakhmanov, director of the Flat real estate agency.

Anastasia Gizatova suggests that agencies that enter into contracts with penalties may have become victims of so-called consumer terrorism and are thus trying to protect themselves. Photo by Roman Khasaev

The director of the Happy Home real estate agency, Anastasia Gizatova, suggests that agencies that enter into contracts with penalties may have become victims of so-called consumer terrorism and are thus trying to protect themselves. But this and the fact that the dispute reached the court, according to her, speaks of the unprofessionalism of the realtor.

— If the client liked the options that the realtors offered her, she would have no reason to complain. Initially, they did not clearly stipulate the parameters of the site, or did not clearly stipulate their actions.

I believe that there is a problem with the conclusion of the contract, and the parties did not understand what they want from each other. I do not support concluding contracts with penalties.

If an agreement is concluded in favor of a realtor, then there must be a clause that provides for his responsibility, because the client also wastes his time, says Anastasia Gizatova.

According to Realnoe Vremya’s interlocutor, concluding an agreement with an agency that provides for fines or that does not charge any fines is solely the client’s choice: there are both organizations on the market.

The client is not always right: the courts side with realtors

Another thing is compensation for expenses incurred when an agency orders advertising for the sale or purchase of real estate. But such expenses must be documented. Transport costs, for example, are quite difficult to confirm.

— There are no problems with compensation - these are not such large amounts, and if we talk about fines, this is not legal. Another thing is when the service is performed and the client refuses to pay for the service, then the law, of course, protects the performer.

There are many examples when a person uses the services of an agency and enters into a deal... then the courts side with the contractor.

Because it would be unfair if they dealt with impunity to organizations that spend their strength, energy, and money on this,” says Ruslan Khabibrakhmanov.

“It’s another matter when the service is performed and the client refuses to pay for the service, then the law, of course, protects the performer,” says Ruslan Khabibrakhmanov. Photo by Roman Khasaev

Thus, in Yekaterinburg, the court sided with a realtor, to whom the client refused to pay a fee. He found a suitable option for her, but after a while he found out that the purchase and sale agreement was concluded behind his back, and sued the client.

The defendant filed a counterclaim for consumer protection. In particular, she asked the court to invalidate the clause in the contract that prohibited the client from independently searching for potential buyers and concluding an agreement for the sale of an apartment with other persons.

The court sided with the realtor, ruling to recover 104 thousand 615 rubles from the defendant.

Of these, 80 thousand rubles are remuneration under the contract for the provision of services, 4 thousand 615 rubles are interest for the use of other people’s funds and 20 thousand rubles are the costs of paying for the services of a representative in court.

In another case, the Supreme Court did not decide which side to take. The plaintiff is a realtor to whom the client refused to pay a fee.

She motivated her refusal by the fact that the advertisement for the sale of the apartment was in the public domain and the realtor did not perform any special actions to find an apartment.

The civil panel of the Supreme Court sent the case for a new appeal hearing to check whether the defendant was in good faith by refusing to pay for services, and to establish additional circumstances.

Moscow history created a new precedent when the court sided with the client, not the realtor.

Source: https://realnoevremya.ru/articles/74399-verhovnyy-sud-vstal-na-storonu-klienta-v-spore-s-rieltorom

Blood pressure report

A report on the activities of an agent under a contract is not just a wish. According to Article 1008 of the Civil Code, a progress report is required even in cases where the principal does not need it.

• If the received report contradicts any clauses of the agency agreement, then the principal has the right to demand correction of the shortcomings. In such cases, the contract is considered unfulfilled.
• The agent is a full-fledged person in this transaction and may disagree with the principal. In order to object to the claims and dispute them, he has (according to the Civil Code of the Russian Federation) 30 days.

The video below will tell you about real estate AD:

What document requirements should you know?

Before signing the contract, the client has the right to ask for a standard copy for review. We will share the features that the document should contain. We are talking about a small list of conditions approved by the civil code:

• Preamble. The introductory section, which, in addition to the full names of the parties, must necessarily contain information about the legal entity, namely the name and grounds for signing official documents in accordance with the Charter;
• Subject of the agreement. In this part of the document, the customer provides a detailed list of services that he wants to receive from the contractor, within the competence of the real estate company;
• Cost of services, payment procedure. This aspect of the issue should be discussed in advance, since agencies usually take a flexible approach to this point;
• Obligations of the parties. The customer has an obligation to pay for the services of the real estate agency. On the agency’s side, this involves searching for a buyer for a property, advertising the property, and legal support of the transaction.