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If there is no notary, it is advisable to exchange money and a receipt in the presence of outside witnesses (not from among your loved ones). Our lawyers know the answer to your question. If you want to find out how to solve your particular problem, then ask our duty lawyer online. It's fast, convenient and free! or by phone:
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Refund of money through court The buyer has the right to go to court to collect money from the seller if he believes that the transaction was disrupted for reasons beyond his control or due to the fault of the selling party. Previously, he can send a written claim to the seller demanding the return of funds by a certain date, before the case is sent to court.
Is the deposit refunded or not?
Attention
A deposit to the seller is a confirmation of the buyer’s serious intentions, a guarantee that the transaction will take place. By providing part of the amount in advance under a formal contract, the buyer gains a lot.
Firstly, he reserves the right to make a purchase in which he is interested, and secondly, if the deal falls through through no fault of his own, the second party returns him the amount of the deposit in double amount, although this will require going through legal proceedings. The buyer may also lose money: if he suddenly wants to cancel the transaction on his own whim, the seller has every right not to return the funds to him. Another thing is the presence of objective reasons due to which the buyer refuses the transaction. In this case, he can get the money back if this was provided for in the contract.
Receipt for repayment of advance payment - sample
If the purchase of an apartment falls through, then it is necessary to return the advance payment. To legally secure the fact of transferring money back, it is recommended to draw up a receipt for the return of the advance . A sample of such a document should include the following information:
- passport details of the parties;
- reference to the terminated contract;
- information that the seller returns money due to cancellation of the agreement;
- amount of money;
- signatures of the parties and date of preparation.
The return receipt must be drawn up by the failed buyer, to whom the money transferred to him in the past is returned . If a receipt for the transfer of money was previously drawn up, then on the reverse side of it, the buyer of the apartment must indicate that the seller, according to this receipt, returned the money to him in full. The return receipt is also not subject to mandatory registration with a notary. You can download a sample receipt here.
Refund of deposit money for an apartment according to receipt
Refund of the deposit against receipt for the house and plot
The deposit is a security payment, that is, a payment that would give the parties to the contract confidence that each of them will fulfill their obligations to conclude a future contract or fulfill the terms of the current contract. The content of the article:
- How is it different from an advance?
- When is such a payment made?
- Refund of the deposit in double amount - in what case?
- Is it possible to return the amount paid for the apartment?
- Refund of payment by receipt
- By prior agreement
Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.
Receipt for advance payment - sample
When transferring an advance payment for an apartment, it is recommended to draw up a receipt to confirm that the seller has received the money. The receipt can be either an appendix to the contract or an independent document.
The first method is more common because it is safer and emphasizes the legality of the transaction. If the seller refuses to return the money or says that he did not receive an advance payment, then to protect his interests the buyer needs to go to court, and a receipt will serve as solid proof of the fact of transfer of money.
A receipt for an advance payment when purchasing an apartment can be drawn up on any sheet of paper . The sample should include the following items:
- passport details of the parties;
- reference to the main agreement in accordance with which the money is transferred;
- address of the apartment and brief technical data about it;
- full name of the payment (deposit or advance);
- amount of money;
- signatures of the parties and date of preparation.
A receipt must be drawn up by the seller at the time of transfer of money . The document can be certified by a notary, however, this is not necessary (except for cases where the receipt is drawn up in printed form - such a document must be registered with a notary).
In the absence of a receipt, it is much more difficult to prove the fact of receiving an advance.
If the buyer refuses the transaction, is the deposit returned or not?
In case of doubt as to whether the amount paid towards payments due from the party under the contract is a deposit, in particular due to non-compliance with the rule established by paragraph 2 of this article, this amount is considered to be paid as an advance unless proven otherwise. 4. Unless otherwise established by law, by agreement of the parties, a deposit may be used to secure the fulfillment of the obligation to conclude the main agreement on the terms provided for by the preliminary agreement (Article 429).
Info
Article 381. Consequences of termination and non-fulfillment of an obligation secured by a deposit 1. If the obligation is terminated before the start of its performance by agreement of the parties or due to impossibility of performance (Article 416), the deposit must be returned.
ConsultantPlus: note.
Not found
Usually, circumstances are indicated that may prevent the completion of a transaction for reasons that do not depend on the parties planning to complete it, namely:
- sudden illness;
- refusal to issue a mortgage;
- a sharp deterioration in financial situation.
The deposit can be returned if both parties agree before the start of the transaction to terminate all obligations, that is, the decision of one party not to sell, and the decision of the other party not to buy the premises. In this case, the matter can be settled peacefully, without disagreement.
If the case goes to court, they may be required to return the deposit in double amount if the contract fails due to the fault of the seller who has not fulfilled his obligations specified in the preliminary contract.
In what cases is the deposit returned?
The buyer or seller, when concluding a contract for the transfer of property, pays attention to all the details so as not to end up at a loss. One of the clauses in the real estate sale agreement may be the possibility of transferring a material guarantee. It is important for the parties to the transaction to know whether the deposit for the apartment is returned or not upon termination of the contract.
What is a deposit
To understand, it is necessary to understand the legal definition of a deposit. In Russian legislation, the corresponding term is set out in Article 380 of the Civil Code, clause 1.
In essence, this is a guarantee payment, which serves as a reason that the buyer and trader will not refuse the contract if more profitable offers arise.
If the goods were given to the buyer, then the transferred preliminary amount is actually recognized as an advance payment.
When drawing up a document for the sale and purchase of a car, real estate, land or other property, it is necessary to confirm in writing the presence or absence of a preliminary security payment. Otherwise, when resolving a conflict situation through the court, the transferred financial resources are recognized as an advance and must be returned to the individual or legal entity.
The fact of transfer of cash resources is confirmed by a receipt.
Under what conditions is it issued?
The parties, having come to a preliminary oral agreement on the need to transfer a security transfer, draw up a written document. Especially often, the need for a guarantee payment arises when purchasing land or real estate with a mortgage. Points of the advance transfer agreement include:
- Full name and passport details of all parties to the transaction.
- Reason for transfer of the guarantee payment.
- The amount of transferred financial resources.
- Total transaction volume.
- The period during which the main payment must be transferred and the goods must be transferred.
An important point in the contract is to indicate that the amount being deposited is part of the overall trading contract. According to the Civil Code of the Russian Federation, if the potential beneficiary refuses the transaction, the deposit is not returned. If the seller refuses the contract, the deposit will be returned in double amount.
The deposit must be accompanied in writing
When is the deposit refundable?
Whether the deposit is returned or not depends on the outcome of the agreement. Practice shows that clients who have changed their mind about purchasing housing are interested in the question of how to return the deposit for the apartment. By law, the guarantee payment is returned in a couple of cases:
- When a transaction is canceled for reasons beyond the control of the participants.
- The purchase of a house, car or other valuable property for which a deposit was made did not take place due to violations of the terms of the contract by the seller.
Cancellation of a contract always has valid reasons. It could be a natural disaster that destroys the property being sold.
If the money was contributed as a guarantee when selling under the hammer, then it can be returned. Returning the deposit at an auction is an ordinary, ordinary procedure that does not require judicial intervention.
If the public auction does not take place, then the funds are returned to the participants’ accounts using standard bank transactions. Funds transferred by losing participants in the auction are returned.
When a prospective bidder decides to withdraw from the auction, their deposit will be returned to them before a certain deadline. If the cancellation occurs after the specified date, the deposit will not be returned.
The winner's funds are transferred as payment under the concluded agreement. The use of financial security at auctions is regulated by 448 articles of the Civil Code. If, after the agreed time, the auction organizer delays the completion of the transaction or refuses, thereby violating the rights of the participant, then the auctioneer must return the deposited funds in double amount.
A special option for bidding is organizing the sale of a company in relation to which bankruptcy measures are being taken. The deposit is paid by corporations or individuals wishing to purchase the company. Money will be returned to losing bidders.
When it doesn't come back
As for whether the earnest money is refunded if the buyer backs out of the agreement, the most common answer is no. The financial meaning of the deposit is to guarantee the execution of the transaction; the return of the invested money will be a violation of the logic of the contract.
The deposit may or may not be returned.
In addition to purchase and sale transactions, the guarantee applies to rental agreements.
Realtors and representatives of car dealerships offer a client who wants to rent a car or rent an apartment, cottage, garden plot, garage, to make a deposit, usually in the amount of a certain percentage of the value of the property.
If the client damages it while using rented housing or other property, the owner takes the deposit as compensation.
Whether or not the deposit is returned when purchasing an apartment or cottage depends on the reason why the sale did not take place. In the event that the buyer is at fault, the money remains with the potential seller.
When the deposit is returned in double amount
The fundamental difference between a deposit and other types of advance payments is the presence of an additional function. The return of double the amount is important as a measure of influence on the unscrupulous participant in the transaction.
The buyer transferred the deposit, thereby increasing the owner’s assets. By returning the transferred money, the owner of the property, in fact, remains with the original capital.
The return of double financial security is a material loss for the selling party.
The deposit in double amount is transferred to:
- If the seller fails to fulfill his obligations to sell real estate or other valuable property (apartment, house, restaurant, yacht club, car, motorcycle, etc.).
- If the auctioneer refuses to enter into an agreement with the auction winner.
- If the landlord refuses the tenant to enter into an agreement.
- In other cases, when the agreement provides for a deposit, the transaction did not take place due to the fault of the person who received it.
Registration of the contract
The process of drawing up an agreement on the transfer of a deposit is not very difficult if you prepare for its preparation in advance.
The document must indicate all significant points that allow identifying the parties to the agreement, the amount of the transferred amount, and the conditions for its transfer.
It is important to indicate that the funds are a deposit, otherwise, even in the Supreme Court it will be extremely difficult to prove that this is not an advance. The deadline for the execution of the main contract and the responsibility of the parties for improper execution are indicated.
Correct execution of the document is a guarantee that the participants will fulfill their obligations.
All documents must be prepared in accordance with the rules in order to avoid controversial situations in the future.
The deposit agreement is signed simultaneously or later than the main purchase and sale agreement, since it has a subordinate position to it.
Registration of receipt
When transferring funds in cash or non-cash form, a receipt is issued. The main part of it duplicates the significant clauses of the agreement:
- Full name and registration details of participants.
- The reason for receiving the money.
- Amount.
- An indication that the finances were transferred as a deposit.
- Date of transfer of money.
The receipt is drawn up by computer, but when resolving disputes through the courts, a document written in the recipient’s own hand is more acceptable. At the request of the seller, the document can be drawn up in two copies.
Differences between a deposit and an advance and a pledge
When concluding a transaction, the participant must distinguish between three terms: deposit, pledge, advance. The latter means an advance payment before the provision of a service or transfer of goods. If the transaction does not take place due to the fault of the seller, the advance payment will be returned to the buyer.
The pledge is a guarantee of bona fide participation in the transaction, but does not have the function of payment. If the buying or leasing party fails to fulfill the terms of the contract, the deposit remains with the seller as compensation. If the issue is successfully resolved, the buyer pays for the goods, and the deposit is returned to the client.
The deposit combines both functions. He is the guarantor of the transaction and part of the payment for the goods. The deposit is beneficial to the buyer, since its presence imposes financial obligations on the owner (lessor, auctioneer) in case of refusal of the transaction.
If the receipt or deposit agreement is drawn up incorrectly, an unscrupulous seller will interpret the agreement in his favor. Court decisions often side with the owner of the resources and recognize the transferred payment in advance. Thus, the failed buyer gets his money back, but does not receive compensation for violating the terms of the lease or purchase and sale agreement.
You can learn more about the deposit from the video:
Source: https://MoyDolg.com/zadatok/vozvrat.html
How is a refund of the deposit for an apartment processed?
In what cases is the seller obliged to return the deposit? Any transaction between the seller and the buyer must be supported by an agreement. This is the basis, without which you cannot give the seller a deposit, much less the entire amount, especially when it comes to buying real estate, where the amounts amount to hundreds of thousands of rubles (the deposit is usually 5-10% of the total amount). According to established legal norms, the deposit is transferred after drawing up a preliminary agreement indicating the cost of the apartment, the amount of the deposit, the wishes and requirements of the parties, for example, with the requirement to check out all people previously living in the premises. It must also indicate in what cases the deposit can be returned.
Sample receipt for a deposit when purchasing an apartment
Do not agree to draw up such an agreement in the form of a simple receipt. After all, the owner of the property may not sell it to you and may not return the money, and his relatives will provide a fake certificate stating that he was not himself when he took the deposit amount from you. Then you will have to go to court and spend a lot of time and effort on this. And no one will give you a guarantee that his decision will be in your favor.
This is interesting: Current problems of criminal legislation
In our country, this practice is typical specifically for the real estate market. Firstly, because its processes take a lot of time: preparation of documents, registration, registration of rights. Secondly, they always involve large sums of money. That is why both the seller and the buyer need some kind of guarantees.
How to return the deposit to the buyer and seller?
If you want to find out how to solve your particular problem, please use the online consultant form on the right or call the free consultation numbers: What is the difference between an advance payment? Both the advance and the deposit are preliminary cash payments. However, the advance, unlike the second one, is not security; it performs only a payment function.
While the deposit performs both payment and security functions.
- The payment function is manifested in partial payment for a product or service.
- Security - guarantees certain actions of the parties.
If the contract is not fulfilled, the advance is returned to the party that paid it. For the deposit, other conditions for return are provided, clearly defined by law. The line between these payments is thin.
