Requirements for the form of the real estate purchase and sale agreement. Failure to comply with the written form of the contract for the sale of real estate entails the invalidity of the contract

Purchase and sale of real estate: rules for excluding risks

Peculiarities legal regulation and the specificity of the subject of the real estate purchase and sale agreement significantly distinguishes it from other types of the sale and purchase agreement. Let's talk about the form and content of the real estate purchase and sale agreement, the advisability of a preliminary agreement between the parties and how to draw up such an agreement, the risks that must be foreseen, and the cornerstones that both parties cannot bypass.

Rule No. 1. We comply with the form of the contract

Failure by the parties to comply with the form of the contract for the sale of real estate by virtue of the direct indication of the law () entails its invalidity. For a sales contract real estate a mandatory written form is provided.

Exists different ways conclusion of an agreement in writing: in addition to drawing up one document signed by the parties, it is also allowed to exchange letters, telegrams, telexes, telefax, electronic documents, etc. (). However, in relation to the real estate purchase and sale agreement, the legislator not only established a mandatory written form, but also imperatively indicated the method of its execution: drawing up one document signed by the parties.

Failure by the parties to comply with other formalities (for example, if the pages of the agreement are not stitched and not numbered, there are no signatures or seals of the parties on the firmware) does not indicate a defect in the form of the concluded agreement. Courts come to this conclusion ().

The established practice of applying these norms shows that other written evidence confirming the fact of the conclusion and execution of a real estate purchase and sale agreement is often assessed by the courts as non-compliance by the parties with the proper form of the transaction. For example, the Moscow City Court did not accept, as evidence of the parties' compliance with the mandatory form of the contract for the sale of real estate, the receipt drawn up by the seller from the buyer. Money for the sold real estate ().

Rule No. 2. We provide essential conditions

In order for the contract of sale and purchase of real estate to be considered concluded, the parties must not only comply with the form prescribed by law, but also come to an agreement on all the essential terms of the contract.

In relation to any contract, the condition on its subject matter is essential. Moreover, the definition of the subject in the contract of sale of real estate must contain specific information that allows identifying real estate (). The obligatory information includes information about the location of the real estate object being sold on a land plot or as part of other real estate (for example, when transferring ownership of premises in a house).

Also essential is the condition on the price of the real estate being sold (). The value of real estate can be determined by the parties in a firm sum of money for the entire object or installed per unit of its area, which must also be specified in the contract.

With regard to the sale and purchase of a residential building, apartment or a share in the specified real estate, the right of residence in which is retained by third parties, the essential condition is a list of such persons. In addition to the list, the terms of the contract should provide for which right and to what extent the buyer is obliged to provide these persons.

We go around sharp corners:

By real estate sale agreement(in the contract for the sale of real estate) the seller undertakes to transfer to the ownership of the buyer land plot, building, structure, apartment or other immovable property (clause 1 of article 549 of the Civil Code of the Russian Federation).

Buying and selling is among the most common with real estate.

The contract for the sale of real estate is compensatory, consensual, mutual.

General provisions on the sale of real estate are contained in § 7 chap. 30 of the Civil Code of the Russian Federation. Selling features land plots provided for by the RF LC, sea ​​vessels- KTM RF.

Subjects of this contract are the seller and the buyer. They can be both citizens who are actively selling and buying their apartments, land plots, summer cottages, etc., and legal entities buying real estate for their offices, enterprises, etc. sale of real estate as a seller and a buyer, other entities can also participate civil rights (Russian Federation, constituent entities of the Russian Federation, municipalities).

In most cases, the owner is the seller. As an exception, the subjects of the law of economic management and operational management are state and municipal enterprises, institutions and state-owned enterprises can also be sellers.

State or municipal enterprises are not entitled to alienate immovable property without the consent of the owner (clause 2 of article 295, clause 1 of article 297 of the Civil Code of the Russian Federation). As for the institution, it can only alienate that immovable property that is acquired at the expense of income from activities permitted by its charter and is recorded on a separate balance sheet (clause 2 of article 298 of the Civil Code of the Russian Federation).

Content of the real estate purchase and sale agreement

The essential terms of the contract are the subject matter and the price.

The subject can be both a land plot and a building, structure or apartment, as well as other real estate.

The contract must contain data that allows you to definitely establish the real estate to be transferred to the buyer under the contract, including data that determine the location of real estate on the corresponding land plot or as part of other real estate (Article 554 of the Civil Code of the Russian Federation). So if subject of the contract is a building, structure, premises, in the contract it is necessary to indicate its location, address, purpose, year of construction, area, etc. not concluded.

Price buildings, structures or other immovable property located on a land plot includes the price of the corresponding part of the land plot transferred with this immovable property or the right to it, unless otherwise provided by law or the contract for the sale of real estate (clause 2 of Art. 555). In the absence of an indication of the price of real estate in the contract, it is considered non-concluded (clause 1 of article 555).

Since real estate in most cases has an inextricable connection with the land plot, when the ownership of the property is transferred, it is necessary to resolve the issue of rights to the land plot, respectively, when changing the owner of the land plot, the question arises about the rights to real estate objects located on it.

In Art. 552 of the Civil Code of the Russian Federation secured the rights to a land plot when a building is sold.

As a general rule, under an agreement for the sale of a building, structure or other real estate, the buyer simultaneously with the transfer of ownership of such real estate is transferred the rights to that part of the land plot that is occupied by this real estate and is necessary for its use.

If the seller is the owner of the land plot on which the real estate to be sold is located, the ownership right is transferred to the buyer or the right to lease or the other right to the corresponding part of the land plot provided for in the contract for the sale of real estate is granted.

If the contract does not define the right to the respective land plot transferred to the buyer of real estate, the right of ownership to that part of the land plot that is occupied by real estate and is necessary for its use is transferred to the buyer.

At the same time, the sale of real estate located on a land plot that does not belong to the seller by right of ownership is allowed without the consent of the owner of this plot, if this does not contradict the conditions for using such a plot established by law or agreement. When such real estate is sold, the buyer acquires the right to use the corresponding part of the land plot on the same terms as the seller of the real estate.

Article 553 of the Civil Code of the Russian Federation establishes rights to real estate when selling a land plot.

If the land plot on which the building, structure or other real estate belonging to the seller is located is sold without transferring this real estate to the buyer's ownership, the seller retains the right to use the part of the land plot that is occupied by real estate and is necessary for its use, on the terms determined by the sales contract.

If the conditions for the use of the relevant part of the land plot are not determined by the contract of sale, the seller retains the right of limited use (easement) to that part of the land plot that is occupied by real estate and is necessary for its use in accordance with its purpose.

The transfer of real estate has certain features. It is drawn up by signing by the parties deed of transfer or another document confirming the transfer of property by the seller and its acceptance by the buyer (Article 556 of the Civil Code of the Russian Federation). Evasion of one of the parties from signing a document on the transfer of real estate on the terms stipulated by the contract is considered the seller's refusal, respectively, to fulfill the obligation to transfer the property, and the buyer - from the obligation to accept the property.

Acceptance by the buyer of real estate that does not comply with the terms of the contract, including when such a discrepancy is stipulated in the document on the transfer of real estate, is not a basis for releasing the seller from liability for improper performance of the contract.

Requirements for the form of the contract for the sale of real estate are established by Art. 550 of the Civil Code of the Russian Federation. The contract for the sale of real estate is concluded in writing by drawing up one document signed by the parties (clause 2 of article 434 of the Civil Code of the Russian Federation). Failure to comply with the form of the contract for the sale of real estate entails its invalidity.

It should be noted that current legislature does not provide for the obligatory notarization of the real estate sale agreement (the parties can do it at their discretion). At the same time, the transfer of ownership to the buyer is subject to state registration (Clause 1 of Art. 551 of the Civil Code of the Russian Federation).

State registration is understood as a legal act of recognition and confirmation by the state of the occurrence, limitation (encumbrance), transfer or termination of the right to real estate in accordance with the Civil Code of the Russian Federation.

State registration is the only proof of the existence of a registered right, which can only be challenged in court. The registration procedure is established by the Law "On state registration of rights to real estate and transactions with it."

The real estate is transferred to the acquirer from the moment of state registration, and its execution until that moment (transfer of documents, eviction and resettlement, etc.) does not entail the transfer of ownership, the burden of maintenance and the risk of accidental loss of property to the acquirer (Articles 210, 211 Civil Code of the Russian Federation).

However, if one of the parties evades state registration of the transfer of ownership of real estate, the court has the right, at the request of the other party, to make a decision on state registration of the transfer of ownership.

It should be noted that, as a general rule, registration is not subject to the contract itself, the subject of which is real estate, but the transfer of rights to it.

Features of the sale of residential premises

An essential condition of the contract for the sale of a residential building, apartment, part of a residential building or apartment in which persons live, who, in accordance with the law, retain the right to use this residential premises after its purchase by the buyer, is a list of these persons with an indication of their rights to use the residential premises being sold.

The contract for the sale of a residential building, apartment, part of a residential building or apartment is subject to state registration and is considered concluded from the moment of such registration.

Under the contract for the sale of real estate (contract for the sale of real estate), the seller undertakes to transfer to the buyer's ownership a land plot, building, structure, apartment or other real estate, and the buyer undertakes to accept this property and pay the price determined by the parties for it (clause 1 of Art. 549, clause 1 of article 454 of the Civil Code).

The essential terms of the real estate sale agreement include the terms of the subject of sale and the price of the real estate being sold.

The law requires that in the contract for the sale of real estate data must be specified that allow to determine definitely the real estate to be transferred to the buyer under the contract, including data that determine the location of real estate on the relevant land plot or as part of other real estate. In the absence of the specified data in the contract, the condition of the real estate sold and subject to transfer is considered inconsistent, and the contract is not concluded.

V difference from a sales contract of movable property, the contract for the sale of real estate must contain a condition on the price of real estate agreed by the parties in writing. In the absence of a condition on the price, the contract for the sale of real estate is considered non-concluded (clause 1 of article 555 of the Civil Code). As a general rule, the price of immovable property located on a land plot agreed by the parties includes the price of the corresponding part of the land plot transferred with this immovable property or the right to it (clause 2 of article 555 of the Civil Code). However, this rule is dispositive.

Property price in the contract for the sale of real estate can be determined by the parties in various ways. In cases where the price of real estate is set per unit of its area or other indicator of its size, the total price of such real estate to be paid is determined on the basis of the actual size of the real estate transferred to the buyer (clause 3 of article 555 of the Civil Code).

The main responsibility the buyer under the contract for the sale of real estate, along with the obligation to accept the purchased real estate, is the obligation to pay for it. The form, procedure and method of payment are determined by the parties to the agreement independently. The law allows payment of purchased real estate in installments and on credit, as well as prepayment.

In the absence in the contract of a clause on the distribution of costs for state registration of the transfer of ownership, these costs should be borne by the seller.

The contract for the sale of real estate is concluded in writing by drawing up one document signed by the parties.

Non-compliance the form of the contract for the sale of real estate entails its invalidity. The transfer of ownership of real estate under an agreement for the sale of real estate to the buyer is subject to state registration.

Enterprise sale agreement

Under the contract for the sale of the enterprise, the seller undertakes to transfer the ownership of the buyer to the enterprise as a whole as a property complex (Article 132 of the Civil Code of the Russian Federation), with the exception of rights and obligations that the seller is not entitled to transfer to other persons (paragraph 1 of Article 559 of the Civil Code of the Russian Federation).

The separation of the contract for the sale of an enterprise as an independent type of a contract for the sale of real estate is due to the specifics of the subject - the enterprise as a property complex used for entrepreneurial activity.

The contract for the sale of an enterprise is consensual, onerous, reciprocal.

The object of this agreement is an enterprise as a property complex. The structure of the enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as the rights to designations that individualize the enterprise, its products, work and services (brand name, trademarks, service marks), and other exclusive rights. Other property and non-property elements can be included in the structure of the enterprise by law or contract.

The parties to the contract are the seller - an individual or legal entity that has ownership of the property complex in question, and the buyer - as a rule, an individual - an entrepreneur or legal entity, which may own a property complex for a certain purpose.

The requirements for the form of the contract for the sale of an enterprise should be regarded as special. Firstly, these are instructions on the actual form of the contract and its registration, and secondly, instructions on the documents attached to the contract, the list of which is exhaustive. Failure to comply with both those and other requirements entails the invalidity of the contract.

Delivery agreement: concept, types and elements

Under the supply contract, the supplier - the seller engaged in entrepreneurial activity, undertakes to transfer, within a specified time or date, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, household and other similar use.

This agreement is consensual, reimbursable and reciprocal.

The supply most often includes a supply agreement for state needs, an energy supply agreement, a contracting agreement.

The elements of the supply agreement are as follows: parties, subject matter, price, term, form and procedure for concluding, the content of the agreement.

The parties to the contract are persons engaged in entrepreneurial activity, i.e. according to Art. 2 Civil Code commercial organizations (sometimes non-commercial) or citizens - individual entrepreneurs.

The subject of the contract is, as a rule, things defined by generic characteristics. The buyer's rights include the right to replace defective goods, to make up for short deliveries from other persons with attribution to the supplier of the costs of their purchase. Individually defined things cannot be the subject of a contract. The contract price is determined by agreement of the parties (except for those types of goods in respect of which state regulation of prices is carried out).

The deadline for the fulfillment of obligations for the transfer of goods and for its payment is also established by agreement of the parties.

The form of the contract is written, which in practice is drawn up, as a rule, by the signing and drawing up of one document by the parties. The content of the contract consists of the obligations of the parties (the supplier is to transfer the goods to the buyer with all the necessary accessories and documents in the agreed quantity, assortment and set of established quality, free from the rights of third parties, in proper packaging or containers, and the buyer to accept the goods and pay for it).

Supply of goods for state needs

The supply of goods for state needs is carried out on the basis of a state contract for the supply of goods for state needs, as well as contracts for the supply of goods for state needs concluded in accordance with it.

State needs are defined as the needs of the Russian Federation or the constituent entities of the Russian Federation determined in accordance with the procedure established by law, provided at the expense of budgets and extra-budgetary sources of funding.

A state contract for the supply of goods for state needs is a kind of a supply contract and in this sense can be characterized as a compensated, 105 nonsense and mutual contract.

Under the state contract for the supply of goods for state needs, the supplier (executor) undertakes to transfer the goods to the state customer or, at his direction, to another person, and the state customer undertakes to ensure payment for the delivered goods.

The state contract is concluded on the basis of the order of the state customer for the supply of goods for state needs, accepted by the supplier (executor).

For a government customer who has placed an order accepted by a supplier (executor), the conclusion of a government contract is mandatory. The conclusion of a contract is mandatory for the supplier (executor) only in cases established by law, and on condition that the state customer will compensate for all losses that may be caused to the supplier (executor) in connection with the performance of the contract.

If an order for the supply of goods for state needs is placed through a tender, the conclusion of a contract with a supplier (executor) declared the winner of the tender is mandatory for the state customer.

In cases stipulated by law, the state customer has the right to completely or partially refuse the goods, the delivery of which is provided for by the state contract, subject to compensation to the supplier for losses caused by such a refusal.

Contract agreement

Under the contracting agreement, the producer of agricultural products undertakes to transfer the agricultural products he has grown (produced) to the procurer - the person who purchases such products for processing or sale.

This agreement is consensual, onerous and bilateral.

Specific to the contract are the parties and the subject of the contract. A seller under a contracting agreement can be not only agricultural commercial organizations and peasant (farm) farms, for which the production and sale of agricultural products is an entrepreneurial activity, but also citizens who produce agricultural products in household, garden and summer cottages... The buyer (procurer) is a person who purchases agricultural products for subsequent processing or sale, i.e. for business use.

Under the contracting agreement, only those agricultural products are sold that are grown (produced) by the seller, in the quantity and range stipulated by the contract. This can be products of the future harvest or those already available from the manufacturer at the conclusion of the contract. Under a supply agreement, both manufactured and purchased products can be sold.

Under a contracting agreement, agricultural products are sold that have not undergone any processing. Processed agricultural products are industrial products that are sold under a supply agreement or under a retail sale and purchase agreement.

Energy supply contract

An energy supply contract is a public contract.

Under the power supply agreement, the energy supplying organization undertakes to supply the subscriber (consumer) through the connected network, and the subscriber undertakes to pay for the received energy, as well as to comply with the regime of its consumption stipulated by the contract, to ensure the safety of operation of the energy networks under its control and the serviceability of the devices and equipment used by it connected with energy consumption.

The power supply contract is concluded with the subscriber if he has a power receiving device that meets the established technical requirements, connected to the grids of the power supply organization, and other necessary equipment, as well as when ensuring the metering of energy consumption.

This is a contract consensual, since the rights and obligations of the parties arise from the moment the contract is concluded and the supplying organization undertakes to supply energy to the subscriber during the contract; in addition, it is a paid and reciprocal contract and is classified as a public contract.

The parties to this agreement are the energy supplying organization and the subscriber. Energy supplying companies are considered to be commercial organizations that sell produced or purchased electrical and (or) thermal energy to consumers.

A subscriber under an energy supply agreement (energy buyer) may be legal or individual. Entity can receive energy either for direct consumption or for resale. Citizens, as a rule, they conclude an electricity supply contract in order to obtain energy for household consumption. However, the contract may provide for the use of energy and for the provision of entrepreneurial activity.

The Civil Code does not contain special requirements for the form of an energy supply agreement. Therefore, when formalizing it, the general provisions on the form of transactions must be observed. When concluding a power supply contract with a subscriber - legal entity simple writing is required. Registration of contractual relations occurs by "actual connection" in the prescribed manner to the connected network (clause 1 of article 540 of the Civil Code). The actual connection is preceded by the submission by the citizen of an application from the power supply organization, inspection of his wiring, sealing of the meter, etc., after which, if their compliance with the current technical requirements is established, the power supply organization opens a personal account in the name of the subscriber and hands him a "settlement book" for an extract payment documents for the used electricity. Break in serving, termination or restriction of energy supply are possible: - by agreement of the parties; - if the unsatisfactory condition of the subscriber's power plants threatens an accident or poses a threat to the life or safety of citizens; - if necessary, take urgent measures to prevent or eliminate an accident in the system of the power supply company.

The contract for the sale of real estate is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434).

Failure to comply with the form of the contract for the sale of real estate entails its invalidity.

Commentary on Article 550

1. Paragraph 1 comment. Art. provides for special rules regarding the form of the contract for the sale of real estate. Such an agreement must be concluded in writing by drawing up a single document signed by both parties. Other variants of the written form of the contract known to the domestic legal order, for example, the exchange of documents by means of postal, telegraph, electronic and other communications (see clause 2 of article 434 of the Civil Code), are insufficient for its conclusion (see Resolution of the FAS of the Volgo-Vyatka District of July 2, 2007 g. N A43-2514 / 2007-23-64).

2. In accordance with paragraph 1 of Art. 452 of the Civil Code, an agreement on amending or terminating an agreement is made in the same form as an agreement, unless otherwise follows from a law, other legal acts, an agreement or business customs. Consequently, the agreement to amend or terminate the contract for the sale of real estate must also take the form of a single document signed by the parties.

3. The contract of purchase and sale of real estate is considered concluded from the moment of signing a single written document by both parties. The exception is the contract for the sale of residential premises (see article 558 of the Civil Code) and the contract for the sale of the enterprise (see article 560 of the Civil Code), which are subject to state registration and enter into force from the moment of their registration (clause 3 of article 433 of the Civil Code).

4. Paragraph 2 comments. Art. establishes the special consequences of violation of the written form of this agreement (cf. general rules clause 1 of Art. 162 GK). Failure to comply with the form of the contract for the sale of real estate - its execution orally or in violation of the requirements of a single written form - entails the invalidity of the contract.

Under the contract for the sale of real estate, the seller undertakes to transfer to the buyer's ownership a land plot, building, structure, apartment or other real estate, and the buyer undertakes to accept this property and pay the price determined by the parties for it (clause 1 of Art.549, clause 1 article 454 of the Civil Code).

The contract for the sale and purchase of real estate is consensual, onerous, mutual. The seller of immovable property may be the owner of immovable property or a person specially authorized by him by virtue of the law or contract. The contract for the sale of real estate must be concluded in writing by drawing up one document signed by the parties. Failure to comply with the established form entails its invalidity (Article 550 of the Civil Code). The contract for the sale of real estate (with the exception of the contract for the sale and purchase of residential premises) is considered concluded from the moment the parties sign a single document, which formulates all its essential conditions. The transfer of ownership of real estate from the seller to the buyer is subject to state registration. In the absence in the contract of a clause on the distribution of costs for state registration of the transfer of ownership, these costs should be borne by the seller.

The essential terms of the contract for the sale of real estate include the conditions on the subject of the contract and on the price of the real estate itself. When concluding an agreement, special attention should be paid to identifying the object by determining the location of real estate on the corresponding land plot or as part of other real estate. It should be noted that if the seller of the building is not the owner of the land plot on which it is located, the same rights to use the corresponding part of the land plot and under the same conditions as that belonged to the seller are transferred to the buyer.

Based on the characteristics of various categories of real estate, the law defines special rules for their purchase and sale:

1. If land plots are subject to sale and purchase, then they must first go through the state cadastral registration, and also not be withdrawn or restricted in circulation (Art. 27 Land Code). Moreover, the seller is obliged to provide the buyer with information about the encumbrances of the land plot and restrictions on its use.

2. There are features of the sale of residential premises, which consist in the fact that the sales contract living quarters is subject to state registration and is considered concluded from the moment of such registration (clause 2 of article 558 of the Civil Code), an essential condition of the contract for the sale of a house, apartment, part of a residential building or apartment, other housing in which persons who retain, in accordance with the law, the right to use this premises after its acquisition by the buyer is a list of these persons indicating their rights to use the residential premises being sold (clause 1 of article 558 of the Civil Code), and that the sale of residential premises in which minor members of the owner's family live is allowed only with the consent of the guardianship authority and guardianship (clause 4 of article 292 of the Civil Code). Also if it comes on the acquisition of premises in a multi-apartment residential building, then a share in the right of common ownership of common property in the house (stairs, elevators, attics, basements, land plot with elements of landscaping and improvement, etc.).