Print out a pre-purchase home sale form. Mandatory points when compiling
Preliminary agreement buying and selling a house will guarantee the conclusion of the transaction. Using the sample, it is easy to prepare your own document that protects the interests of the seller and the buyer. How to do this is described in this article.
How to draw up a preliminary contract according to the model of 2018 - 2019
Before proceeding with the execution of a transaction for the purchase of a residential building, it is necessary to study the preliminary contract for the sale of a house of the 2018-2019 model. This will help you navigate what steps the law now allows the seller and the buyer to take to protect their rights.
First, you should pay attention to the form of the agreement on the future transfer of rights: according to paragraph 2 of Art. 429 Civil Code Russian Federation, the form of the preliminary contract must correspond to the form of the main one. The contract for the sale of a house, according to Art. 550 of the Civil Code of the Russian Federation, is always drawn up in the form of a written document signed by all participants in the transaction. Several persons can act on the side of the seller and the buyer.
There are 2 cases when an additional notarization is required:
- a share in the right of common ownership is sold;
- one of the parties to the transaction is a minor.
Consequently, the preliminary contract in such situations will also need to be notarized additionally (in pursuance of paragraph 2 of article 429 of the Civil Code of the Russian Federation).
In practice, a preliminary contract is concluded when the parties are not able to immediately sign the main one. For example, in a situation where:
- a person is registered in the house, which must be removed from registration before the transfer of housing;
- it is necessary to obtain additional consent to the transaction (for example, guardianship and guardianship authorities, if the rights of a minor are affected);
- there are other circumstances that prevent the prompt conclusion of the transaction.
Conditions of the preliminary contract
The law does not restrict the parties in the freedom to include in the agreement any conditions that they consider possible. It is imperative to specify the essential terms of the main contract for the sale of a house:
- subject described in as much detail as possible;
- price or method of its determination;
- a list of citizens who can retain their right to live in a cottage.
In addition, it is necessary to specify the term for concluding the main contract. If it is not defined, the main contract must be concluded within a year from the date of signing the preliminary one (clause 4, article 429 of the Civil Code of the Russian Federation).
IMPORTANT! No rights or obligations can arise from the preliminary sale and purchase agreement, except for the obligation to conclude the main sale and purchase agreement (see the decision of the Odoevsky District Court of the Tula Region dated February 7, 2018 in case No. 2-3/18).
As a security for the fulfillment of the obligation to conclude the main contract, such a method as a penalty is used. This does not contradict the law (see the decision of the Avtozavodsky District Court of Moscow). Nizhny Novgorod dated February 6, 2018 in case No. 2-165/18).
Preliminary contract deposit
The deposit, which, in accordance with paragraph 4 of Art. 380 of the Civil Code of the Russian Federation may be provided for in a preliminary contract - this sum of money transferred to the seller by the buyer. It performs two functions:
- Security. If the party refuses to conclude the main contract, it becomes a kind of payment for lost profits or opportunities.
- Payment. Upon entry into force of the main contract, the amount is included in the payment under it.
The deposit can only be paid in cash, its size is not regulated and depends on the agreement of the parties. But if, within the framework of the preliminary contract, the full cost or a significant part of the cost of the object is paid, even if such payment is called a deposit, the preliminary agreement can be qualified as the main one with the prepayment condition (see clause 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No. 54 , hereinafter referred to as Decree No. 54).
Disputes related to the actual non-conclusion of the main contract
Quite often, a preliminary contract consists of only a few clauses and does not contain a mechanism for implementing the obligation to conclude the main contract. This is a mistake, since the absence of clearly defined conditions may make it impossible to speak of their violation.
The obligations will terminate if, before the expiration of the preliminary agreement, the parties do not send each other an offer to conclude the main one. If the form of its direction is arbitrary, and not expressed in the form of a draft main agreement, it will be difficult to demand both coercion to conclude and compensation for damages caused by failure to fulfill the obligation (see the decision of the Kievsky District Court of Simferopol dated February 16, 2018 in case No. 2- 183/18).
If the contract provides for a deposit and it has become a partial compensation for losses, the rest can be recovered in the part not covered by the amount of loss (see clause 2 of article 381 of the Civil Code of the Russian Federation, decision of the Ivanovsky District Court dated December 29, 2017 in case No. 2-2199 / 17) .
But the main contract may not be signed within the period established for this, for reasons beyond the control of the parties, for example:
- due to the bank's refusal to reissue the collateral;
- seizure of a property;
- death or incapacitation by the seller or buyer, his entry into places of deprivation of liberty.
In this case, the requirement to compel the conclusion of the main contract or compensation for damages caused will be rejected by the court (see the decision of the Leninsky District Court of Murmansk dated February 20, 2018 in case No. 2-572/18).
Other categories of disputes from the preliminary contract for the sale of a house
There are disputes related to the requirement to recognize a preliminary contract for the sale of a house as not concluded. They are often associated with the fact that the preparation of the draft document was carried out without taking into account all the requirements of the law in terms of agreeing on essential conditions.
One of them will be the identification of the subject. To individualize the subject, it is sufficient to indicate in the contract the cadastral number of the property (see Article 554 of the Civil Code of the Russian Federation and clause 2 of Resolution No. 54). However, this object may not be owned by the party at a particular moment, since the preliminary agreement expresses only intention (see the decision of the Khostinsky District Court of Sochi dated December 25, 2017 in case No. 2-2787 / 17).
It should be borne in mind that if the preliminary contract has terminated, there is no need to recognize it as not concluded, it is enough to file a claim for the recovery of the amount of the deposit as unjust enrichment (see the decision of the Oktyabrsky District Court of Tomsk dated December 14, 2017 in case No. 2-3025 / 17 ).
How to Download and Fill out a Sample Preliminary Contract for the Sale of a House
To fill out a sample preliminary contract, you must have documents identifying the object with you. When drawing up a contract, you must also adhere to the following rules:
- Signatures of both parties must be handwritten;
- the transfer of the deposit must be confirmed by a receipt, its amount must be less than 100% of the value of the object;
- the obligations that must be fulfilled in order to be able to conclude the main agreement should be spelled out as detailed as possible;
- the term for concluding the main contract must be determined in a way that does not create a double interpretation.
You can download the preliminary contract for the sale of a house at the link: Preliminary contract for the sale of a house - sample.
When preparing a preliminary contract for the sale of a house, it is necessary to pay attention to judicial practice, it will allow you to avoid mistakes and create a document that optimally protects the rights of both parties.
When the sale of real estate is being prepared, a preliminary contract for the sale of a house is appropriate. It confirms the obligations of the parties to conclude a deal over time: in a month, two, by a certain date. The reasons for the postponement of the transaction may be different: an incomplete amount of money from the buyer, an incomplete set of documents in the hands of the seller.
The document protects the interests of the seller and the buyer, insures against possible dishonesty. The task of the preliminary contract is to confirm the deposit, if any. And the price of the house remains at the level agreed in the contract by the parties.
The form of the conclusion of the contract is written, the same as for the main document. Notarization is also required. If these conditions are neglected, the preliminary contract will be declared null and void.
If the essential terms of the transaction were not spelled out in the preliminary contract, it must contain the procedure for their coordination. In case of delay or failure to fulfill the terms of the preliminary agreement by one party, it shall compensate the other party for losses.
PRELIMINARY AGREEMENT
PURCHASE-SALES
HOUSES
City ___________. "____" _______________
We, (name and data of the seller) ______________________________, on the one hand,
and (name and details of the buyer) ______________________________, on the other hand,
have entered into this Agreement as follows:
1. (Name of seller)_____________________ has the intention to sell (Name of
Buyer)_________________________________________________________ RESIDENTIAL BUILDING
by the address:_______________________________________________________________________,
sq.m,
cadastral number ______________________________________________
___________________________________________ (other characteristics).
2. (Full name of the seller) ______________ belongs to the specified residential building on
on the basis of __________________ (the document-base on ownership, its details), that
confirmed by ___________________ (indicate the data of the certificate of ownership).
3. (Full name of the seller) _________________ undertakes to sell a residential building (Full name
buyer) _____________ after ______________________ (indicate the event or period).
4. In accordance with the intention to sell (full name
seller) ________________________________________________________________________, (full name
buyer) ________________________ undertake to conclude a contract of sale in
term______________________________.
5. (Buyer's full name)____________________________________________ pays for (Buyer's full name)
seller) __________________________ the value of the specified residential building is fully
in the amount of ________________ rubles in the following order:
Cash - on time ________________ in the amount of ___________________ rubles,
The rest of the amount is paid in the amount of __________ rubles by transferring money to
Bank account.
6. The parties have the right to terminate this agreement by mutual agreement before its commencement.
execution, in this case, the funds specified in clause 5 are returned to the buyer
fully.
7. Losses related to this contract and the main contract of sale,
reimbursed by the party not performing this contract. However, the amount of this agreement
included in the cost of damages.
8. In the main contract for the sale of a residential building, the parties establish not
conditions stipulated in this agreement.
9. Evasion of the conclusion of the main contract has a consequence to the requirement for
compelling the evading party to sign the main contract in judicial order.
10. In case of failure to conclude the main agreement in the time specified in this agreement
term and in the absence of a sent proposal to sign the main contract of another
The deal to purchase a home may be delayed. Regardless of the reason, the only correct and legally correct solution in such a situation is the conclusion of a preliminary contract, which deals with the purchase and sale of the house. The presence of such an agreement in the future guarantees the signing of the main contract on the conditions previously established by the parties and within the period specified by them.
The essence of the contract
A preliminary contract is a document confirming the intention of one person to purchase real estate, and the second - to sell it. It can be concluded regardless of whether the building has already been built or is still under construction. True, most lawyers still do not recommend concluding an agreement in the latter case. The reason is that the document may be considered illegal, since, in fact, the property and the rights to it are absent at the time of signing the paper.For each of the parties, this document has its own attractiveness:
- for the buyer, this is a guarantee that the house will not be sold to someone else who will offer the best price, and the price itself will not increase many times by the time the main contract is concluded;
- for the seller, this is a confirmation that he has found a buyer, and the property will be sold within the period specified in the contract.
Interestingly, when applying for a mortgage or issuing a loan to buy a house, Sberbank requires its customers to have a preliminary agreement. In this way, the borrower confirms that he is indeed taking out a loan to buy a house.
What is specified in the contract?
In order for the document to have legal force after the conclusion, the following points must be indicated in it:- Passport details of the parties. When drawing up a contract, it is important to compare the specified data with a passport. If the passport details do not match, and the person refuses to make a deal, you may lose the deposit. The surname, name and patronymic of the parties, registration address, series and number of the passport, date of issue are indicated.
- Deadline for fulfillment of obligations. It is advisable to indicate a specific date in order to avoid ambiguous interpretations. If the date of signing the main contract is not specified, then the obligations must be fulfilled within a year. This period is stipulated by the Civil Code of the Russian Federation.
- Indication of the subject of the transaction, that is, a house with certain technical and legal characteristics. The address of the building is indicated, characteristics according to project documentation, the name and basic data of the document confirming the right of the seller to dispose of the subject of the transaction are indicated.
- Property value. The purchase price must be indicated. The price stipulated in the agreement cannot be changed in any way and is considered final. It is also important to indicate how exactly payment will be made - in cash or by bank transfer. The currency is also indicated.
It should be noted that the contract is not registered in the State Real Estate Cadastre and does not require the presence of a notary at the conclusion. Although, if desired, the parties can protect themselves by notarizing the paper.
The structure of the document and its drafting
The preliminary contract is drawn up in the same way as a standard sales contract in writing. You can make it yourself, or use a standard form.In the document, the data is indicated in the following sequence:
- Title of the document, city and date of compilation.
- Details of the parties, as indicated above. These include passport information. If the contract is with legal entity- details of the organization.
- List of clauses and sub-clauses of the agreement. The main points include:
Indication of the subject of the contract;
- the terms of the agreement;
- conditions of the main transaction;
- responsibility of the parties;
- force majeure circumstances and ways to solve problems that impede the implementation of the contract. For example, within what time it is necessary to notify the other party about force majeure;
- additional terms of the agreement. - The paper usually ends with the signatures of the parties with a transcript.
If the house is sold with land
Often a house is sold with land plot. In this case, this provision must be reflected in the preliminary contract.Such a document should clearly state that the house is being sold together with a land plot, which has a number of characteristics - address, area. Also, the contract indicates the name and characteristics of the document confirming the ownership of the seller.
These provisions must be written separately in the contract. That is, in one paragraph there is a description of one subject of the transaction - a house, in the next - another - land.
In addition, the paper states:
- the total value of the transaction;
- the cost of the house is indicated separately;
- the value of the land, excluding the value of the house.
Deposit in the preliminary contract
Quite often, when concluding a preliminary contract, the buyer transfers a deposit to the seller, the amount of which is deducted from the total cost in the calculation. Data on the deposit and its amount must be indicated in the document.If the transaction is canceled due to the fault of the buyer, the deposit is not returned and remains with the seller as compensation. If the seller cancels the transaction, the deposit is returned to the buyer in double size.
On the basis of the contract, it is impossible to make a deposit in the full amount of the value of the property. Otherwise, you may lose both the deposit and the purchase itself. Additionally, in case of violation of the concluded agreement, any of the parties has the right to apply to the court with a demand for payment of monetary compensation by the violating party.
What to pay attention to?
When drawing up and signing a paper, the parties should pay attention to the following points:- The entered information must correspond to those that will be reflected in the main contract. Otherwise, your contract will be invalidated. Check all data carefully.
- The parties have the right to stipulate and include in the contract data on the amount of the forfeit or fine in case of violation of the terms. It is advisable to indicate the amount of the penalty for late payment. For example, 1% of the transaction value for each day of delay.
- A clause on the extension of the contract for a new term is possible. It is advisable to specify the terms of the extension and their number. Otherwise, the parties can indefinitely extend the contract, slowly concluding a final deal.
- Before concluding a transaction, it is important to check its purity. Check the papers on the house with the owner. They must have all the necessary signatures and seals. It would be useful to check the cleanliness of the house with the help of Rosreestr.
- Indicate in the contract that from the moment the contract is signed, the seller reserves the building for the buyer and stops advertising the object, selling it to third parties.
- It is advisable to pre-register a clause on dispute resolution. Will negotiations be held first or can the parties immediately sue in case of violations.
- If you conclude an agreement with a trustee, it would be useful to check the power of attorney to see if it has expired.
Termination of an agreement
One of the features of the preliminary contract is that none of the parties can terminate it on their own initiative. Otherwise, the second party has every right to sue and force the other party to comply with the previously agreed conditions. But still, there are a number of cases that allow termination of the contract:- If after the expiration of the preliminary agreement the transaction has not been concluded and at the same time neither party is going to force the other to fulfill obligations, the agreement will be canceled automatically.
- If both parties have mutually agreed to terminate the contract.
- Terms of termination of the transaction may be stipulated in the contract itself. This is rarely practiced, but it does happen.
- The presence of force majeure is also a good reason to terminate the transaction. For example, if the house being sold burned down in a fire, then it will no longer be possible to sell it, and the contract is automatically terminated .
A preliminary contract for the sale of a house is concluded when, for some reason, the parties cannot directly conclude a contract of sale. Such a situation may arise, for example, if the buyer does not have the entire required amount in stock, or the seller does not have all Required documents(did not go through the procedure for entering into an inheritance, not received judgment etc.).
The undoubted advantage of concluding a preliminary contract for the sale of a house is that both the buyer and the seller in the future get the opportunity to conclude a contract of sale concrete house at an understandable cost.
However, despite the widespread practice of concluding preliminary agreements today, not everyone understands its essence and often does not pay due attention to such an agreement. In the end, this can lead to unpleasant consequences.
What is a preliminary contract for the sale of a house?
In order to properly assess possible risks, you should, first of all, have an idea of \u200b\u200bwhat a preliminary contract is and in what form it should be drawn up.
According to paragraph 1 of Article 429 of the Civil Code of the Russian Federation, a preliminary agreement obliges the parties to conclude an agreement in the future for the transfer of property rights, the provision of services or the performance of work. That is, in our case, the contract imposes on the parties an obligation to conclude a deal in the future with a specific property at a predetermined price.
In order for the contract to be subsequently considered valid, one should carefully adhere to the statutory form of drawing up the contract in accordance with paragraph 2 of Art. 429 of the Civil Code of the Russian Federation.
The form of drawing up a preliminary contract is similar to that for a regular contract of sale. The main difference lies in the fact that a preliminary contract for the sale of a house does not need to be registered with Rosreestr.
Four main problems of concluding a preliminary contract for the sale of a house
The first problem is that sometimes excessive functions are assigned to the preliminary agreement and one of the parties to the agreement expects too much from it.
Let's look at a common example. The parties conclude a preliminary contract and include in it a clause on making a deposit. The buyer gives the seller a deposit and ... problems can begin here.
The fact is that the transfer of a deposit under a preliminary contract is not provided for by law. According to the Civil Code of the Russian Federation, a deposit is recognized as an amount transferred by one of the parties on account of payments due to it under a contract of sale (!) to ensure its implementation.
The preliminary agreement generates only obligations to conclude such an agreement in the future. That is, according to the preliminary agreement, neither the transfer of real estate nor the transfer of any sums of money is provided.
As a result, if one of the parties refuses to fulfill its obligations under the preliminary agreement, the transferred amount will not be considered as a security deposit at the court with all the ensuing consequences. That is, if the buyer, for a justified reason, refuses to conclude a sales contract, he can also reasonably demand the return of the “deposit” amount. And the court, most likely, will be on his side.
The second problem of the preliminary contract, on the contrary, is to downplay its significance.
That is, having concluded a preliminary agreement, one of the parties does not consider it necessary to comply with its terms, believing that no serious consequences for it will result from this.
However, in accordance with paragraph 4 of Art. 445 of the Civil Code of the Russian Federation in the event of groundless evasion from fulfilling obligations under a preliminary sale and purchase agreement by one party, the other party has the right to go to court. And most often, the courts satisfy such claims. Moreover, in addition to forcing the conclusion of the main contract of sale, the court often obliges the unreasonably evading party to indemnify the other party for damages.
The third problem is the absence of the subject of the contract.
In some cases, today it is practiced to conclude a preliminary contract for the purchase and sale of a residential building when the house itself, in fact, is not yet owned by the seller. That is, the house is either not yet completed, or is not completely registered in the property (the seller did not enter into inheritance rights, etc.). Often such an agreement is proposed for conclusion by developer companies.
From a legal point of view, the validity of such an agreement is doubtful and it can be challenged in court by either party. At the same time, the established judicial practice decisions on such claims have not yet been formed, and the court, accordingly, can decide both on the validity of the contract and the need to fulfill obligations under it, and on its legal nullity.
The fourth problem is the desire to annul the contract.
This problem follows from the second and third. That is, one of the parties is trying to find a good reason to invalidate the contract. The invalidation of the preliminary sale and purchase agreement automatically releases the parties from the obligation to fulfill their obligations under the conclusion of the main sale and purchase agreement.
Such a problem arises in cases where the seller receives a better offer or the buyer finds a more profitable option for himself.
The grounds for invalidating the contract may be errors in its preparation, such as the absence of clauses established by law, or, conversely, the presence of clauses in it that contradict the current legislation.
How to avoid problems
The most important thing is to strictly adhere to the form of drawing up the contract. The subject of the contract must be clearly and unambiguously defined in the preliminary contract. Must be specified in the contract all documents on the basis of which the seller owns the house.
Make sure that the contract specifies all passport data of individuals and details of legal. In the event that one of the parties acts on powers of attorney, you must specify its details and make sure that this power of attorney really gives the right to make a purchase and sale transaction.
It will also not be superfluous make sure you are capable individual concluding an agreement with you and reflect this fact in the agreement.
And finally, it is necessary to prescribe in the contract clear terms in which the parties will have to conclude a contract of sale.
Compliance with these simple rules will help you achieve your goals and make a preliminary contract for the sale of a house a reliable and convenient tool for planning profitable real estate transactions.