Making a deposit when buying an apartment. How to draw up a standard agreement on making a deposit when buying an apartment: a sample
In case of purchase real estate, including apartments, there is a need between the parties to reinforce the agreements on a future transaction for the period of registration required documents. In this situation, an agreement on a deposit when buying an apartment can be the best option to meet the interests of the seller and the buyer.
A deposit is an amount of money transferred to the other party to provide guarantees for the conclusion of a contract in the future and, at the same time, serves as a means of ensuring the fulfillment of its conditions.
General rules making and determining the legal status of the deposit are established in Art. 380 of the Civil Code of the Russian Federation. They apply to any type of transaction requiring the performance of financial obligations. The purchase of real estate can also be secured by making a deposit to the seller, and in the future these funds will be taken into account in the final settlement.
The legislation establishes the following mandatory requirements for determining the subject of the deposit:
- It can be issued only in cash (the transfer of property or property rights cannot be a deposit);
- The transferred amount must subsequently be taken into account in the final settlement;
- The deposit is one of the ways to secure the obligation under the transaction;
- The condition on recognizing the amount of money as a deposit must be expressly provided by the parties in the text of the agreement, otherwise it is recognized as an advance payment.
Note! The legal content of a deposit and an advance is similar, therefore, the law provides that if the agreement on the transferred amount does not specify a condition on the deposit, this amount will be considered an advance.
The legal consequences of failure to fulfill the obligation to acquire real estate depend on the determination of the transferred amount as a deposit or in advance. If the buyer violated the terms of the contract, and it is not actually executed, the deposit remains with the seller. Otherwise, if the seller is to blame for the failure to fulfill the contract, he is obliged to return the amount of the deposit in double size.
It is this clearly regulated procedure for the onset of liability that makes it necessary in each specific case to indicate a reference to the transfer of a sum of money in the form of a deposit. If the obligation is terminated by voluntary agreement between the seller and the buyer even before the start of its actual performance, the deposit must be returned. A similar rule applies due to the impossibility of fulfilling the main obligation.
How to write an agreement and sample
Formally, the conclusion of an agreement on a deposit must be accompanied by the existence of a concluded contract for the alienation of an apartment. The legislation unequivocally establishes that a deposit can be issued only in confirmation of the conclusion of an agreement on the specified transaction.
However, in practice this sum of money is made at the stage of preparation for the transaction in order to protect both parties from a unilateral refusal to fulfill future obligations. Such a formal non-compliance with the norms of the law in most cases does not legal value because both parties are interested in the transaction.
To draw up an agreement, it is required to comply with a number of mandatory conditions in the form and content of the document:
- Draw up an agreement in the form of a written document signed by both parties;
- Indicate the details of the parties and the subject of the transaction, to ensure which the amount of money is transferred;
- Determine the amount of money transferred to the seller;
- Determine that the amount of money is a deposit;
- Establish that this amount is a security for the performance of the contract.
Note! The more detailed this agreement is, the less problems will arise during its execution or in case of violation of obligations.
A sample agreement can be found below in this article, however, to comply with all the intricacies of the law, it is worth using the help of a qualified specialist. Any real estate transaction involves the risk of losing property or money. Only an experienced lawyer will save the parties from the problems associated with the proper execution of documents.
After the conclusion of the agreement, the amount of money is transferred to the seller, which is noted in the agreement, or a separate receipt is issued. The agreement is drawn up in duplicate, each party receives its own text of the document.
Formally, within the meaning of Art. 380 of the Civil Code of the Russian Federation, an agreement on a deposit cannot be concluded before the completion of registration, since transactions with an apartment require state registration. This circumstance makes meaningless the legal value of the deposit when alienating the apartment. However, in practice this type of agreement is actively used by the parties, including in legal practice.
Is the deposit agreement a preliminary contract?
The legislation regulates that preliminary agreement(including the acquisition of real estate) is a way of establishing the obligation of the parties to enter into the main contract in the future. At the same time, the terms of the preliminary contract cannot contain provisions on the occurrence of monetary obligations in any form.
Thus, the deposit agreement cannot formally be considered as a preliminary contract for the following reasons:
- The agreement contains express monetary obligation;
- An agreement may be entered into to ensure the performance of a contract, but is not such by its legal nature.
Important! The deposit acts as a means of security for various types of contracts, but at present arbitrage practice The Supreme Arbitration Court of the Russian Federation points out that it is impossible to use the deposit when concluding a preliminary contract.
Thus, this agreement cannot be considered a preliminary contract by virtue of a direct indication of the law. However, his practical use when making transactions for the acquisition of an apartment, it lies precisely in the agreement of the parties essential conditions future contract - the subject, the amount of payment and the obligation to sell the apartment on the agreed terms.
What does not comply with the written form of the agreement entail?
This Agreement is not considered by law as an independent contract, and when determining the form of its conclusion, it does not indicate invalidity in case of violation of the form requirement. If the agreement is not in simple writing, and on the basis of oral agreements between the parties, it cannot be invalidated on this basis.
However, it is the written form that allows the parties to determine all the necessary conditions on the transfer of a sum of money, therefore, a violation of the form will not allow the parties to use the text of the agreement as proper evidence in the event of a dispute.
Is a receipt an agreement on a deposit
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One of the terms of the deposit agreement is an indication of the conditions for such a form of transfer Money in the text of the document. If you do not indicate that the money transferred is a deposit, it will be considered an advance.
For this reason, a document drawn up in the form of a receipt may contain a condition on a deposit. In this case, the receipt in its content will be an agreement on a deposit. If the parties do not indicate in what form the money is transferred to secure the performance of the contract, the amount of money will be considered an advance payment.
Is the deposit agreement subject to registration?
In Art. 380 of the Civil Code of the Russian Federation indicates the need to comply with a simple written form of an agreement, while there is no requirement that this document comply with the form of the main transaction. The acquisition of real estate requires registration with the Rosreestr authorities, however, legal relations for the transfer of a deposit are not an independent type of contract and are not subject to the state registration requirement.
Moreover, the legislation defines a deposit as a means of securing the conclusion of a contract. Means and methods of security are subject to state registration only in cases expressly established by law (for example, pledge of real estate).
The form of the document "Deposit agreement (option 1)" refers to the heading "Purchase and sale agreement, contracting agreement". Save a link to the document in in social networks or download it to your computer.
Deposit agreement
__________________ ______________ (date in words)
I, _______________________________________________________________,
residing in _____________________________________________________________ and
living
in ______________________________________________________________________
have entered into this agreement as follows:
1. I, ____________________________________________________________,
I issue a deposit in
the amount of ____________________________ rub. on account of those due from me
Rubles under the contract of sale
residential building owned by ___________________________________________
and located in _____________________________________________.
2. I, ________________________________________________________,
who received a deposit in the amount of _______________________________________ rubles,
in case of non-fulfillment of the contract (refusal to conclude a contract of purchase
sale of a residential building belonging to me) I pay gr.__________________
Rubles (double the amount of the deposit).
In case of non-fulfillment of the contract through the fault of gr._________________________
a deposit in the amount of _____________________________ rubles remains with
gr.___________________________________________________.
3. Articles 380 and 381 of the Civil Code of the Russian Federation were explained to the parties by the notary.
4. The costs of concluding an agreement shall be paid by the parties in equal
5. A copy of this agreement is kept in the files of _______________
the state notary's office at the address: ________________________
on a copy issued gr. ___________________ and gr.____________________
Signatures of the parties
Certifying inscription of the notary's office
View the document in the gallery:
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When planning to purchase housing, you need to familiarize yourself with important points so as not to overshadow a significant event in the future. For example, study the deposit agreement when buying an apartment, a sample of a future sale and purchase agreement, the amount of the advance and the presence of a pile of documents. When the buyer and the seller have found each other, the transaction is not concluded this very minute. As a rule, this moment is postponed for a week or more. And in order for no one to change their minds about their intentions to sell / buy real estate, a deposit acts as a safety net.
Definition of deposit
Deposit - a guarantee of the conclusion of the transaction, expressed in cash. The definition of the term is given in Article 380 of the Civil Code of the Russian Federation. That is, this is the amount that is transferred by one party to the contract to another as a guarantee of the transaction and against future payments.
In the case of transactions for the sale and purchase of housing, as a rule, the buyer, who has opted for a particular apartment, leaves a deposit to the seller before the transaction. Thus, the buyer is instructed not to change his mind and bring his choice to the signing of the contract. And the seller, having taken a financial obligation, guarantees to stop the sale process before the conclusion of the transaction. The amount is entered into the deposit agreement when buying an apartment.
This form of guarantee has been known for a very long time and is popular in modern society.
Why not immediately deal?
Such a question may be of interest to the layman who is not familiar with the rules of sale. This is the situation: a potential buyer (alone or with a realtor, it doesn't matter) comes to see the apartment, everything suits him, and he agrees to buy it. The seller also likes everything, and they agree on a deal. But for a complete transfer of rights, it is necessary: a full package of documents from both sides, the entire amount of money from the buyer and a free at the moment, necessarily verified, notary. A number of issues cannot be resolved in an hour or two. Therefore, for careful preparation of documentation, time is needed for which buyer No. 2 can come and offer $ 100 more for housing, then the applicant for purchase No. 1 may be left without an apartment. Or, on the contrary, the first buyer went the next day to look at an apartment cheaper and agreed to buy it, then the seller remains out of work. All the charms of the deposit in its functions. Therefore, when buying an apartment, a sample of which will be discussed below, is a prerequisite in this mercantile society.
Deposit function
- The guarantee role is the consolidation of the obligations of the two parties, which, in the event of a refusal or a deal with third parties, incur material losses.
- Payment role - when the terms of the contract are fulfilled, the deposit is an advance payment against future payment.
- Evidential function - proof that the transaction will be completed.
When selecting housing, the realtor warns the client (buyer) about the need to make a deposit and encourages him to sign a deposit agreement when buying an apartment. A sample document can be drawn up in any form, but certain information must be indicated.
How to draw up a deposit agreement?
Before making a deposit, an agreement is concluded and a preliminary copy of the contract for the sale of real estate is drawn up, which is not subject to state registration. registration, does not give the buyer full ownership of the home, is the legal basis for the transaction in the future.
The deposit agreement when buying an apartment must contain the following mandatory information:
- Title of the document, place of compilation and date.
- Passport details of the parties to the agreement.
- List of owners of real estate for sale.
- The total value of the property.
- The object for which the guaranteed amount is given (address, area).
- The amount of the deposit (in words and figures).
- Terms of fulfillment of obligations.
- Penalties for failure to comply with the terms of the agreement.
- Certification of the document by the signatures of the parties.
The agreement is drawn up in two copies. The deposit is not issued by any other documents, including a receipt. It is recommended to transfer money to the seller in the presence of third parties. And yet, an agreement on a deposit when buying an apartment (a sample of this document) does not require. But for a greater guarantee of a refund, it is better to contact a specialist.
What is the optimal deposit amount?
This is a question that interests both parties (buyer and seller) before signing an agreement on depositing a guaranteed amount, which obliges the further purchase of real estate. The size of the deposit when buying an apartment is negotiated in each case individually, since it is not fixed by any legal norms. Usually it is 5-10% of the final amount of the apartment.
The higher the deposit, the more expensive the penalties for non-compliance with the obligations of the agreement and the likelihood of a transaction is maximum.
Buying an apartment: advance payment or deposit?
The main difference between these two sums of money is the degree of responsibility of the parties. If the obligations are met, the deposit does not impose any liability on the parties and is credited against the future payment for the price of the property. But:
- If the seller refuses to conclude a contract for the sale of housing after receiving the deposit, then he returns the buyer the amount in double size (the Civil Code of the Russian Federation).
- If the buyer changes his mind about purchasing the property, then the seller reserves the right not to return the deposit.
These two conditions are met except in cases of force majeure. In this case, the deposit is returned to the buyer without imposing sanctions on the parties.
In the case of an advance payment, if either party refuses to further rewrite the rights to the apartment, the amount of the payment made is simply returned to the owner (buyer).
Deposit transfer rules
A document certifying the truth is a receipt for the purchase of an apartment. The deposit that the buyer makes as a guarantee of the purchase of housing in the future, in addition to the agreement, must be issued with a receipt confirming the transfer. This document is filled out by the seller by hand and without corrections. The requirements are the same as when drawing up an agreement on a deposit: the parties; the purpose of the payment and the reason for the transfer; place of writing, size of the amount; link to the preliminary contract; date and signature.
It is obligatory to have the originals with the deposit If the property was purchased in marriage or privatized for the whole family, then when drawing up a preliminary contract, an agreement on a deposit, the presence of all owners is required.
Deposit when buying an apartment: form
AGREEMENT ON DEPOSIT (data fictitious)
__________ "___"________ ____
Nikitin Nikita Nikitovich, passport series PP N12345, issued by _________ District Department of Internal Affairs, June 15, 2005, registered at the address: Moscow, st. Moscow, 1/1, hereinafter referred to as Salesman, and Olegov Oleg Olegovich, passport series OO N 54321, issued by _________ District Department of Internal Affairs, May 16, 2004, registered at the address: Moscow, st. Krasnaya, d. 2/2, hereinafter referred to as Buyer,
have entered into this agreement as follows:
- The Seller undertakes to sell (transfer ownership), and the Buyer undertakes to buy (acquire ownership) in the future up to _____________ year an apartment located at: _______________________________ at a price of __________________ (____________) rubles.
- This apartment consists of _______ living room. total area apartments, excluding the area of \u200b\u200bloggias (balconies) is _____ (in words ______________) sq. m, located on the _________ floor of a residential building. Cadastral number _________________.
- In order to ensure the fulfillment of its obligations, the Buyer pays the Seller a deposit for the purchased apartment in the amount of ____________ (_____________) rubles.
- The term for the conclusion of the contract of sale is _______. Or specify a condition after which the transaction will be completed within a few business days.
- The final cost of the apartment is _____________________ rubles.
- In case of non-fulfillment of the contract through the fault of _____________________________, a deposit in the amount of _________________ (___________________) rubles remains with _____________________________________.
(FULL NAME) - The agreement is made in 2 copies, one for each of the parties.
The need for a deposit arises if you have found an apartment that you want to buy, and you will have money to buy it later. And you ask the landlord to sell it to you, but after a while.
Just like that, no seller will wait. the deposit convince him of the seriousness of your intentions and make you agree to the wait.
What is the essence of the assignment?
The meaning of this term is given Civil Code RF and recorded in Article 380.
It says that a deposit should be understood as a certain amount of money that is transferred by one party to the transaction to the other party in order to ensure the fulfillment of conditions.
Deposit amount included in the total amount of the transaction. If, for example, you buy an apartment for 1 million rubles, and the deposit is 100,000 rubles, then you will have to pay only the remaining 900,000 rubles.
Often the question arises, how to make the initial payment when buying an apartment - in the form of a deposit or an advance? The difference lies in the fact that the deposit imposes on both parties to the transaction the obligation to conclude a certain contract. In this case, the acquisition of an apartment.
If the seller does not wait until the buyer pays the entire cost of the apartment, then he will have to return the amount of the deposit, doubled.
If the buyer finds himself another home and abandons the previous option, then the entire the deposit will remain with the seller. These requirements are spelled out in Article 381 of the Civil Code.
The advance can be returned at any time without any consequences.
That is, the deposit forces both parties to the transaction to adhere to the agreements reached. Therefore, when making a deposit, and not an advance, the risk that you will be “thrown” is much less.
Formation of the contract and its conditions
The contract is drawn up only in writing and if the seller has the original certificate of ownership. Compose you can do it yourself or with a notary. The second method is much more reliable for a number of reasons.
The notary certifies that both parties, concluding the contract, were of sound mind and were aware of their actions. He also confirms that the transaction was made voluntarily.
And he will definitely warn the parties about the existence Article 381 of the Civil Code of the Russian Federation. Then no one will be able to say that he did not fulfill the terms of the contract just because he did not know what it threatened.
For reliability, the parties may, after deciphering their signatures, add "I am familiar with Article 381 of the Civil Code of the Russian Federation."
In addition, the notary knows how to draw up a contract in such a way as not to miss any important information.
In order to correctly draw up when buying an apartment, the contract must reflect such items as:
Before signing the deposit agreement, it is advisable to conclude a preliminary sale and purchase agreement. The said agreement will be an appendix to it.
In the contract all the terms of the future transaction are prescribed purchasing an apartment.
If the owner of the housing is married or was married at the time of receiving the housing, ask his wife (wife) to write a consent to the sale of the apartment. Better yet, get it notarized.
The law does not impose any requirements on him. But traditionally, the amount of the deposit when buying an apartment is equal to 5-10% of the transaction amount. If you buy a home for 2 million, then the deposit is in the range from 100,000 to 200,000 rubles.
If you are confident in your desire to buy an apartment, you can offer a deposit greater than this amount. Hearing from the seller that the minimum deposit is enough for him, you should be wary.
If a home is purchased with maternity capital and costs a little more than this amount, the deposit is often the difference between the size of the MK and the cost of the apartment.
How does the actual transfer of money take place?
Usually money is transferred in cash at the time of signing the contract. At the same time, all owners of the apartment that is for sale must be present. And everyone is obliged to write that he received a deposit. Its amount is distributed among the owners in accordance with the share of each in the apartment.
The fact of the transfer of the deposit must be confirmed by witnesses not from among the participants in the transaction or members of their families. A notary is suitable as one of the witnesses if you conclude an agreement with him and transfer money in his office.
When making a transaction through a realtor, it is also possible to transfer money through it.
If the apartment officially has one owner, but it was acquired when he was married, the presence of the spouse during the transfer of the deposit is required.
Is it possible to transfer money without a contract, by receipt?
Yes, no one can force you to conclude. If you decide to limit yourself only, observe the following requirements for its design:
Video: What is a deposit in housing transactions?
In the video, the lawyer explains what the essence of the deposit is and the features of this agreement.
It is told what gives the payment of a deposit to the parties who have reached an agreement on the sale of real estate, which Negative consequences will occur in the event of a breach by one of the parties of the obligations under the transaction.
When people are faced with the need to purchase or sell residential real estate, one of the most important documents is an agreement on a deposit for the purchase of an apartment, a sample of which should be available to everyone. It is also important to understand its legal nature, to know how to draw it up correctly in 2019, what information it must reflect. We'll talk about this in the article.
Download sample documents
The essence of the deposit agreement
Today, a deposit is the most common method that allows you to secure the execution of a transaction with a real estate object. The agreement on its transfer is preliminary in relation to the main agreement, which the participants plan to draw up in the future.
Sample contract of deposit when buying an apartment between individuals usually required by everyone who enters into legal relations when selling or buying real estate.
The meaning of the contract is that the parties confirm the seriousness of their intentions. The seller undertakes to sell, and the buyer undertakes to purchase the object under certain conditions, and a sum of money is transferred for the guarantee. Its size is not regulated by law, it is determined by agreement between the parties to the transaction.
Each real estate agency offers its clients to draw up such an agreement. There is no urgent legal need for this, since the law does not establish the obligation to draw up this document. But in reality, only close relatives do without such an agreement. Its practical meaning is huge:
- people really get a guarantee, fixed on paper, that in the future the transaction will be completed;
- the buyer transfers the money to the seller, which he can competently dispose of. For example, a deposit can pay off utility bills;
- the parties in this form agree on the main conditions for the subsequent sale and purchase: the object itself, its characteristics, cost.
If the agencies already have developed forms of the deposit agreement when buying an apartment, then when the transaction is made without intermediaries, people have to turn to lawyers.
Services for compiling such a document are priced differently depending on the region. The approximate price level is from 500 to 3000 rubles. The trick is that you can not spend this money, but simply download a sample deposit agreement when buying an apartment from a reliable source.
Differences between a deposit and an advance, its size and return when selling an apartment
A sample contract, commonly used in practice, demonstrates actual difference between deposit and advance. It's not about size or return order, it's about:
- advance payment is transferred by one participant to another with already issued legal relations. For example, the parties have entered into a supply agreement, the obligation to pay for the goods occurs after it arrives at the warehouse, but the buyer provides the seller with an advance payment, that is, an advance payment under the agreement;
- the advance has a purely payment function and cannot be considered as a way to ensure the fulfillment of an obligation. It is returned if the parties do not fulfill their obligations under the agreement;
- the deposit is really only a guarantee. On the one hand, it obliges the parties to make a deal in the future and, on the other hand, establishes negative property consequences if this does not happen.
Often, a representative of a real estate agency acts on the side of the seller or buyer.. This is wrong, since in fact he is not the owner and cannot replace the seller. As well as not being a buyer if he has no intention to really buy an apartment.
As already mentioned, the size is not legally regulated. But in practice, it turned out that under a standard deposit agreement, when buying an apartment, from 3 to 10% of its value is transferred. With the normal development of relations between the participants in the transaction, this amount becomes part of the payment for the object. This condition is stipulated with the wording that at the conclusion of the main contract, the deposit is included in the fee under the main agreement.
Watch helpful video
How to draw up a deposit agreement for the purchase of an apartment?
Such a transaction requires the preparation of the contract itself and a receipt for it.. What requirements must the following documents meet?
- the form of the deposit agreement when buying an apartment must always be in writing. If the contract itself can be printed on paper, then it is definitely better to draw up a receipt by hand. It should also include detailed information;
- notarization is not required for this transaction. But citizens can resort to the services of a notary if they want to increase the degree of reliability of the agreement. For the same purpose, witnesses are sometimes invited;
- in the preamble, the parties referred to as the buyer and seller are named. Not only the full name of each person is indicated, but also the details of passports, addresses of residence, dates of birth;
- it must be clearly stated that the transferred money acts as a deposit to secure the future purchase and sale of the housing stock object, as well as the amount of the transferred amount, the method of payment (in cash, by bank card, other);
- by all means, it is necessary to describe the apartment in as much detail as possible, indicate the signs that individualize it: address, area, floor and number of storeys of the house, cadastral or conditional number. Ideally, all this data should be taken from the certificate of ownership, as well as attach an explication floor plan from the data sheet;
- it is also strictly necessary to indicate the full price of the apartment, so that the buyer does not then try to lower it, and the seller does not try to increase it. cadastral value can also be entered at the discretion of the parties;
- it is necessary to set the period in which the main transaction must be completed;
- it is also worth providing for liability in cases where one of the parties violates the agreements reached.
In general, this is the main thing you should know about making a deposit when buying an apartment and a sample of its preparation.
Template for a deposit agreement when buying an apartment
If earlier the correct sample of the agreement on making a deposit when buying an apartment was available only to lawyers, users of legal reference systems, now such forms can be found on the Internet. No need to search additional sources, you can download the deposit agreement for free when buying an apartment.
Now you know how to make a deposit when buying an apartment, you have received a sample that you can use, you have an idea about the essence and main provisions of the contract. In any case, before signing a document, it is important to carefully read its contents. If you have any doubts or questions, you should postpone the signing and contact a lawyer.