Where to conclude a preliminary contract of sale. Preliminary agreement

28.10.2020 | The documents

Preliminary Sale and Purchase Agreement (PDCP) is an agreement to conclude in the future, on predetermined conditions ( terms, price, payment procedure, etc.). That is MACP- it's just agreement of intent . And if these intentions are not fulfilled within the time period specified by the contract ( for example, they changed their minds about signing the main contract), then the preliminary contract loses its legal force.

Norms of conclusionPreliminary contract of sale are contained in Opens in a new tab."> Article 429 of the Civil Code of the Russian Federation. MACPmust contain all the data and details of the parties, as well as all essential conditions future deal.MACPis not registered anywhere and can be changed by agreement of the parties or unilaterally (if such a condition is reflected in it).

preliminary agreements There are three types of real estate transactions:

Preliminary agreement, according to which some Developers accept money from construction co-investors as payment for a future apartment ( usually, with the simultaneous sale of a company bill for the same amount);
Preliminary agreement between the Seller and the Buyer of the apartment at , at the request of the creditor bank ( formal document for the credit department of the bank);
Preliminary agreement, which some real estate agencies use when making advance payment for buying an apartment as an alternative to the Advance Agreement).

Let's consider them in order.

Preliminary contract from the Developer

Despite having a bill those. unconditional financial obligation of the Developer to the Buyer), such a scheme for the sale of an apartment creates serious risks for the Buyer, but, nevertheless, this type of agreement is still present in the market practice.

Conclusion developerPreliminary contract for the sale of an apartment (PDKP) is not in itself a violation of the law, but its peculiarity is that it only fixes the intentions of the parties , and does not oblige them to carry out the intended. Those. such an agreement does not require developer transfer the apartment to the ownership of the Buyer, and the Buyer, in turn, does not have right to claim an apartment . In the event of an unfinished house, for example, it will be difficult for the Buyer to prove the fact of investment in housing construction, he will only be able to claim a refund security deposit.

In addition, by MACPDeveloper technically has the ability to sell the same apartment several times different people (so-called "double sale").

Question of Conclusion MACP for an apartment that has not yet been built is controversial from the point of view of lawyers, and contains many complex and not fully explained nuances by the legislator. In practice, it is quite easy to avoid liability for violation of the terms. MACP.

analogue MACP at Developer maybe the so-called, which does not change its essence, and has nothing to do with FZ-214.

MACP belongs to the so-called "grey schemes" acquisition of apartments; it allows Developer attract money from the population at the stage of development of project documentation ( even before the start of construction), and gives the Buyer the opportunity to buy an apartment at the lowest price.

Preliminary contract for a mortgage transaction

Such Preliminary agreement is, first of all, in the interests of the creditor bank, because allows him to formally justify ( for own reporting) issue to the Buyer for the purchase of an apartment at a specific address.

At the same time, the bank itself is usually not a party preliminary agreement, which is concluded directly between the Seller and the Buyer, but at the behest and on the terms of the creditor bank.

The purpose of such an agreement for the bank is as follows:

fix the intention of the Buyer to buy this apartment, and the obligation of the Seller to sell it to this particular Buyer ( the contract performs the function of an unsecured obligation, similar to making an advance payment;
formalize and fix the terms of a future transaction for the sale of an apartment, for which the bank will allocate mortgage ;
fix the final price of the apartment, and distribute how much the Buyer himself invests in the purchase, and how much the bank pays extra, in the form of a loan;
determine the method and procedure for settlements between three parties - the Seller, the Buyer and the bank ( in cash or by bank transfer, before registration or after, immediately or in parts);
set the date for the conclusion of the main contract for the sale of an apartment;
fix the condition for the bank to obtain the right of collateral ( mortgages) to the apartment immediately after

Transactions for the acquisition or alienation of residential premises entail great risks. Before buying an apartment, it is necessary to check the documents, resolve the issue of extracting all registered persons or obtaining approval for a mortgage, which takes quite a lot of time. Therefore, the seller and the buyer need guarantees that the counterparty will not refuse to sign the contract in the future. Such a guarantee is a document confirming the preliminary agreement of the terms of sale.

general characteristics

According to Art. 429 of the Civil Code of the Russian Federation, a preliminary agreement for the purchase of an apartment establishes the obligation of a potential buyer and seller to conclude a deal on the alienation of property after some time.

A written intention to buy or sell housing should reflect all agreements reached by counterparties:

characteristics of the object being sold;
real estate price;
payment method;
the procedure for the acceptance and transfer of housing;
real estate encumbrances, if any.

Important. Such an agreement does not give rise to the emergence or termination of rights to the premises. He only guarantees that the living space will be sold on the terms agreed by the contractors.

What is important to know when concluding

The pre-contract for the alienation of real estate serves as a template for the main agreement. By signing it, the participant in the transaction will not be able to simply refuse the conditions prescribed in it in the future.

The parties to the preliminary contract are the persons accepting or alienating the object. In the document, they are referred to as "Seller" and "Buyer", or "Future Seller" and "Future Purchaser".

Enter into an agreement on behalf of the seller pre-sale living space can only be physical or legal entities, with a power of attorney for the right to alienate real estate. The actual purchaser of the property, in whose name it will be subsequently registered, must be indicated as the buyer. Therefore, the contract cannot be signed by a relative or friend instead of the absent owner or recipient of the property, unless there is a notarized permission of the owner.

By prior agreement, the purchaser may transfer funds to the seller as payment for the cost of the apartment. They will be formatted as:

deposit;
transaction advance.

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The deposit involves making a certain amount by the parties as an advance payment for the transaction. If the buyer subsequently refuses to conclude a contract for the sale of housing through no fault of the seller, the amount of the deposit will not be returned to him. If the agreement on the purchase of the object is terminated by the owner of the property, the potential purchaser is paid double the amount paid by him Money.

If one of the parties refuses to execute the contract, the advance payment is returned to the purchaser, regardless of the reasons for which the main agreement was not signed.

Note. When transferring the amount of the deposit or advance, the buyer must draw up documents confirming the actual receipt of money by the seller (receipt, bank statement).

The amount of the advance payment is set at the request of the parties. However, the buyer should not pay large sums towards the future agreement. During the preparation for the main transaction, various adverse events may occur (the bank's refusal to issue a mortgage, the death of one of the parties or an accident), as a result of which it will become impossible to buy an apartment. And the counterparties refuse to return the money.

Advice. It is advisable to limit the amount of the deposit or advance to 5-10% of the value of the property determined by the obligations.

Transaction form

The preliminary contract is concluded in the form in which the agreement on the sale of the apartment will be drawn up. If the parties do not insist on the notarization of the contract, then in order to give legal force to their agreement, it is better to fix it in writing.

reference Information. There is no need to register the agreement in advance with the Rosreestr authorities.

A preliminary contract for the sale of an apartment should not be expressed only orally, since such a transaction is void.

The legislation of the Russian Federation does not establish strict requirements for the structure of a preliminary agreement on the purchase and sale of residential premises. Based general provisions civil law, the following mandatory elements of the document can be distinguished:

Preamble with full name parties and details of passports. Information about the owner must match the information specified in the documents for the apartment. If two or more participants speak from one of the parties, full information is indicated about each of them.
The main part - important information about the subject of the contract is prescribed, namely: the address of the premises; what floor is it on? area and number of rooms of the object; cadastral registration number; grounds for the emergence of rights to property from the seller; condition of the dwelling; existing encumbrances (for example, registration at the place of residence, pledge, etc.); transaction price; calculation procedure.
The final part, in which it is necessary to register:

maximum terms for registration of the actual sale and purchase;
obligations of the parties to prepare the main contract (in particular, which of the participants will bear the costs of the transaction, collect the necessary certificates, etc.);
details of the parties and affix signatures.

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Attention. If a mistake is made in the preparation of the document in the description of the apartment, it will not have legal force.

Validity

The Civil Code of the Russian Federation does not establish maximum and minimum periods for the validity of a preliminary sale and purchase agreement, therefore this issue is resolved by the participants independently.

There are several options for determining the timing of the "future" contract for the alienation of real estate:

by specifying the period of time during which the main document must be registered;
affixing exact date submission of a signed contract to the Rosreestr authorities.

Formulation example. "The agreement of intent comes into force at the moment of its signing by all participants and is valid for 3 (three) months."

If the text of the contract does not indicate how long the persons participating in it must register the transfer of rights to property, the deadline for concluding a transaction should be 12 months from the date of signing the document.

Buying an apartment with a mortgage

To date, a fairly common way to purchase a dwelling is to purchase it with a mortgage loan from Sberbank. In this case, the amount of money is provided to the buyer on a loan secured by the acquired property.

Before buying housing in this way, you must obtain:

the consent of the bank to provide the buyer with a housing loan;
approval for the purchase of a specific, already selected by the buyer, object.

During the execution of these documents, the seller may find another person who wants to buy a home or change the terms of the contract (for example, increase the price, revise the agreement on the costs of registering a transfer of ownership). Therefore, when obtaining a mortgage at Sberbank, it is advisable to draw up a preliminary contract for the sale of an apartment.

In the text of the conditions, in addition to the provisions discussed above, it is necessary to reflect:

the fact of acquiring property on security;
name and details of Sberbank;
date of transfer of money by the bank to the seller.

The term for which an agreement is concluded to reach a preliminary agreement on the purchase of housing on a mortgage will directly depend on the period of consideration by the bank of the buyer's application. In fact, it takes about 2 months from the moment the client sends an application for a mortgage until it is approved.

Citizen, passport (series, number, issued), residing at the address, hereinafter referred to as " Salesman", on the one hand, and a citizen, passport (series, number, issued) residing at the address, hereinafter referred to as " Customer”, on the other hand, hereinafter referred to as “ Parties”, have concluded this agreement, hereinafter referred to as the “Agreement”, as follows:

The Parties undertake, on time and under the terms of the Agreement, to conclude a sale and purchase agreement (hereinafter referred to as the “Main Agreement”) of an apartment owned by the Seller by right of ownership on the basis of. The above apartment consists of a living room(s), has a total area of sq.m., a total area excluding loggias, balconies, other summer premises sq.m., including sq.m. living area.
The main contract must be drawn up and signed by the Parties in a simple written form within a period of up to "" a year.
The buyer confirms that all the essential characteristics of the apartment, including its location, spatial orientation, view from the windows, dimensions, layout, condition, engineering and technical equipment, as well as the condition of the adjacent territory and common areas of the house, fully satisfy him.
The following persons are registered in the apartment at the time of conclusion of the Agreement: who, in accordance with Article 292 of the Civil Code of the Russian Federation, retain the right to use the apartment until they are deregistered. The Seller undertakes to ensure the deregistration of the above persons no later than days after the state registration of the Main Agreement.
The apartment must be released by the Seller from the property not included in its price no later than days after the state registration of the Main Agreement and transferred to the Buyer under the Transfer and Acceptance Certificate no later than days from the date of issuance of the State Registration Certificate to the Buyer.
The price of the apartment is Rs. When signing this Agreement, the Buyer transferred to the Seller funds in the amount of: rubles. The specified amount is an advance payment for the purchased apartment and is taken into account by the Parties in mutual settlements on the day of signing the Main Agreement.
The payment of all expenses for the collection of documents necessary for the state registration of the Main Agreement and the transfer of rights under it, as well as the costs of preparing the draft Main Agreement, is carried out by the Seller. Payment of expenses related to the state registration of the Main Agreement and the transfer of rights under it is made jointly and severally by the Buyer and the Seller. In the event of additional expenses arising at the initiative of one of the Parties, they are paid by the initiating Party.
In the event that the Buyer fails to fulfill its obligations under this Agreement or refuses to sign the Main Agreement (including due to lack of funds for full payment), the latter shall pay the Seller a fine in the amount equivalent to % of the advance paid. The fact of the occurrence of these circumstances must be confirmed by the Act drawn up by the Seller and the Buyer. On the day of drawing up the said Act, the Agreement is considered terminated due to the impossibility of execution.
The Seller is obliged to return to the Buyer all the funds received from the Buyer (advance payment) in full in case of non-fulfillment by the Seller of obligations under the Agreement and termination of the Agreement if the Buyer discovers circumstances preventing the conclusion of the Main Agreement on the terms agreed by the parties: .
The Parties undertake to inform each other of the occurrence of circumstances that may affect the performance of the Agreement, including a change in civil status, loss or change in the details of identity documents, a change in the permanent place of residence of the Parties, as well as the impossibility of receiving notifications due to the alleged absence and provide information on another possibility of notifying the absent Party.
The Agreement is concluded for a period up to and including the date specified in clause 2.1 of the Agreement.
All changes and additions to the Agreement are made by agreement of the Parties in writing, in the form of an Additional Agreement to the Agreement, which, if drawn up, is attached to the Agreement and becomes its integral part.

In some cases, when buying real estate, a preliminary contract is drawn up, which postpones the purchase and sale transaction in time. There are several important points that you should pay attention to when designing it: you will learn about it right now.

When making a purchase of a certain property object (an apartment, a land plot, a car, etc.), the parties may, but are not required to, conclude a so-called preliminary sale and purchase agreement. The legality of such an action, as well as the fact of the existence of such a document, is reflected in Civil Code (Article 429).

The main purpose is that both parties assume certain obligations before the transaction takes place:

the seller assumes the obligation to sell the object to this particular buyer;
the buyer undertakes to buy the object from this seller.

The parties confirm the intention to conclude the main contract in the preliminary, when the purchase and sale transaction takes place. At the same time, the parties mean that the main contract will be signed on the same terms.

The purpose of the preliminary agreement is that each party to the transaction can confirm its intentions and at the same time take a written obligation of the other party about its intentions. Most often, an agreement on the further acquisition of an apartment is fixed. Typically, such a document is required in the following cases:

The seller and the buyer have agreed on the transaction, but the seller does not have some documents for the apartment or they are issued incorrectly.
The buyer does not have enough funds for a one-time purchase, but he immediately transfers part of the amount and undertakes to pay the rest in full within a certain period.
When buying an apartment on a mortgage, concluding a preliminary agreement is a common practice, since the procedure is complicated by the need to obtain permission from a bank that will take housing as collateral against the provision of credit funds.

The contract differs from the main one in that it does not need to be registered either with Rosreestr or certified by a notary. In this sense, the document carries certain risks if the parties do not provide documents proving that the apartment is not encumbered (pledge, arrest, third party claims, etc.).

A pre-signed contract carries certain guarantees, as well as the risks of the parties - all of which are discussed in detail in the next section.

Preliminary contract: guarantees

The preliminary agreement contains 2 important guarantees that protect the interests of both parties:

To the buyer, this document guarantees that the apartment will be sold to him and exactly at the price that was indicated.
The contract gives the seller a guarantee that it is this buyer who will purchase an apartment from him no later than the period specified.

If someone evades their obligations, any party can apply to the court so that the main contract is executed forcibly, and the transaction takes place. Application can be submitted within 6 calendar months from the day when, under the preliminary agreement, it is required to conclude the main one (meaning the deadline).

The expert's commentary on the features of the preliminary contract is presented in the video.

Preliminary contract: risks

The main risks are associated with the fact that the parties may evade their obligations. Moreover, if they did not express claims within six months, then the preliminary sale and purchase agreement ceases to operate automatically.

By itself, this document does not carry risks in the sense that the right of ownership from the seller to the buyer on the basis of its signing does not occur. If one party requests to force the other party to complete the transaction, the defendant may file a counterclaim to invalidate the contract.

NOTE. If a preliminary agreement was concluded when buying a new building (with a developer company), then in case of default, the plaintiff may go to court to force the defendant to sign an agreement on participation in shared construction.

Otherwise, the preliminary agreement is associated with risks that generally accompany transactions in the real estate market:

In some cases, a preliminary agreement may be recognized by the court as not concluded. This is possible in 2 cases:

the contract is drawn up with obvious violations (not all the details of the apartment are indicated, there are factual errors);
The apartment does not exist or is still under construction.

The risk associated with the fact that the apartment can be sold repeatedly. This situation arises in the case of a fraudulent scheme carried out by the developer: for example, he can conclude several identical contracts for the sale of the same apartment.
The risk associated with the loss of funds spent on the purchase of an apartment. This also applies to cases of acquiring an apartment directly in a house under construction. It is important to understand that the invested funds (under a trust management agreement) are not always returned upon termination of construction - often the company is declared bankrupt, and the injured party can only hope for partial compensation for its loss.

Thus, after signing the preliminary contract, the parties are obliged to sign the main contract on exactly the same conditions (changes are possible only by mutual agreement).

In the case of private citizens (when buying housing on the secondary market), the main risks are related precisely to the fact that the parties will not fulfill their obligations. If an apartment is purchased in a new building, the danger increases dramatically - it all depends on the honesty of the developer.

Preliminary contract: sample 2017

The requirements for drawing up a preliminary purchase and sale agreement have not changed this year. The standard form is easy to download and print.

When filling out, it is important to take into account that all essential conditions are reflected in the document - it is better to check that all the data match those indicated in the relevant documents (passport of the owner of the apartment, certificate of ownership). Special attention given to the following points:

Contract price, i.e. at what price the seller undertakes to sell the apartment within the agreed time.
The preliminary contract must indicate all persons who live with the seller on this moment. Their full name and passport details are indicated.
If the owner lives elsewhere, it is better to indicate both addresses: both the actual one and the one written in the passport.
The contract must separately describe the fact that the seller guarantees: the apartment is not pledged, under arrest, other persons do not claim it.
The term of the preliminary contract is an essential condition for its validity: after this date, the contract ceases to be valid.
The contract necessarily prescribes the procedure for paying the cost of housing: for example, first the buyer pays 10% of the total amount, and then the remaining 90%. The fact of payment is additionally confirmed by the deposit agreement (at the request of Article 380 of the Civil Code). The same document is called a receipt - it is drawn up in any form and is also signed by both parties.
The liability for non-fulfillment of obligations is also described: pre-trial settlement is meant. For example, the party that evaded the transaction pays the other party a deposit in double the amount.

Without specifying any of these essential conditions, it is practically impossible to recognize a preliminary contract as legally valid, which is why it will not be possible to use it as one of the evidence in court proceedings.

A sample contract is provided below.

It should also be noted that the drafting of such an agreement does not provide for the transfer of housing to the property of the buyer. Accordingly, there is no need:

draw up a deed of transfer;
provide extracts from the personal account, which prove the absence of arrears in utility bills;
order an extract from the USRN to prove that the apartment is not encumbered;
attach the technical passport of the apartment to the preliminary contract.

After the parties conclude a sale and purchase transaction and sign the main contract, the preliminary one is considered invalid. No special documents are drawn up on this fact - the parties can simply destroy this document.

Real estate transactions are often preceded by a preliminary sale and purchase agreement, the terms and conditions of which are specified in the Civil Code. It is a guarantee that the buyer and seller will enter into a basic agreement in the future, according to which the buyer will acquire the property, and the seller will transfer ownership of it.

Peculiarities

When concluding this type of agreement, the buyer does not yet become the full owner of real estate, but only receives the right to formalize the main transaction for the sale of this property in the future.

In what cases does it make sense to draw up a preliminary contract for the sale of real estate ()? The parties resort to the conclusion of such an agreement when:

the buyer does not yet have a certain amount of money to buy a real estate object and he needs to wait for the occurrence of one or another event to receive money: entry into inheritance rights, approval of a mortgage;
the seller needs time to collect / issue Required documents;
the owner of the property is located in another city/country: it is necessary to wait for his presence or issue a power of attorney to complete the transaction by a third party on behalf of the owner.

Other circumstances are also possible, due to which the parties interested in the alienation of real estate are forced to conclude a preliminary contract of sale.

Thus, a preliminary contract for the sale of a house and a land plot, an apartment or other residential premises serves as a guarantee that the buyer will acquire the seller's property in the future. Moreover, the main contract will be concluded on the conditions that are specified in the preliminary one.

Requirements for this type of contract

it is in writing;
notarization is not mandatory, but the parties can agree on the certification of the document in a notary's office;
in the future, the parties undertake to conclude the main contract of sale on the terms specified in the preliminary agreement;
essential conditions that must be reflected in the document and which will subsequently be included in the main contract too: the subject of the transaction (address of the property, its purpose, total / residential area, number of floors, number of rooms and other characteristics), the cost of the apartment / house / land, information about the buyer and the seller (passport details, address of the actual place of residence), if the transaction is carried out through a representative: details of the power of attorney and information about the authorized person;
a preliminary contract for the sale of a house/apartment/land plot implies an indication of the terms in accordance with which the main sale and purchase transaction will be concluded. If specific terms are not specified, then by default it is considered that the main agreement must be signed by the parties no later than one year from the date of conclusion of the preliminary agreement.

Responsibility of the parties

According to the provisions of the Civil Code, if one party evades the fulfillment of the main obligation: the conclusion of the main contract, the second party has the right to file a lawsuit in court demanding to force the evader to conclude a transaction and reimburse all expenses incurred due to this evasion.

If both parties ignore the transaction, the preliminary will be considered terminated. The obligations stipulated by the preliminary agreement also terminate if the validity period expires, in which it was necessary to carry out the main transaction of purchase and sale of the immovable object.

When drawing up a preliminary contract for the sale of a land plot / house / apartment / residential premises (), you can also provide additional terms relating to the fulfillment of the obligations of the parties. Such conditions include the introduction by the buyer of an advance or a deposit.

Advance payment is a certain amount of money that is transferred to the seller and is taken into account in the future payment for the object being sold during the execution of the main sale and purchase transaction. If the advance was transferred, but the obligations did not arise or were not fulfilled, the seller is obliged to return all the money to the buyer in full. Thus, the advance is not a reliable guarantee of the fulfillment of obligations.

It is quite another matter to make a deposit. In case of refusal to fulfill obligations under the transaction, the deposit remains with the seller in the original amount, and the buyer loses his money. If the seller refuses to fulfill his obligations, the deposit is returned to the buyer twice. Thus, the deposit acts as a guarantor of the fulfillment of obligations under the contract, and is a compensation for their non-fulfillment.

In practice, the use of a deposit creates great risks for the buyer: although the seller writes a receipt that he will return the money if his obligations are not fulfilled, there are times when the fraudster simply evaporates with the money received. To avoid such an outcome of events, it makes sense to contact a legal or real estate office and leave the entire amount of the deposit for storage to a third party. Of course, you need to contact only reliable large companies with a good reputation. Employees of the organization are also required to write a receipt stating that they received the money and undertake to ensure its safety.

Outcome

A preliminary agreement is a guarantee that the parties in the future will conclude the main contract of sale on the terms agreed in advance.
To ensure the fulfillment of the obligations of the parties, you can use a deposit or an advance payment.
The described contract does not require state registration.