Who should draw up a preliminary purchase and sale agreement? Preliminary purchase and sale agreement

A preliminary agreement for the sale of an apartment is an official document that confirms the desire of the seller and buyer to sign the main agreement on the specified specific conditions. All of them are prescribed in the text of this agreement, drawn up in the form of the main one. It's important to keep in mind that Failure to comply with these requirements will result in its invalidity.

The document must include information about the residential property, the agreed date for signing the main agreement, and all essential terms of the transaction. The legal basis for concluding this type of sales contract is prescribed in Art. 429 of the Civil Code of the Russian Federation.

Article 429 of the Civil Code of the Russian Federation. Preliminary agreement

Under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement.
The preliminary agreement is concluded in the form established for the main agreement, and if the form of the main agreement is not established, then writing. Failure to comply with the rules on the form of the preliminary agreement entails its nullity.
The preliminary agreement must contain conditions allowing to establish the subject matter, as well as other essential terms of the main agreement.
The preliminary agreement specifies the period within which the parties undertake to conclude the main agreement. If such a period is not specified in the preliminary agreement, the main agreement must be concluded within a year from the date of conclusion of the preliminary agreement.
In cases where the party that entered into the preliminary agreement avoids concluding the main agreement, the provisions provided for in paragraph 4 of Article 445 of this Code are applied.
The obligations stipulated by the preliminary agreement are terminated if, before the end of the period within which the parties must conclude the main agreement, it is not concluded or one of the parties does not send the other party an offer to conclude this agreement.

It is important to understand that when it is drawn up and approved by each of the parties, the buyer does not become the owner of the property specified in the document, but only acquires the opportunity sign a future contract on the terms specified in the current one.

Very often, after drawing up a preliminary purchase and sale agreement, the buyer gives the seller a certain amount Money. However, this move is incorrect - payment under this document should not occur at all. In this case, the text can indicate how much of the advance payment the seller receives upon concluding the main agreement.

What are the dangers of entering into a contract?

Sometimes, when concluding a preliminary agreement, the parties to the transaction consider it “approximate” or non-binding. However, according to the concepts of the Civil Code, this type of agreement is actually deferred until the occurrence of a certain event, but at the same time it is obligatory for the parties to fulfill its terms.

Therefore, when signing such a document it is necessary to soberly assess its advantages and disadvantages.

Changes in prices between the signing of the preliminary and main contracts. Due to the fact that this document accurately states the final cost of the purchased apartment, while waiting for the signing of the main agreement, both a jump and a collapse in real estate prices may occur.

In such conditions, it is likely that a situation will arise when either the seller will be dissatisfied with the old price (for example, in the new conditions this apartment would cost more, or the amount received will not be enough to buy a new home), or the buyer (for example, prices have fallen sharply, and in the new conditions the apartment could be bought cheaper).

Liability in court. If one of the parties to the agreement changes its mind about signing the main agreement, then the other party can force it to do so through the court. Such the possibility is fixed in clause 4 of Art. 445 Civil Code. In this case, the injured party has every right to demand compensation from the other for all costs incurred.

However, here you need to keep in mind - the preliminary agreement becomes invalid if the main one is not signed before the expiration of the specified period, or if any of the participants has not communicated in writing about the intention to sign it, as well as the date, place and time of the event.

Deposit. Typically, when concluding this agreement, the buyer pays the seller a deposit as a guarantee of fulfillment of the obligations assumed.

The concept of a deposit implies that if the buyer does not want to sign the main contract in the future, then the money remains with the seller. And if the seller does not sign the document, he is obliged to pay the buyer double the amount of the deposit.

On the other hand, more and more often in court proceedings, clauses of the agreement containing data on the deposit made are recognized as invalid. Therefore, it is best in this case to draw up a preliminary agreement, and along with it, a deposit agreement.

Risk reduction

The preliminary agreement is signed by the parties in order to reduce the risk of further failure to complete the transaction. There are several reasons why it is advisable to formalize it.

Buyer does not yet have the required amount of money- perhaps he is waiting for funds to arrive, loan approval, etc.

Salesman did not complete the documents, which must be presented when selling a home. Therefore, he needs additional time to do this.

Owner in this moment is absent from the city and needs time to return or to issue a power of attorney to sell the property.

It is necessary to take some actions before the transaction, for example, deregister or obtain permission from the guardianship authorities.

Any of the parties to the contract enters into inheritance (the procedure usually takes up to six months), and they want to consolidate their desire to complete the transaction. However, it is better not to sign such a document until the notary has issued a certificate of inheritance so that the document comes into legal force.

Purchasing housing using a subsidy or cash certificate. Sometimes money is received according to such documents only after the transaction has passed state registration, which can take 2-3 weeks.

There may also be other reasons that could prompt the parties to enter into a preliminary agreement. Including conditions that are significant for any party in the document reduces the risk of further disruption of the planned transaction.

The preliminary agreement must contain the following information:

complete data about the seller and buyer of the apartment;
address and detailed description purchased housing;
specific date of, before which the parties need to sign the main agreement for the transaction;
apartment purchase price, as well as the timing and methods of transferring funds by the buyer;
an indication of the type of property in which this housing is located, as well as on the basis of which documents this right arose;
information about the people registered in the apartment, as well as about who can continue to use the apartment until the main agreement is signed;
any actions that need to be performed in order to complete a transaction. The exact time frame allocated for their completion is indicated.

Responsibility for the fact that the obligations of the preliminary contract are not fulfilled, or the main one is never signed.

How to compose?

It is very important to competently draw up a preliminary purchase and sale agreement, because this will help avoid risks and ultimately lead to the conclusion of a transaction on the terms specified in the document. You can download a sample preliminary agreement for the purchase and sale of an apartment from the Internet, but this approach is not always effective.

From each of the parties, those persons who will also sign the main one must participate in the signing of this agreement. This means that if the property is jointly owned by several people, all of them must also be specified in this agreement. The same applies to buyers if the purchase is made by several people.

It is very important that all parties to the transaction be present at this stage. If, for example, one of the owners is away, and the rest assure that “he is not against it,” then in the end it may turn out that he does not accept obligations to sell, and therefore will not participate in the final transaction, which leads to its breakdown.

The contract must most accurately and completely describe the housing that is the subject of its conclusion. You must fully indicate the address of the apartment, floor, exact area (common and residential), number and location of rooms. It is allowed to attach to this document a technical plan of the apartment from the BTI.

The seller may ask to include information here that the apartment has been inspected by the buyer and he has no complaints about it.

It is important to indicate exactly the amount for which the transaction will be carried out. The fact is that it is not subject to change in the future, even in the event of significant fluctuations in market prices for real estate. Also here you can clearly state how the buyer will pay - in full or in parts, with or without an advance. When depositing money in installments, it is worth indicating the dates when each amount must be paid. In addition, the method of payment for the purchased apartment is recorded - cash, bank transfer, payment to a plastic card, etc.

One of the most important points of the document is the indication of the period during which the main agreement must be signed. It should be borne in mind that if not specified exact date, then the main contract must be concluded within one year from the date of execution of the preliminary one.

Despite the illegality of transferring an advance after signing this agreement, its participants still often do this. If the transfer has occurred, then the document can specifically specify further actions with the transferred money - when it is returned to the buyer and when it remains with the seller. You can also clearly indicate that this amount goes towards paying off the cost of the apartment.

Another important point that should be reflected in the contract is the result of checking the title documents for housing. It is necessary to indicate the details of the registration certificate, the absence of encumbrances on the apartment - mortgage, lease, arrest, as well as recording the fact that the object is not subject to alienation.

Common errors

Sometimes, when purchasing an apartment in a building that is still under construction, the developer wants to sign a preliminary purchase and sale agreement with the buyer. However, this is incorrect, because the object of the agreement is housing that was not built at the time of signing.

It is very important to indicate all significant conditions when drawing up. The absence of any clauses may subsequently lead to disputes between the parties or even to the invalidation of the concluded agreement. A document can be considered void if the personal data of the parties, the characteristics of the apartment, and the purchase price are not fully or incorrectly indicated.

Ambiguous and general blurry phrases. It is necessary to clearly state the rights and obligations of the parties, what exact actions they must take to conclude the main agreement, and by what date this must be done.

Preliminary agreement - This is a document that confirms the parties’ desire to purchase and sell an apartment.

It is binding, and if one of the parties evades, the other can sue on its basis.

However, the document does not record the transfer of ownership and is not subject to state registration. It must contain the details of the parties, a description of the apartment or share and the amount at which it is being sold.

Real estate transactions are very often preceded by a preliminary purchase and sale agreement, the terms and conditions of which are specified in the Civil Code. It guarantees that the buyer and seller will enter into a basic agreement in the future, according to which the buyer will purchase 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 the real estate, but only receives the right in the future to formalize the main purchase and sale transaction for this property.

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

the buyer does not yet have a certain amount of money to purchase a real estate property 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/execute the necessary documents;
the owner of the property is located in another city/country: you must wait for his presence or issue a power of attorney to complete the transaction by a third party on behalf of the owner.

There may be other circumstances due to which the parties interested in the alienation of real estate are forced to enter into a preliminary purchase and sale agreement.

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

Requirements for this type of contract

it is in writing;
notarization is not mandatory, but the parties can agree to have the document certified by a notary office;
in the future, the parties undertake to conclude the main purchase and sale agreement 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/living area, number of floors, number of rooms and other characteristics), cost of the apartment/house/plot, information about the buyer and seller (passport details, address actual place residence), if the transaction is carried out through a representative: details of the power of attorney and information about the authorized representative;
A preliminary contract for the purchase and sale of a house/apartment/land involves specifying the terms in accordance with which the main purchase and sale transaction will be concluded. If specific deadlines 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 main obligation: concluding the main contract, the second party has the right to file a lawsuit to force the evader to enter into a deal and reimburse all expenses incurred due to this evasion.

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

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

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

Making a deposit is a completely different matter. If the buyer refuses 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 in double amount. Thus, the deposit acts both as a guarantor of the fulfillment of obligations under the contract and as compensation for their non-fulfillment.

In practice, using a deposit creates great risks for the buyer: although the seller writes a receipt stating that he will return the money if his obligations are not fulfilled, there are cases when the fraudster simply evaporates with the money received. To avoid such an outcome, it makes sense to contact a legal or real estate office and leave the entire amount of the deposit for safekeeping to a third party. Of course, you should only contact 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.

Bottom line

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

A preliminary agreement of intent, drawn up before, serves additional insurance for each participant in the transaction.

Probably, many citizens who have had to deal with transactions in the real estate market have dealt with preliminary agreements. Such documents serve as a good tool for imposing obligations on the parties planning conclusion of a transaction within a specified period.

Many probably expressed doubts about the relevance of such interim agreements. Why should the procedure for the purchase and sale of real estate be postponed and a preliminary agreement be drawn up if all participants have already agreed on the main terms of the deal?

Sometimes time is needed, and during this time one of the parties may refuse. In these cases, a preliminary agreement is very convenient, which will fix intention to conclude a deal. It is not for nothing that such a document is often called an “Agreement of Intent.”

This transaction is concluded between the interested parties after reaching the desired agreements, if each participant has further intentions to complete the purchase and sale procedure, taking into account all the agreed conditions.

The reasons why a document cannot be signed immediately are varied. For example, the buyer does not have the agreed amount at his disposal, and he can provide it only after some time, or the seller needs to prepare documents for the property, etc.

A preliminary agreement can be considered a document that specifies the mutual obligations of each party. Thanks to such an agreement, all participants can receive full guarantees of the planned transaction, since they undertake to bear personal responsibility for its failure.

Therefore, a preliminary agreement is signed in order to protect the interests of the parties, as well as insurance against dishonest behavior of the parties to the transaction.

In what cases is an agreement concluded?

What is usually signed in such agreements? Since everything that is stated orally cannot have legal force in the modern legal system, it is recommended that every important point related to the upcoming transaction be indicated in writing in the purchase and sale agreement.

Requires a separate description all conditions, previously agreed upon between the parties to the transaction.

If we omit a detailed consideration of the full structure of the document, we can say that the preliminary agreement should always clearly indicate absolutely everything existing conditions of the concluded transaction. In case of non-compliance or complete absence of preliminary agreements, the transaction will not be considered concluded and cannot have any legal force.

The preliminary agreement must mention at least 3 main conditions:

The first condition is subject of the agreement. Here is a detailed description of the entire property, for example, an apartment listed on. To avoid all sorts of conversations in the future that the sale of another apartment or house was agreed upon, the document indicates the exact address, as well as the main features of the living space.
The second condition is cost of the object, under which the main agreement is to be concluded. This condition should be clear to everyone. Its compliance is important for both the seller and the buyer, since, if there is no agreed price in the document, the owner, for example, can declare that he is not going to refuse the transaction, but at the same time demand for the property an amount exceeding the previously agreed price in repeatedly.
Third condition - deadline for concluding the main agreement. Taking into account changes in the organization of the state's economy, it is recommended not to indicate too long a period of time in the preliminary agreement. Today, new properties are constantly being appointed to the real estate market. These changes may benefit owners or buyers. Therefore, preliminary agreements are recommended to be concluded for a minimum period.

If at the stage of concluding a preliminary agreement the owner and the buyer discuss all the details of the transaction, then in the future the coordination and execution of the basic documentation regarding the purchase and sale of living space will not present any difficulties at all. The procedure is extremely simple: All conditions are transferred from the text of the preliminary agreement to the main document.

Terms of termination

The possibility of preliminary agreement in some situations can be very popular. In many cases, real estate agencies are guided only by their own interests and do not always care about the safety of people who are willing to pay money and expect to receive a normal property in return.

If the terms of the preliminary agreement did not imply payment of part of the agreed amount of money, such a transaction can be terminated by mutual agreement on each side by signing required document. If one of the participants does not express a desire to terminate the agreement, this can be done with the involvement of.

Money spent on related expenses is not refundable upon termination of the agreement, unless agreed upon in advance. Such transactions are always concluded on paper and are subject to subsequent certification by a notary when the preliminary agreement is directly considered.

In case of termination due to failure to comply with the agreed terms, the transaction participant who initiated the termination has the right collect a penalty and has the opportunity to force the second participant to enter into the main agreement, but with the involvement of the courts.

If a situation arises where the preliminary agreement is terminated due to the participants’ failure to comply with the specified deadlines, the procedure is carried out according to the relevant conditions due to the failure to comply with the obligations assigned to the participants under the agreement.

Therefore, before making a preliminary agreement, you must ensure the following:

The form indicates the acceptable sequence of actions for unilateral termination;
The document also period must be specified during which the procedure for concluding the main agreement is planned;
The agreement details sequence of actions when completing the main transaction;
Provides conditions for returning funds paid to a potential buyer as an advance.

If all of the above conditions are met, the preliminary agreement can be easily terminated with minimal risks and losses for each party. Naturally, it is better that the procedure for concluding and canceling such transactions is carried out only with the assistance of qualified lawyers.

Important: The preliminary agreement is an ordinary document and does not imply the payment of any monetary contributions, but only obliges the parties to the transaction to carry out preparatory activities within the agreed time frame in order to be able to conclude the main transaction in the near future.

The law does not prevent the transfer of funds under such an agreement. Since other existing options for paying a deposit upon agreement are not considered normal, it is necessary to indicate in preliminary agreements that, according to the agreement concluded, a sum of money will be transferred confirming the full seriousness of the intentions of each of the parties to the transaction, as well as the availability penalties, which will be imposed on one of the parties in the event of failure of the agreement.

It is necessary to clearly distinguish between advance and. The main difference is that in the event of unilateral termination of the transaction, the seller has the right to keep the deposit, but the advance is subject to return.

Sometimes concluding a main transaction may be associated with additional risks, in the presence of which it is undesirable to formalize a preliminary agreement:

Several preliminary agreements may be drawn up for one property;
Payment for an unfinished residential property in;
Probability of existence unfavorable conditions to draw up a preliminary agreement;
Sometimes it is possible to sell one property to several buyers at the same time. A seller may enter into agreements with several potential buyers, receive from them, and simply disappear.
Sometimes during the process of completing a transaction it turns out that a lien has been placed on the property, the existence of which the seller may not be aware of. This will be clarified by the notary himself when completing the main transaction.
If minor children are registered in an apartment or house, the property cannot be sold without the prior consent of the guardians. When concluding preliminary agreements, information about the children registered in the house is not provided, so problems may arise when drawing up the main agreement.

Sample contract for 2016

A sample preliminary agreement for 2015 contains a full list of all possible conditions, as well as responsibilities that must be specified later when completing the main transaction. This is one of the most serious documents that can be signed before the purchase and sale of residential real estate.

When concluding a contract correctly, comprehensive information must be provided about each participant in the transaction. Described with maximum accuracy subject of the transaction. It is also necessary to specify period, during which the main contract must be concluded.

Learn more about why you need to draw up a preliminary agreement in the video.

What is the meaning of a preliminary agreement and is it really necessary? The video consultation will clarify a number of points regarding the answers to the question: “Why do you need to draw up such an agreement?”

The conclusion and signing of a preliminary purchase and sale agreement is a very important part of the future main transaction. Based on it, both parties undertake to each other in the future to sign the main purchase and sale agreement.

The main rule at the time of drawing up the contract is to consider the most important issues. This document should contain a clear plan for further actions. In addition, all possible risks must be provided for.

Rules for drawing up a contract

This agreement is concluded in ordinary written form.

A document is official only when agreements have been reached between the parties to the transaction, which, in turn, are spelled out as clearly as possible in the document.

Responsibility of the parties when concluding and signing such a document

The main stated points of responsibility of both parties are:

If the main agreement is not signed and concluded before the specified time due to the fault of the seller, then he will be obliged to give the buyer a deposit. The amount of the deposit must be paid in double amount;
If the signing of the main contract did not take place due to the fault of the buyer, then the deposit that he has already paid to the seller is not returned.

Essential terms of the agreement

At the time of concluding a preliminary purchase and sale agreement, all possible points must be clearly stated by both parties, as well as the conditions for concluding the main transaction. This document includes:

Introductory part

First of all, you should write down the name of the document being compiled. If for some reason it is missing, then it will be necessary to carefully study the main part of this document.

It is equally important to indicate the date the document was signed. This fact indicates that the agreement has entered into force, with all that it implies.

If you look at this issue from a legal point of view, then this fact is very important at the time of concluding and signing an agreement. Indicating the place where the document was signed is of great importance.

A correctly drawn up contract and all the points that are spelled out in it are the key to future success. In the process of drawing up such a document, all data of both the seller and the buyer must be indicated, namely their contact details, full names and their positions.

Subject of a future transaction

The main subject of the contract is the particularly significant terms of the transaction. This part of the document strictly stipulates the essence of the legal relationship into which both parties to the transaction enter.

Here, all the rights of both parties are clearly stated, as well as their obligations to each other, the amount to be paid for the purchased goods, how and at what time the payments will be made, a strict description of all deadlines and other nuances.

Additional terms of the deal

This point is completely optional when drawing up a preliminary document, but, one way or another, it plays a significant role in the implementation by both parties own rights and responsibilities.

Other terms of the deal

This clause of the contract may contain all sorts of technical issues. Specific recommendations on the issue of drawing up an agreement depend entirely on the type of transaction.

Today, you can easily draw up such an agreement yourself, but if it concerns a very large and serious transaction, then it is best to resort to the services of qualified specialists.

Responsibility of both parties when concluding a preliminary agreement

An equally important point in drawing up such a document is the responsibility of both parties to the transaction.

This question includes:

If in any way the buyer violated the prescribed payment terms, the seller has every right to demand payment of a penalty. Its amount must also be specified in the pre-concluded document.
If the terms of delivery of the goods were violated by the seller for any reason, then the buyer has every right to demand payment of a penalty. The percentage of this very penalty must also be strictly prescribed. From the moment the seller receives the buyer’s written demand, within a few calendar days he undertakes to pay the entire amount requested. If the seller does not agree with the buyer’s requirements, then he needs to draw up and send a reasoned response.
Full payment of the penalty does not at all relieve both parties to the contract from its execution, as well as compensation for all losses.

Settlement of disputes

This fact is important at the time of signing the preliminary purchase and sale agreement and it must be stated in the document.

This item includes:

Possible controversial situations that arise in connection with the execution of this agreement are resolved by the buyer and seller themselves. It is important to comply with the entire claim procedure.
All existing claims must be submitted exclusively in writing. It is important to attach all documentation confirming all the existing requirements set out in it. It is important that such a claim be signed and sealed by an authorized legal entity.
This claim should be reviewed within a few days from the moment it was handed over and signed. The sender himself must be notified of the deadlines.
If no response is received or the sender receives a refusal to satisfy the claim, then all disputes must be considered by the Arbitration Court.

Validity period of the preliminary agreement

According to clause 4 of Article 429 of the Civil Code of the Russian Federation, at the time of signing the preliminary agreement, one of mandatory items is the period in which both parties to the transaction undertake to each other to sign the final agreement.

In the absence of this clause, the main agreement can be drawn up within 1 year from the time the preliminary agreement was drawn up.

The conclusion and signing of the main purchase and sale agreement is directly related to the moment when the seller received a certificate of ownership, and also received an advance payment in full from the buyer.

Based on this, we can say that the terms are set by both parties to the transaction in a manner convenient for them.

In addition, it is important that in case of urgent need, mutual consent both parties to the transaction, the deadline may be changed.

Main mistakes when concluding a preliminary purchase and sale agreement

It is important that in the process of signing a preliminary agreement, all the main conditions of the future transaction may not be taken into account.

This fact contributes to the emergence of very serious disagreements during the conclusion and signing of the main agreement. In addition, in such situations, the preliminary agreement may be declared invalid.

This result may occur if all the main terms of the transaction were not specified in the pre-concluded document. The fact is that without this data, the document does not have legal force.

Based on this, both parties to the transaction must approach the issue of drawing up a preliminary purchase and sale agreement with maximum responsibility, while being aware of the full degree of responsibility.

Important: the preliminary purchase and sale agreement is created in 3 copies. One of them must stay legal entity, which, in fact, certified this document. The remaining two contracts must be between the buyer and the seller.

All disputes arising as a result of the implementation of the rules of the contract or all arising from it can be resolved only in the manner prescribed by the legislation of the country.

The last clause of this agreement is the details of both parties to the transaction, namely:

Passport details of both parties to the transaction - full name;
Legal address of persons;
The address where each person in the transaction resides;
Identification number of each party;
Possible bank details;
Current account of both parties;
Signatures of each party to the transaction.

The correct preparation of such a document and all the conditions clearly stated in it are the key to a successful future transaction.

Before drawing up and signing a preliminary purchase and sale agreement, the buyer is simply obliged to thoroughly check all possible documents and the house as a whole. This is the biggest mistake and oversight.

Thus, it is necessary to check:

the entire house register and make sure that no one is registered in the purchased apartment;
carefully check all legal documentation. If you do not understand this, then bring a competent lawyer with you to the transaction to review and study all the papers;
talk to your neighbors and find out as much as possible about the seller of the apartment;
You should never sign such a document without first viewing the apartment;
It is equally important that the buyer does not leave a deposit in advance, especially in large sizes.

You need to be extremely careful and careful!

Samplecontract document pre-purchase sales:

http://belforma.net/ contracts.

Finding suitable housing that meets our criteria often becomes a very labor-intensive process that takes away a large number of time. However, even after the dream home has already been found, its immediate purchase is not always possible - the seller or the buyer may have various obstacles.

For the most part, such circumstances are due to delays associated with mortgage approval and the lack of documents necessary for the transaction. In today's article, we will talk about a way to officially record the agreements reached by the seller and the buyer.

What is a preliminary purchase and sale agreement?

A preliminary purchase and sale agreement (PPSA) is a document that reflects the parties’ intentions to conduct a transaction in the future.

The document reflects the terms of the future transaction, such as price, terms, and other obligations of the parties towards each other. In addition, the contract specifies the responsibilities of the parties in the event that mutual obligations are not fulfilled.The document is not subject to registration with state accounting authorities, however, any of the parties in court may demand compensation for failure to fulfill obligations.

(PDKP) does not allow the parties to refuse the transaction simply because the seller found another buyer willing to pay more, or vice versa, because the buyer managed to become interested in another offer. But this document is valid only until the main purchase and sale agreement is signed or until the obligations under it are unfulfilled. That is, this is simply an agreement of intent and the document itself cannot be the basis for payment or transfer of real estate.

PDKP must comply with the standards reflected in Art. 429 of the Civil Code of the Russian Federation, otherwise this agreement may be declared invalid with all the ensuing consequences. For example, a seller, having found a more generous buyer, refuses to fulfill the contract and enters into a more profitable deal, and the court’s invalidation of the document means that he will not bear any financial liability. Despite the fact that the PDKP does not need to be registered, it would be better to have the document notarized - the notary will also check the text’s compliance with legal norms.

What is a preliminary agreement?

There are several types of preliminary agreement for the purchase and sale of real estate:

Preliminary agreement between the Developer and the Co-investor;
Preliminary agreement on the mortgage program;
Preliminary agreement with advance payment.

Preliminary agreement with the Developer

Exists The federal law on shared construction, which stipulates that the developer must raise money from the shareholder exclusively within the framework of the shared participation agreement (share participation agreement). The law provides protection for shareholders from unlawful actions of developers and from other risks not related to the activities of the developer. However, some companies are trying to circumvent this law, as it puts the developer in a rather strict framework in terms of fulfilling obligations to shareholders. The latter is often offered "bill scheme" in exchange for conditions that seem much more favorable compared to those offered by other developers under the DDU.

For buyers (to construction co-investors) It is proposed to conclude a preliminary contract for the purchase and sale of housing, which is at the construction stage. The main purchase and sale agreement can be concluded only when the house is completed and acquires the status of a property. It is impossible to conclude a purchase and sale agreement for a non-existent object, but the law does not prohibit investing in construction, and in such cases this circumstance is exploited.

The construction company enters into a PDCP and receives payment from an interested party acting as a co-investor (this investment is called a security deposit), and assumes obligations to carry out construction. The list of obligations of the developer also includes signing a final purchase and sale agreement with the co-investor, on the basis of which ownership will be re-registered. To protect the co-investor's investment, the construction company issues him a promissory note for an amount equal to the size of the investment. This bill does not act as a “right of claim” (a similar right presupposes the signing of the DDU), but under the terms of the PDCP, the company either enters into the main agreement or is obliged to return the money in exchange for the presented bill of exchange.

Risks of buying a home from a developer through PDKP

This is a rather risky transaction format, since if the company goes bankrupt or financial problems arise that prevent the completion of construction, the company will not be able to pay the bill. In principle, the company may even refuse to transfer completed housing (if, for example, market prices increased significantly during construction). The client is simply returned the amount of the bill and compensation, and a new buyer is found, from whom at the time of completion construction work you can take a lot more money.

Besides, PDKP is not registered in Rosreestr (unlike DDU) and the developer can sell the same apartment to several buyers; they will then have to fight among themselves in court to find out who the owner is. In turn, the DDU must pass state registration, and if upon completion of construction there are still applicants for housing (who signed the PDCP with the developer), then the court will rule in favor of the owner of the DDU.

Preliminary agreement on the mortgage program

This type of agreement is necessary when applying for a mortgage at a bank, and this mainly applies to transactions on the secondary market. To purchase housing from a developer, a slightly different scheme is used - the bank evaluates the applicant’s solvency and based on approval from the credit institution (documented), the borrower goes to sign an agreement with the developer. It should be noted that not a single bank will provide money for the “bill scheme”, since this is too risky a transaction; mortgages are now issued exclusively within the framework of the DDU.

A preliminary agreement is needed if we're talking about about a transaction with an apartment that is already ready and is currently owned by someone. The bank is interested in the following:

Documentary confirmation of the owner’s consent to sell the property;
Negotiated transaction value;
Timing of the transaction;
The procedure for settlements under the transaction and the procedure for transferring property.

Preliminary agreement with advance payment

This document is most often signed on the secondary housing market in order to document the terms of the upcoming transaction and justify the partial payment of funds. Signing such a document helps the buyer reserve the right to purchase, because after this the seller for a certain time suspends all efforts to find a client, albeit a more profitable one. In principle, this agreement can be easily replaced by an advance agreement.

If the speed of the transaction is not a critical parameter for the seller, he, for example, can wait until the buyer collects the required amount. The advance, in this case, will allow compensation for losses if the buyer is unable to ensure the fulfillment of obligations on his part. The buyer does not have to worry about good housing “going away” and can calmly collect money.

Main points of the preliminary agreement

First of all, the document contains information about the parties to the transaction. The names of everyone who currently has property rights to the property must be indicated. Each of them does not have the right to sell you living space individually, only with written and notarized permission and a power of attorney from the others. If not everyone who can somehow claim housing is included, then the following may well happen: the new owner will be obliged through the court to compensate the applicant for lost benefits. In turn, the buyer also enters the names of all future owners (his or her spouse, for example);

Information about living space. After all the information about entering into contractual relationship are fixed on both sides, it is necessary to indicate the address of the apartment, its footage, number of rooms, cadastral number, and so on. The most accurate description of the object eliminates misinterpretation of the document;

The transaction date is entered. The parties to the transaction jointly discuss and determine the time required to resolve all issues and prepare the required papers. The established deadline should be displayed both in the form of numbers and in words in order to eliminate possible misunderstanding;

For the seller, convincing evidence that the client really intends to purchase this particular living space after the specified time has passed is a cash deposit. Once accepted, the seller no longer displays the property for sale. The persons involved agree on the amount of the advance themselves. It is customary to leave a deposit of no more than 10% of the contract price of the property.

Accordingly, it is necessary to clarify how to deal with this money in the event of failure to fulfill contractual obligations, for example, if the buyer suddenly finds another apartment that is more suitable for him in price or location. In order to protect itself from damage associated, for example, with a refusal to a more profitable buyer, the seller can keep the funds received as a penalty for the buyer’s failure to fulfill his obligations. If you do not agree with this policy, then you should discuss in detail all the terms of payment, as well as the possibility of a return if you intend to continue your search. For its part, the buyer should see in the contract a clause stating how the seller will compensate for damage if he refuses to fulfill the terms of the contract.

Another important point. Owner (or each of the owners) must provide a written receipt of receipt of funds, which will indicate the amount and date of receipt.

Participants must clearly define the price of the transaction; after signing the preliminary and main agreement, the price remains unchanged. Other clauses of the contract may indicate that the price may change ( for example, if the buyer finds money only after a year or other circumstances occur);

The procedure according to which payment will occur is established. When conducting non-cash payment, details of all bank accounts that will be involved in this operation are indicated;

Liability for violation of contractual obligations is prescribed. All conditions must be agreed upon and recorded in writing;

A separate clause defines the seller’s responsibilities regarding the implementation of additional measures. For example, if you are purchasing housing on the secondary market, be sure to ensure that all previously registered residents have left the apartment.

Conclusion

With the help of this agreement, you can agree on all the points that will be included in the main document and all these points will be transferred to the purchase and sale agreement without changes. If there are any doubts regarding one of the provisions, it is best to wait to make a conclusion, because making changes in the future may not be possible. (without any concessions).

If the buyer decides to transfer the deposit, to be sure, it is better to do this in the presence of uninterested witnesses (not related to the seller). We strongly recommend that you carefully read the contract before signing. Do not trust a developer who offers fabulous conditions when concluding a PDCP - such temptations very often lead to bitter disappointments.

Igor Vasilenko