Continuing the theme of making payment for purchase of apartments, started last week, the "owner" learned some paradoxical cases related to the advance.
Of Realtors has such a joke: if you want to break a deal - invite a lawyer. Indeed, at first glance it might seem that lawyers sometimes too reinsured, that their doubts are unnecessary, because the real estate companies have established a practice of contracting, and the puzzling question of the theory once again sort of useless.
"Owner" has already written about how to make an advance payment for an apartment, what options there are and which one is preferable. It was an accepted and used universally by all realtors deposit and advance payment. It would seem, the subject has been exhausted. But the editors received and feedback from practicing lawyers, who oppose the current practice of making advance payment for purchased housing. Why not? Let's find out together.
Many lawyers are opposed to the practice of making advance payment for purchased housing. Why not? Let us examine together.
Imagine for a moment that you are - a potential buyer of the apartment. We looked at all like the apartment. Realtor offers a standard pattern - making payment by agreement of the deposit. In this case the buyer is usually painted by the following scheme. Once the deal goes through, and the sales contract is signed, the amount of contributions received is deducted from the total purchase price. If one of the proposed transaction will refuse it, shall apply penalties. Declined to a buyer, most likely will not get your deposit back. Refused to return the seller is obliged to deposit in double. Here are possible options, but one thing is clear: for all the participants for future transactions deposit is a certain guarantee that the contract of sale will be concluded within the stipulated time frame. The buyer makes a down payment, and begins to collect the missing money. Seller exempt apartment. Realtor collects the required documents. Everyone is waiting for the day when it signed a contract of sale.
So, let's not long before the appointed day the transaction fails. The landlord refuses to sell it, but to return the deposit in double size, and perhaps even in single, is not going to. Or the buyer refuses to buy, and the landlord intends to leave a deposit in his own pecuniary and moral damage. One person does not agree. Amicably agree not possible. Sounds sacramental phrase: "See you in court!" And then the fun begins ...
Now all previous agreements apply only one interpretation - a matter of law. And by law the prepayment, or as we call it, a deposit, earnest money is not inherently. Consequently, charged by the court, it can not be.
Lawyer tells Ilia Delyagin: "The payment of the deposit shall be allowed only on existing monetary obligations (§ 1 of Art. 380 Civil Code). Preliminary agreement does not create any financial obligations, as it follows from § 1 of Art. 429 of the Civil Code (preliminary contract has a duty to conclude a future contract). Payment of the deposit on preliminary contract is not based on law, and if the deposit is paid, the payment of a sum of money performed without legal basis. It follows that the amount of money paid by prior agreement, and called the advance party, is not, and the corresponding relations can not be extended to the regulation provided for Art. 380-381 of the Civil Code. That is the requirement to pay double the amount of the deposit provided for in paragraph 2 of Art. 381 of the Civil Code, can not be satisfied. "
That is, there is a risk that the court not taken place buyer will be denied recovery of double the amount of the deposit as a penalty. If the deal was not the fault of the buyer, the seller is also unlikely to be achieved through the courts for damages. It should be remembered that the deposit agreement as a way of ensuring fulfillment of the obligation is accessory, that is optional, an obligation. His auxiliary character manifested in the fact that an agreement on the deposit can not, for the time ahead of the conclusion of the contract pursuant to which the advance is provided.
In practice, our real estate market deposit agreement between the parties is usually separated from the main contract to its conclusion, while the law an agreement on the advance should precede the main conclusion of this contract of sale and its state registration.
So if the sales contract between the parties to the apartment at the time of the transfer of money as a deposit has not been signed, the deposit agreement does not entail legal effect.
Since the transfer of money to the seller the buyer is not based on an agreement (the agreement on the deposit can not be entered), such amount shall be returned to the buyer. And if the buyer decided not to buy an apartment, the court will oblige the seller to return the sum of the so-called advance in accordance with Art. 1102 of the Civil Code as unjust enrichment.
If the deal was not the fault of the seller, he had no obligation arises to transfer the ownership of an apartment buyer and compensation arising from the buyer for damages.
That is, the payment of the deposit as a guarantee to a certain contract of sale is actually no guarantee any of the parties. "The argument that paid" earnest money "confirms the conclusion of the contract, so his payment is valid, is not based on law. After the contract of sale of residential houses, apartments, part of the house or apartment is subject to state registration and is made from the time of such registration (Sec. 2, Art. 558 Civil Code). At the time of signing the preliminary contract is no contract for sale of the parties were not made. Consequently, it has not been registered in the manner prescribed by law "- continues to Ilya Delyagin. All this should be remembered when the realtor will ask you to make or accept money on deposit under the agreement
The buyer in a lawful refusal, or the Art of Trade
It is known that not long ago in the growing market for sellers of apartments actively raised the price on the day before the conclusion of the treaty, arguing that prices have risen. Now, the market is falling, they were in the reverse situation. Now the buyer of an apartment requires a lower price before the deal, because apartment prices dropped by several thousand dollars. Otherwise, he is insisting on the return of the deposit and refuses to deal. Here begins the litigation: who will get the deposit?
The owner of the apartment convinced that its advantages are obvious: because the deal breaks down the fault of the buyer, and seems to be a deposit under the agreement of the parties remain at his place. However, as demonstrated by the above appeals to the law and jurisprudence, the deposit is not a means to ensure the transaction, and if you want the buyer can easily prove that it is only unjust enrichment. However, only prove in court.
In general, only an experienced diplomat, who, and every realtor should be able to save the deal from the crash. Again, buyers in the current environment should be beneficial to contract an advance, which, on the one hand, to what they do not oblige, but on the other hand, came to nothing and obligates the owner of the apartment. This will help reduce the time of the transaction price of the apartment to the existing market levels.
In fact, the only reason which can "glue" the deal, the buyer is a desire to buy this particular apartment. So, sellers should try to increase the attractiveness of housing sold, because our real estate market, everything happens only on the good will of the parties, without the intervention of the law.
Of Realtors has such a joke: if you want to break a deal - invite a lawyer. Indeed, at first glance it might seem that lawyers sometimes too reinsured, that their doubts are unnecessary, because the real estate companies have established a practice of contracting, and the puzzling question of the theory once again sort of useless.
"Owner" has already written about how to make an advance payment for an apartment, what options there are and which one is preferable. It was an accepted and used universally by all realtors deposit and advance payment. It would seem, the subject has been exhausted. But the editors received and feedback from practicing lawyers, who oppose the current practice of making advance payment for purchased housing. Why not? Let's find out together.
Many lawyers are opposed to the practice of making advance payment for purchased housing. Why not? Let us examine together.
Imagine for a moment that you are - a potential buyer of the apartment. We looked at all like the apartment. Realtor offers a standard pattern - making payment by agreement of the deposit. In this case the buyer is usually painted by the following scheme. Once the deal goes through, and the sales contract is signed, the amount of contributions received is deducted from the total purchase price. If one of the proposed transaction will refuse it, shall apply penalties. Declined to a buyer, most likely will not get your deposit back. Refused to return the seller is obliged to deposit in double. Here are possible options, but one thing is clear: for all the participants for future transactions deposit is a certain guarantee that the contract of sale will be concluded within the stipulated time frame. The buyer makes a down payment, and begins to collect the missing money. Seller exempt apartment. Realtor collects the required documents. Everyone is waiting for the day when it signed a contract of sale.
So, let's not long before the appointed day the transaction fails. The landlord refuses to sell it, but to return the deposit in double size, and perhaps even in single, is not going to. Or the buyer refuses to buy, and the landlord intends to leave a deposit in his own pecuniary and moral damage. One person does not agree. Amicably agree not possible. Sounds sacramental phrase: "See you in court!" And then the fun begins ...
Now all previous agreements apply only one interpretation - a matter of law. And by law the prepayment, or as we call it, a deposit, earnest money is not inherently. Consequently, charged by the court, it can not be.
Lawyer tells Ilia Delyagin: "The payment of the deposit shall be allowed only on existing monetary obligations (§ 1 of Art. 380 Civil Code). Preliminary agreement does not create any financial obligations, as it follows from § 1 of Art. 429 of the Civil Code (preliminary contract has a duty to conclude a future contract). Payment of the deposit on preliminary contract is not based on law, and if the deposit is paid, the payment of a sum of money performed without legal basis. It follows that the amount of money paid by prior agreement, and called the advance party, is not, and the corresponding relations can not be extended to the regulation provided for Art. 380-381 of the Civil Code. That is the requirement to pay double the amount of the deposit provided for in paragraph 2 of Art. 381 of the Civil Code, can not be satisfied. "
That is, there is a risk that the court not taken place buyer will be denied recovery of double the amount of the deposit as a penalty. If the deal was not the fault of the buyer, the seller is also unlikely to be achieved through the courts for damages. It should be remembered that the deposit agreement as a way of ensuring fulfillment of the obligation is accessory, that is optional, an obligation. His auxiliary character manifested in the fact that an agreement on the deposit can not, for the time ahead of the conclusion of the contract pursuant to which the advance is provided.
In practice, our real estate market deposit agreement between the parties is usually separated from the main contract to its conclusion, while the law an agreement on the advance should precede the main conclusion of this contract of sale and its state registration.
So if the sales contract between the parties to the apartment at the time of the transfer of money as a deposit has not been signed, the deposit agreement does not entail legal effect.
Since the transfer of money to the seller the buyer is not based on an agreement (the agreement on the deposit can not be entered), such amount shall be returned to the buyer. And if the buyer decided not to buy an apartment, the court will oblige the seller to return the sum of the so-called advance in accordance with Art. 1102 of the Civil Code as unjust enrichment.
If the deal was not the fault of the seller, he had no obligation arises to transfer the ownership of an apartment buyer and compensation arising from the buyer for damages.
That is, the payment of the deposit as a guarantee to a certain contract of sale is actually no guarantee any of the parties. "The argument that paid" earnest money "confirms the conclusion of the contract, so his payment is valid, is not based on law. After the contract of sale of residential houses, apartments, part of the house or apartment is subject to state registration and is made from the time of such registration (Sec. 2, Art. 558 Civil Code). At the time of signing the preliminary contract is no contract for sale of the parties were not made. Consequently, it has not been registered in the manner prescribed by law "- continues to Ilya Delyagin. All this should be remembered when the realtor will ask you to make or accept money on deposit under the agreement
The buyer in a lawful refusal, or the Art of Trade
It is known that not long ago in the growing market for sellers of apartments actively raised the price on the day before the conclusion of the treaty, arguing that prices have risen. Now, the market is falling, they were in the reverse situation. Now the buyer of an apartment requires a lower price before the deal, because apartment prices dropped by several thousand dollars. Otherwise, he is insisting on the return of the deposit and refuses to deal. Here begins the litigation: who will get the deposit?
The owner of the apartment convinced that its advantages are obvious: because the deal breaks down the fault of the buyer, and seems to be a deposit under the agreement of the parties remain at his place. However, as demonstrated by the above appeals to the law and jurisprudence, the deposit is not a means to ensure the transaction, and if you want the buyer can easily prove that it is only unjust enrichment. However, only prove in court.
In general, only an experienced diplomat, who, and every realtor should be able to save the deal from the crash. Again, buyers in the current environment should be beneficial to contract an advance, which, on the one hand, to what they do not oblige, but on the other hand, came to nothing and obligates the owner of the apartment. This will help reduce the time of the transaction price of the apartment to the existing market levels.
In fact, the only reason which can "glue" the deal, the buyer is a desire to buy this particular apartment. So, sellers should try to increase the attractiveness of housing sold, because our real estate market, everything happens only on the good will of the parties, without the intervention of the law.
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