Termination of a preliminary agreement for the purchase and sale of an apartment: does the paper have legal force, is it possible to terminate its validity and how to do this, sample document

Legal grounds

The contract can be terminated on the following grounds:

By mutual agreement of the parties - when the parties to the transaction made a mutual decision to terminate it, including for personal reasons and reasons. For example, loss of funds, relocation, disruption of some events, force majeure. (Clause 1 of Article 450 of the Civil Code of the Russian Federation).
At the initiative of one party – terminated in this case by a court decision (clause 2 of Article 450 of the Civil Code of the Russian Federation) if:
The possibility of cancellation of the transaction was provided for in the preliminary purchase and sale document.

What does a contract look like?

The contract form is drawn up in a strictly defined form. According to the law, it must contain basic information relating to the subject of the transaction, personal and contact information of the seller and buyer and their obligations, as well as signatures.

The deposit agreement is drawn up by the owner selling the living space or his representative. The entire amount received after completion of the transaction must be transferred to the owner. Regardless of how the deposit agreement is drawn up (either independently or with the support of qualified specialists), the form must contain the following information:

Date and address of the place where the deposit agreement was signed.
The exact amount of payment (written verbally (in capital letters) as well as in numbers) that the seller will receive and the duration of the contract. You should also indicate exactly how the money will be transferred - most often the amount is transferred in cash from a notary.
Passport details of both parties to the agreement (full full names and addresses of all co-owners of the apartment and the buyer of the property) and their contact information.
The full amount of the apartment purchase and sale transaction and its characteristics. Here they describe the subject of the future transaction, its location, square footage, etc. The more fully the apartment is described, the safer the transaction.
Description of the obligations assumed by the parties to the agreement. Indicate the most complete list of actions and what the violation of the terms of the agreement leads to - it is on the basis of the points of the agreement that the relations of the parties will be built.
Personal signatures of the seller and buyer.
Title document for the apartment. Its original must be in the hands of the seller, otherwise there is a risk of becoming a victim of a fraudster (copies, even certified ones, are easily forged).
If the parties have previously entered into a preliminary agreement for the purchase and sale of an apartment, it is also necessary to indicate basic information about it.

If the apartment belongs to a minor owner, and the guardianship and trusteeship authority has authorized the sale of the property, their legal representatives must sign the form.

In addition, you can specify other information and conditions determined by the parties to the transaction:

Technical condition of the apartment.
The number of people registered in the apartment (if you don’t know this, the purchase and sale transaction may later be challenged in court).
Transfer of furniture and household appliances in the apartment (if required by the terms of purchase and sale of the apartment).
The procedure and timing for drawing up the final purchase and sale agreement for an apartment, as well as the procedure for mutual settlement (how the money will be transferred to the seller for the purchase of housing, when the transfer and acceptance certificate will be drawn up, etc.).
Which party bears all costs associated with the transfer of ownership, collection of documents and registration of the contract.

A visual example can be provided to you by the civil service, or by a notary or lawyer. You can also download and view a sample deposit agreement here:

How to terminate?

The procedure for terminating a transaction is regulated by Art. 452 of the Civil Code of the Russian Federation. It will depend on what method is chosen for this, whether both parties to the agreement agree to terminate it or whether one party is the initiator.

The procedure is as follows:

Carefully study all clauses of the contract. As a rule, the preliminary agreement contains a clause on the rules for its termination. If there is no such clause, then the participants have the right to terminate their relationship in accordance with the law. They can come to an agreement, or they will have to defend their interests in court.
Check compliance with the conditions (the fact of violation will be grounds for termination).
Check the correctness of the information entered and the execution of the document (an incorrectly drawn up contract can be declared invalid).
Determine the reason and choose a method for ending the relationship.

With mutual consent of the parties

In this case, you can do without a trial and resolve all issues peacefully.
The parties sign a termination agreement, which has legal force and is drawn up for each participant according to the rules and form of the pre-contract. It must contain the following information:

date and place of imprisonment;
passport details of participants and representatives, if available;
if one of the parties is a legal entity, then its address and name are indicated;
details of the contract that is being terminated;
description of the property;
the date on which the relationship ends;
clause on the absence of mutual claims;
the procedure for resolving disagreements if they exist;
date and signatures of participants.

If the original agreement was certified by a notary, then the same procedure should be followed with the agreement.

Is it possible on the initiative of one of the parties?

If one party wants to terminate the contract, and the other does not agree with it, then the issue is resolved in court. However, before this, the parties are obliged to try to resolve the dispute out of court in accordance with paragraph 2 of Art. 452 of the Civil Code of the Russian Federation. To do this, a notice is sent to the second participant with a proposal to terminate the transaction. It is drawn up in any form and must contain the following information:

Name;
initials of participants and their contacts;
details of the document being terminated;
references to legal norms that are the basis for termination;
description of the violation of the terms of the contract or other reasons for cancellation of the transaction (the appendix indicates the documents justifying the right to terminate);
deadline for response;
signature and date of registration.

The notice is delivered in person against a receipt or sent by registered mail with return receipt requested. If the other party refuses or the response is not received within the time specified in the agreement or notice, then the demand for termination is submitted to the court. When the deadline for a response is not documented, the law gives time to appeal to the court within thirty days after the notification is sent.

Through the court

A statement of claim for termination of the contract is filed with the district court at the location of the object of the transaction in accordance with Article 30 of the Code of Civil Procedure of the Russian Federation. The following are attached to the claim:

receipt of payment of state duty;
passport details of the parties and representatives;
document of purchase and sale;
a copy of the notice with confirmation of dispatch or delivery;
information about calculations, if any;
extract from the Unified State Register of Legal Entities for a legal entity;
documentary evidence confirming violation of the conditions;
power of attorney if a representative is involved.

The application must be made in writing and indicate:

name of the court;
plaintiff’s passport details and contacts;
information about the defendant;
circumstances giving rise to the appeal to court;
references to legal norms that are the basis for termination;
the essence of the requirements;
list of applications;
number and signature.

The applicant has the right to additionally submit claims for damages and compensation for moral damage.

Statement of claim for termination of the deposit agreement

To the magistrate of judicial district No. ___ of the "____________" district of Moscow Address: _______________________________

Plaintiff: _________________________ Address: _________________________

Defendant: _________________________ Address: _________________________

Cost of claim: ________ rubles Compensation for moral damage: _____ rubles. Legal services: _____ rubles

STATEMENT OF CLAIM for termination of the agreement on deposit and collection of funds

In ____________, I decided to purchase a plot of land in the Kaluga region. I intended to purchase a plot of land with the proceeds from the sale of a plot of land with a house in my ownership. Having examined the property put up for sale by the Respondent - a plot of land at the address: _______________________, I made a decision to purchase this property. Due to the lack of funds at the time of inspection of the land plot, the Respondent was asked to leave a deposit in the amount of ___________ rubles. I expressed a categorical refusal, but the Defendant began to insist on a deposit, as a result of which two agreements were concluded between us: 1. Agreement on a deposit dated ____________, under the terms of which I transferred ________ rubles to the Defendant. 2. Agreement on the deposit dated ___________, under the terms of which I transferred __________ rubles to the Defendant. On the day of signing the deposit agreements, we agreed on the amount for which I would buy the land plot owned by the Defendant. The price of the land purchase and sale agreement was _________ rubles. After receiving the funds, I informed the Defendant that I was ready to purchase the land on the terms previously agreed upon between us. However, the Defendant informed me that the cost of the land plot you are selling has increased to ________ rubles. I do not have such a sum of money available, as a result of which I am forced to refuse to conclude a contract for the sale and purchase of a land plot and demand the return of the deposit in the amount of _________ rubles.

By virtue of Art. 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements. In accordance with Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law. According to Art. 450 of the Civil Code of the Russian Federation, at the request of one of the parties, the contract can be changed or terminated by a court decision only: 1) in case of a significant violation of the contract by the other party; 2) in other cases provided for by the said Code, other laws or agreement. By virtue of Art. 451 of the Civil Code of the Russian Federation, a significant change in the circumstances from which the parties proceeded when concluding an agreement is the basis for its modification or termination, unless otherwise provided for by the agreement or follows from its essence. A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms. In accordance with paragraph 3 of Art. 451 of the Civil Code of the Russian Federation, upon termination of a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of termination of the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract. Based on Art. 453 of the Civil Code of the Russian Federation, upon termination of the contract, the obligations of the parties cease. According to Art. 38 of the Civil Code of the Russian Federation, upon termination of an obligation before the start of its execution by agreement of the parties or due to the impossibility of execution (Article 416), the deposit must be returned.

The current situation caused me significant moral suffering and enormous physical inconvenience. According to Art. 151 of the Civil Code of the Russian Federation, moral harm is understood as physical and moral suffering caused by actions that violate the personal non-property rights of a citizen or encroach on other intangible benefits belonging to him, as well as in other cases provided for by law. Moral damage is subject to compensation by the causer of harm. I estimate the amount of monetary compensation for moral damage caused to me at _________ rubles. It should be noted that in order to protect my violated rights, I was forced to seek legal assistance from LLC “__________”, to whose cash desk I paid 16,320 rubles. By virtue of Art. 15 of the Civil Code of the Russian Federation, these expenses relate to my losses and are subject to reimbursement by you.

According to Art. 11 of the Civil Code of the Russian Federation, the protection of violated or disputed civil rights is carried out in accordance with the jurisdiction of cases established by procedural legislation, a court, an arbitration court or an arbitration court. By virtue of Art. 12 of the Civil Code of the Russian Federation, the protection of civil rights is carried out by terminating or changing the legal relationship. Based on Art. 3 of the Code of Civil Procedure of the Russian Federation, an interested person has the right, in the manner established by the legislation on civil proceedings, to go to court.

Based on the above, guided by Art. Art. 15, 38, 151, 309, 310, 450-451 Civil Code of the Russian Federation,

ASK:

1. Terminate the deposit agreement dated _________, concluded between me, _____________________, and the Defendant, ________________, by collecting from the defendant, __________________, in my favor, funds in the amount of ___________ rubles. 2. Terminate the deposit agreement dated _________, concluded between me, _________________, and you, ______________, by collecting from the defendant, ____________, in my favor, funds in the amount of ___________ rubles. 3. To recover from the defendant, __________, in my favor, in compensation for moral damage caused, funds in the amount of __________ rubles. 4. To recover from the defendant, ____________, in my favor, in compensation for the expenses I incurred in paying for legal services, funds in the amount of __________ rubles.

APPENDIX: Copy of this statement of claim – 1 copy; A copy of the deposit agreement dated ___________ – 2 copies; A copy of the deposit agreement dated ___________ – 2 copies; Copy of the contract and receipt of LLC “__________” - 2 copies; A copy of the claim and the response to it – 2 copies; Receipt for payment of state duty.

"___" ______________ G. _________/__________/

Financial implications

When the parties terminate the relationship and challenge the transaction in court, it is fundamentally important to understand in what capacity the funds were contributed under the agreement and whether they were contributed at all. The consequences of returning the money will depend on this.

If the original contract provided for and paid an advance, which is a preliminary method of payment, and the transaction did not take place, then the money must be returned without fail, regardless of whose fault the main contract was not concluded.
If the original agreement provided for and paid a deposit, which is a way to secure the obligation, then if the deal fails, the consequences for the participants will be different. If the party who gave the deposit withdraws from the contract, the deposit is not returned. If the seller refuses the contract, he is obliged to return double the amount of money to the buyer.
If the text of the preliminary purchase and sale document did not contain conditions for the payment of money, but they were transferred to the seller, then bank statements and witness statements may become evidence in court, and the money can be returned.

The conclusion of a preliminary agreement does not mean that the main transaction will take place. If better options arise or difficult situations arise, sometimes even beyond the control of the parties, the contract can be terminated. But the participant taking action to terminate the relationship must act reasonably and in good faith so that there are no negative consequences for the other participant in the transaction.

How to apply?

Important information about what exactly is considered a deposit is contained in the Civil Code of the Russian Federation (Article 380). According to him, the deposit is an advance, i.e. a specific amount of money provided to the seller by a person wishing to purchase property in order to secure the mandatory fulfillment of future financial and other obligations (appearing when drawing up a purchase and sale agreement).

So, so that in the future, after the advance has been issued, no controversial situations arise, a deposit agreement is concluded. It helps both parties:

The buyer will be sure that the property he likes will not go to other people, but will be sold to him.
The person selling the property will be able to make sure that the buyer is interested in the purchase - that he will not cancel everything at the last moment and is really determined to carry out the transaction.

The agreement on the provision of a deposit is not endowed with independent legal force: it rather complements the preliminary agreement for the purchase of real estate.

Before preparing a deposit agreement, you need to understand how a deposit differs from an advance payment . The legislation does not stipulate on what grounds the payment provided to the seller is recognized as an advance. The following differences exist:

The deposit is transferred to the real estate seller only after the corresponding agreement has been concluded. It assigns a certain number of responsibilities to the parties, and, most importantly, it states that a purchase and sale transaction will be carried out in the future. Otherwise, financial sanctions will come into force against the violator of the agreement.
An advance is also provided to the seller, but does not guarantee that in the future he will be obliged to sell the apartment to the person who gave the deposit. If the owner decides not to conclude the deal (no matter for what reason), he can easily return the money received and not suffer negative consequences.

For more information on what a deposit and an advance payment are, see the following video:

If the agreement on the provision of a deposit does not contain clear signs indicating that the payment is a deposit, it is recognized as an advance payment. Therefore, in the agreement form (especially in its text part) it is necessary to record direct evidence that the amount was indeed issued as a deposit.

Confirmation that the money was provided as a deposit can be:

A clause according to which the amount issued is part of the price for the purchase of real estate.
Provisions that guarantee that the parties will carry out the transaction in the future. In case of violation, the offending party receives financial sanctions.

The Civil Code (Article 381) highlights the responsibility of the seller and buyer for violation of the contract:

Typically, the deposit is paid to the seller when a preliminary agreement is concluded, but an advance is provided after the agreement is signed.
If the terms of the deposit agreement are violated, the buyer loses the entire amount provided and will no longer be able to return it.
If the seller violates the terms of the agreement, he will have to pay the buyer an amount exceeding twice the amount of the deposit. But most often this is difficult to achieve - the seller will return the entire amount of the advance, but the rest will most likely have to be returned in court.
But an advance is not a guarantee of fulfillment of obligations: the buyer will not have to return the full amount of the advance to you, and the seller will have to keep the payment for himself legally if the contract is violated.
In a situation where the parties are unable to make a profitable transaction and they decide to cancel it, the seller will return the full amount of the advance to the buyer.

The legislation (Article 380 of the Civil Code) states that the deposit agreement must be drawn up only in writing, and:

Or a separate document.
Or as part of a preliminary agreement.

An agreement to provide a deposit can be concluded even when the buyer was looking for real estate through realtors. However, remember that:

The agency may ask you to pay a deposit before suitable premises have been found. In this case, the deposit will not be recognized as such, since no guarantees are attached.
The buyer must ensure that the seller receives payment.

If the parties decide to enter into a deposit agreement for the purchase of living space, they are required to determine:

The exact amount of payment and the procedure for providing money to the seller (if the parties so desire, with a receipt for receipt of the agreed amount).
The full amount of the apartment being sold.
Sign the agreement in front of witnesses, co-owners of the apartment (if it is in shared ownership). The document must be notarized (this is not a mandatory condition, it is determined at the request of the parties). Only after it is signed by all parties to the transaction does the agreement enter into legal force.

Prepare at least 2 copies - one for each participant in the transaction. It is better that all conditions and clauses of the agreement are agreed upon and accepted before signing the contract, since any uncertainties in the wording or controversial issues can later lead to legal proceedings. In addition, if the agreements were violated, the injured party will be able, through the court, to oblige the culprit to compensate for the losses caused.

It is advisable to involve persons who are not relatives or close friends of any of the parties to the transaction as witnesses present when signing the deposit agreement.

If the text of the contract is written by hand, you must use a pen with blue or black ink.

Therefore, prepare in advance:

Original and copies of passport (for each side).
Title documents for real estate, as well as permission from all co-owners for sale (spouses and guardianship authorities, if the owner is a minor child).

general information

The agreement in this case is concluded only at the request of both parties, since it is a non-binding document. Purchase and sale agreements are rarely concluded in advance, before the transfer or transfer of money to the seller. This is possible if this is a preliminary agreement with a deposit. The buyer, for example, did not have time to pay the full amount to the seller, and the parties decided to cancel the transaction.

If the buyer gave the seller a deposit, then the seller who refused the transaction will have to pay the other party a double deposit. If the initiative comes from the buyer, the seller keeps the deposit for himself. This norm is prescribed in Article 381 of the Civil Code of the Russian Federation.

The parties, in addition, can agree to return the deposit to the buyer in a single amount. The law does not prohibit this. In this case, it is also not necessary to draw up an agreement. But by decision of the parties this can be done.

The agreement must stipulate that the preliminary contract will be terminated at the request of both parties, and that the seller and buyer have no claims against each other. They also indicate the procedure for returning the deposit or non-returning it.

The agreement may be an annex to the contract. It can be called an additional agreement to the contract or an agreement to terminate the purchase and sale agreement. Drawed up in two copies: for each of the parties.