How to return an advance (deposit) for an apartment from a realtor under a preliminary agreement

Home/Trade/Return of deposit

A deposit is a form of advance payment used in situations where the conclusion of the main transaction is not yet possible for one reason or another. The agreement concluded by the parties obliges subsequently to fulfill the main agreement relating to the sale of property or the provision of services.

IMPORTANT

The deposit is always expressed in monetary form, and its transfer is a method of guarantee that protects participants from non-fulfillment of their obligations by the counterparty.

What is a deposit?

The legal concept of this type of transfer of money is formulated in the Civil Code of the Russian Federation. Article 380 clarifies that a deposit is a sum of money transferred by one party to the other as an advance payment from the full amount of payment due under a written agreement.

Attention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call Moscow; Saint Petersburg; Free call for all of Russia.

Attention

Earnest payment is a mutual method of obligation for the execution of a full-fledged agreement between the parties.

The transfer of money is always accompanied by the conclusion of a written agreement, which specifies the form (deposit), the parties, the subject and the amount of the transferred amount of money. Notarization of the document is not required, however, the concept of deposit must be indicated in its title and text, otherwise it will be considered that the parties have entered into an advance agreement, which entails other obligations.

For your information

Oral agreements or written documents that do not comply with legal standards are not recognized as a deposit, and the payment itself will most likely be recognized as an advance payment.

An alternative to a written agreement is a receipt of money, which is written from the person receiving the payment. The receipt also indicates the parties, the subject of the obligations and the amount of the contribution. The receipt must indicate that the financial contribution is a deposit.

Can the advance received be considered unjust enrichment of the customer?

Paragraph text 2 hours 4 tbsp. 453 of the Civil Code of the Russian Federation indicates that the rules on obligations due to unjust enrichment apply to the relations of the parties to an agreement terminated after one of the parties has fulfilled its obligation (or part of it). The only exceptions can be situations in which the agreement concluded by the parties stipulates otherwise.

Thus, depending on the presence or absence of a clause in the agreement on the procedure for returning the advance upon termination of the contract, the funds to be transferred may be qualified differently. The position of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 1123/13 dated November 5, 2013, is as follows: if at the stage of concluding an agreement the parties agreed that the contractor would return the advance amount received by him upon termination of the contract, this amount cannot be qualified as unjust enrichment - in In this case, the money is transferred to its owner on the basis of an existing agreement. A court decision on the return of funds received as a result of unjust enrichment can be made only if the parties did not agree on the return of the advance at the conclusion of the contract.

***

So, the advance payment transferred by the customer to the contractor at the stage of concluding the contract is subject to return only if the latter does not incur any expenses associated with the implementation of activities aimed at fulfilling his obligations. If he has already spent the funds received (purchased materials, purchased tools, paid for transportation and other targeted expenses), the amount to be returned is reduced by the amount of expenses incurred by him. If the amount of his expenses exceeded the amount of the advance, he has the right not only not to return the funds received, but also to demand from the customer a full reimbursement of the costs incurred. As a rule, such issues have to be resolved in court, so the contractor should collect evidence confirming the fact of the intended use of funds.

Differences from advance and deposit

The legal concept of advance is not used in Russian legislation, but in practical terms, advance and deposit are close, but not identical terms.

An advance is also a preliminary payment before the transfer of property, provision of services or performance of work. However, it is not a form of security for obligations and can always be returned or reclaimed without any consequences for the parties. Making an advance payment does not oblige the parties to complete the transaction.

A pledge is a form of security for obligations under a contract. However, it does not apply to the advance payment and is drawn up in a separate agreement. If the deposit is expressed in monetary terms and cannot exceed the amount of the principal amount, then the collateral is usually property whose value is equal to or greater than the value of the subject of the agreement.

Additional Information

Typically, a collateral agreement is concluded as security for a loan agreement, for example, with a mortgage.

Thus, an advance is a preliminary payment that does not ensure the fulfillment of the contract, and a pledge is a form of security for obligations that is not a preliminary payment.

Advance and deposit: the difference is significant!

The Civil Code defines the concept of only a deposit, but not an advance. The deposit is the amount that is transferred to the seller by the potential buyer towards the main payment. And this amount is actually legally considered to be security for the planned conclusion of the contract and the fulfillment by the parties of their purchase obligations.

But the advance payment, which plays an important role in the real estate market, unfortunately, does not have a legislative basis. A small amount paid by the buyer, which is part of the total cost of the apartment (usually up to 10%), performs exclusively the function of payment, being just an advance payment. It does not fulfill the function of securing the purchase inherent in the deposit.

Therefore, when the buyer does not fulfill the obligation or the preliminary agreement is terminated for any reason, the advance amount must be returned by the seller .

Civil Code of the Russian Federation on the return of the deposit

The return is regulated by Art. 381 of the Civil Code of the Russian Federation “Consequences of termination and failure to fulfill an obligation secured by a deposit.” According to the article, refunds are made as follows:

• if the contract is terminated due to the fault of the party who paid the deposit, then it remains with the counterparty;
• if the culprit is the party who accepted the payment, then it undertakes to return the payment in double amount;
• if the agreement is terminated by agreement of the parties or due to “force majeure”, then the amount is returned in a single amount.

Sample statement of claim for recovery of deposit

To the Lyubertsy City Court of the Moscow Region 140005, Lyubertsy, st. Calarasi, 19

Plaintiff: Full name registered at: address

Defendant-1: Full name1 registered at: address

Defendant-2: Full name2 registered at: address

Cost of claim: ___________ rubles, state duty __________ rubles

STATEMENT OF CLAIM “for collection of deposit”

" "_________201_g. an agreement was concluded between the Defendants and the Plaintiff (hereinafter referred to as the Agreement), according to which Defendant-1 is the Contractor, Defendant-2 is the Seller, and Plaintiff-full name is the Buyer. According to clause 1.1. of the Agreement, the Contractor undertakes, for a fee, to perform services aimed at selling the apartment located at the address: ADDRESS, and the Buyer - to transfer to the Seller a deposit to ensure the fulfillment of obligations to conclude a purchase and sale agreement for the apartment. According to clause 1.2 of the Agreement, the Contractor’s responsibilities for legal support of the purchase and sale transaction of the above-mentioned apartment were also determined. According to clause 1.5 of the Agreement, the Plaintiff and the Defendant (Seller and Buyer under the above agreement) undertake, before _______201__, to conclude an Agreement for the sale and purchase of the apartment specified in clause 1.1 of the Agreement, in the office of the Contractor, located at the address: ADDRESS, then at to this Agreement “Office” or PJSC Sberbank of Russia hereinafter referred to as “Bank”. In fulfillment of its obligations under the Agreement, in accordance with the requirements of clauses 2.3.1 and 2.3.2 of the Agreement, the Plaintiff paid Defendant-1 a sum of money as a deposit in the amount of AMOUNT (amount in words) rubles, towards payments due from the Buyer for the upcoming agreement for the sale and purchase of an apartment, in ensuring the execution of the agreement. Meanwhile, according to clause 3.5.3. Agreement The Seller is obliged to provide all documents necessary for the transaction, including to verify the legal purity of the specified transaction. However, the complete list of these documents is not defined in the Agreement and, in accordance with clause 3.5.3 of the Agreement, the Seller is obliged to provide all the documents necessary for the transaction, requested by the Contractor to verify the legal purity of the specified transaction. As part of the meeting between the Plaintiff and the Defendants, the Plaintiff familiarized himself with the documents provided by Defendant-1, during the analysis of which it was revealed that minor children were registered and permanently residing in the apartment, which may indicate the possible use of maternity capital funds by Defendant-1 when paying for the indicated apartment. " "_______201_g. The Plaintiff sent a statement to Defendant-2 requesting additional documents from the Seller, since the employee of Defendant-2 did not take steps to verify the legal cleanliness of the apartment, in particular, checking the use of maternity capital funds. Also, the employee of Defendant-2, the Plaintiff, was not informed about the risks of purchasing an apartment that had previously been purchased using maternity capital, since the Seller had not previously provided documents confirming the use of maternity capital. Defendant – 2, redirected the Plaintiff’s request to provide the documents necessary for the transaction to Defendant – 1, thereby expressing his agreement that the documents specified in the Plaintiff’s application are indeed necessary for the transaction. However, Defendant 1 refused to provide the documents necessary for the transaction. According to paragraph 4 of Art. 10 of the Federal Law of December 29, 2006 No. 256-FZ “On additional measures of state support for families with children”, residential premises acquired (built, reconstructed) using funds (part of the funds) of maternal (family) capital are registered as the common property of the parents, children (including the first, second, third child and subsequent children) with the size of shares determined by agreement. Current legislation allows the acquisition (construction, repayment of mortgages) of housing using maternity capital and registration of ownership in the name of one of the family members, with the obligatory condition being the execution of a written obligation to allocate shares to all family members, including the spouse (husband, wife), first and subsequent children, including those born after receiving a maternity capital certificate. Decree of the Government of the Russian Federation dated December 12, 2007 No. 862 “On the Rules for allocating funds (part of the funds) of maternal (family) capital to improve housing conditions” determines the timing of the distribution of shares (allocation of shares) to all family members, according to which after the acquisition of real estate using funds maternity capital, the buyer of real estate is obliged to distribute shares (allocate shares) to all family members, including the spouse (husband, wife), first and subsequent children, including those born after receiving the maternity capital certificate. Thus, when using maternity capital funds to purchase an apartment and not distributing shares to minor children, the rights and legitimate interests of the latter are violated. According to paragraphs 1 and 2 of Art. 166 of the Civil Code of the Russian Federation, a transaction is invalid on the grounds established by law, due to its recognition as such by the court (voidable transaction) or regardless of such recognition (void transaction). At the same time, a contestable transaction may be declared invalid if it violates the rights or legally protected interests of the person challenging the transaction, including if it entails unfavorable consequences for him. Failure to comply with these requirements is a gross violation of the rights of children and grounds for challenging the transaction (part of the transaction) for the further sale of the specified real estate. Due to the failure to provide the specified documents, " "_______201_g. The Plaintiff sent a claim to Defendant 1, with reference to clause 4.3. of the Agreement, according to the Claim sent to the Defendant, the Plaintiff demanded the return of the amount of the deposit paid under the Agreement. This requirement was based on the failure of Defendant-1 to provide documents, in violation of clause 3.5.3 of the Agreement, namely, documents confirming the use (or non-use) of maternity capital funds were not provided when purchasing an apartment located at the address: ADDRESS. By requesting these documents, the Plaintiff proceeded from the need to verify the legal purity of the purchased apartment, which was not done by the Defendants. The specified inaction on the part of the Defendants is the reason for the failure of the transaction. Defendant -1, in response to the claims, refused to provide the documents necessary for the transaction, which actually led to the failure of the transaction on the part of the Seller - FULL NAME1. According to the response to the claim of Full Name 1 dated " "________201_, Full Name 1 admitted the fact of not providing the necessary documents, thereby violating clause 3.5.3 of the Agreement. Moreover, FULL NAME1 grossly violated clause 3.5.2. An agreement according to which the Seller is obliged, after receiving the deposit specified in clause 2.3.1 of this Agreement, not to offer to purchase the above-mentioned property to third parties during the validity period of this Agreement. Meanwhile, as of ""______201_, i.e. after the conclusion of the Agreement, this property was freely advertised on Internet resources (links saved by the Plaintiff). According to clause 4.2. Agreement, in the event of failure to fulfill this Agreement by the Seller (refusal, evasion from concluding an agreement for the purchase and sale of an apartment, or failure to appear until “” ______ 201_ inclusive at the “Office” or “Bank” to sign the agreement for the sale and purchase of an apartment on the terms established by this agreement) The Seller pays the Buyer double the amount of the deposit specified in clause 2.3.1 . of this Agreement within 3 (three) days from the date of failure to fulfill this Agreement. In accordance with Art. 309, 310 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, and unilateral refusal to fulfill them is not allowed except in cases provided for by law. According to paragraph 1. Art. 380 of the Civil Code of the Russian Federation, a deposit is recognized as a sum of money given by one of the contracting parties in payment of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution. According to paragraph 2 of Art. 381 of the Civil Code of the Russian Federation, if the party that gave the deposit is responsible for failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit. Guided by the provisions of Art. 15 of the Civil Code of the Russian Federation, a person whose rights have been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profits). Taking into account the above, the Defendants violated the terms of the Agreement, which led to the failure of the transaction, which was planned in advance. When concluding the Agreement, the Plaintiff proceeded from the principle of good faith of the parties and the professionalism of the Contractor, however, the Defendants not only violated the terms of the Agreement and disrupted the deal, but also caused moral harm to the Plaintiff, expressed in moral suffering, due to the loss of time and the need to carry out an additional search for the acquisition of another apartment. According to Article 151 of the Civil Code of the Russian Federation, if a citizen is caused moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose a monetary obligation on the violator compensation for said damage. In accordance with Article 15 of the Law of the Russian Federation “On the Protection of Consumer Rights”, moral damage caused to the consumer as a result of violation by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) of consumer rights provided for by the laws and legal acts of the Russian Federation governing relations in the field protection of consumer rights, is subject to compensation by the causer of harm if he is at fault. The amount of compensation for moral damage is determined by the court and does not depend on the amount of compensation for property damage. Compensation for moral damage is carried out regardless of compensation for property damage and losses incurred by the consumer. When determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the offender and other circumstances worthy of attention. The court must also take into account the degree of physical and mental suffering associated with the individual characteristics of the person who suffered harm. Based on Art. 1101 of the Civil Code of the Russian Federation, compensation for moral damage is carried out in cash. The amount of compensation for moral damage is determined by the court depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the harm-doer in cases where guilt is the basis for compensation for harm. When determining the amount of compensation for harm, the requirements of reasonableness and fairness must be taken into account. Thus, the Defendants caused moral damage, which the Plaintiff determined in the amount of AMOUNT (AMOUNT) rubles. Due to the impossibility of an out-of-court settlement of this conflict, the Plaintiff sought legal assistance from PGS LLC and suffered losses in the amount of AMOUNT (SUMMARY) rubles, which is confirmed by the following documents: – Agency Agreement dated " "_________2019. Based on the above and guided by Art. 15, 309, 310, 380, 381, 151, 1101 Civil Code of the Russian Federation, Art. 131-132 Code of Civil Procedure of the Russian Federation,

WE ASK THE COURT:

1. To collect jointly and severally from Defendant-1 - Full Name 1 and Defendant-2 - Full Name 2 in favor of the Plaintiff in the amount of:

AMOUNT (amount in words) rubles – double deposit refund; AMOUNT (amount in words) rubles – compensation for moral damage; AMOUNT (amount in words) rubles – payment of legal expenses for drawing up a statement of claim; AMOUNT (amount in words) rubles – state duty.

Plaintiff _______________________

“___” ___________2019

When will the deposit be returned?

The deposit may be returned to the person who transferred it in two cases:

• the transaction was disrupted due to the fault of the person who received the cash tranche;
• the deal was disrupted due to reasons beyond the control of both parties.

In the latter case, the concept of force majeure is applied, due to which the parties were unable to fulfill their obligations. The so-called “force majeure” does not depend on the will of the participants and is not a manifestation of their intentions. Such a circumstance, for example, is the destruction of residential premises as a result of a natural disaster. If a deposit payment has been made for the apartment, it is transferred back to the buyer in a single amount.

For your information

Also, the money must be returned to the person who made the payment in situations where the opposite party voluntarily renounces its obligations specified in the text or changes the terms of the agreement. For example, by raising the price of an apartment, the seller violates the terms of the contract, which allows the buyer to terminate the preliminary contract. Since in this situation the refusal was made through the fault of the contractor or the seller, he is obliged to return the financial security in double amount.

How to return the deposit under a preliminary agreement?

If the seller does not even want to hear about the return of the deposit pre-trial, then the failed buyer will have to defend his rights in court. Judicial practice includes two approaches to considering such cases .

• The judge may recognize the deposit agreement as void. As a result, the amount contributed by the buyer will be equated to unjust enrichment of the seller (as in the case of an advance payment) and will be subject to return.
• The judge may recognize the deposit agreement as legal, that is, ensuring future obligations under the planned sale and purchase agreement. Then, according to the rules on deposits, the buyer will not be able to return the money.

Which approach will the court choose? Solving the question “Is it possible to return the deposit under a preliminary agreement? " will depend on a number of circumstances. The judge will literally take into account everything: from the conditions for signing the preliminary agreement to compliance with its deadlines. The buyer should know that the probability of winning is estimated at 50/50. Therefore, it is so important to pay maximum attention to studying the preliminary agreement proposed for signing.

Refund of deposit by receipt

A receipt for receipt of funds is one of the options for making an advance payment. The text must indicate that the money is transferred as a deposit for the execution of any agreement. The document must contain the following details:

• passport details of both parties;
• registration address;
• the item for which money is transferred (car, real estate, etc.);
• the exact cost of the item;
• the exact amount of transferred funds (in numerical and letter expressions);
• terms of conclusion and execution of intentions;
• signatures of counterparties.

Attention
If the legal form of drawing up and signing a receipt is observed, it is recognized as a full-fledged agreement and entails full legal liability of the parties in court. It is not necessary to indicate the penalties of the parties in the text, since the concept of “deposit” itself already provides for those for all participants.

Your expenses and payment for services already rendered are deducted from the prepayment.

It may turn out that before canceling the reservation the entrepreneur had already spent money on the client. For example, a salon master bought a wash-off polish for 300 ₽ because the client did not want a gel manicure. And the cafe bought skewers for canapés worth 500 rubles. In this case, the law protects the entrepreneur.

The client is obliged to pay the expenses that the entrepreneur has already incurred. Therefore, the advance payment will be returned minus such expenses. In our examples, the salon will return 1,700 ₽: 2,000 ₽ minus 300 ₽ for varnish, and the cafe will return 9,500 ₽: 10,000 ₽ minus 500 ₽ for skewers.

Sometimes the costs completely cover the advance payment. Then the return to the client will be zero. If, by the time you cancel catering, there are already semi-finished products worth 10,000 rubles in the cafe’s refrigerator, the prepayment may not be returned. True, the semi-finished products will have to be given to the company if they want.

The main thing is that the entrepreneur has receipts for expenses. And the receipts must confirm expenses for this very client. In such cases, it is better to discuss detailed technical specifications. For example, write down the catering menu in the specifications for the service contract. There are canapés, which means you need skewers. If the client goes to court, the entrepreneur will show the court the receipts for the skewers.

But you cannot deduct lost profits from the prepayment. This is the lost profit of the entrepreneur under Art. 15 Civil Code of the Russian Federation. The client and the canceled reservation have nothing to do with it.

A separate case is when a client refuses a service that has already begun. If the waiters fed people for one day, and then the company refused catering, it only pays for that day. Part of the service is part of the payment.

And one more thing - they keep the payment for part of the service only if the client has no complaints about the quality.

Under contract

When the parties sign a deposit agreement, it has the form of a preliminary agreement, which guarantees the conclusion of the main agreement (alienation of real estate, purchase and sale of a vehicle, etc.). To fully protect themselves, the parties must correctly compose the text and indicate:

• name of the document (deposit agreement);
• accurate passport data of counterparties;
• subject of the contract;
• legal action with the subject (purchase and sale, rent, performance of services, etc.);
• liability of the parties;
• conditions for the return of the deposit;
• signatures with transcript.

Additional information
Since a written contract is a detailed form, the parties can specify special conditions for the return of the deposit or indicate that the money must be returned on the grounds provided by law. The conclusion of an agreement does not prevent the parties from specifying special conditions: fines for non-fulfillment or penalties.

Agreement on termination of the contract and return of the advance payment

To ensure that after the termination of cooperation as a result of termination of the contract, neither its parties nor the tax authorities have any questions or discrepancies, it is necessary to draw up and sign an agreement defining the procedure for terminating the contract and returning the advance payment.

It requires:

• list the customer’s obligations to repay expenses incurred during preparation for the execution of the terms of the contract in the event that the previously listed advance does not cover them completely;
• determine the obligations of the contractor to return the unused advance or part thereof in the event that he has already spent part of the money in the course of fulfilling his duties;
• indicate (if necessary) the repayment of the parties' obligations or part thereof by offset on the basis of Art. 410 of the Civil Code of the Russian Federation, as well as determine the procedure for transferring to the customer the remaining part of the unpaid advance or reimbursing the contractor for unpaid expenses.

Actions in case of refusal to return the deposit

If the opposite party refuses to return the deposit, the participant who contributed the funds has the right to demand their return exclusively in court. Contacting the police or other authorities will most likely not bring the desired result. Cases regarding financial disputes between private individuals are heard by courts of general jurisdiction. You can file a claim only after the expiration of the date specified in the agreement or receipt.

For your information

After filing a lawsuit, the court will review the case and make a ruling. If the judge determines that the failure of the agreement was due to the fault of the person who received the preliminary payment or due to force majeure obstacles, then most likely a decision will be made to return the money. If the court determines that the transaction was disrupted due to the fault of the participant who transferred the funds, then the deposit will remain with the opposite party.

Refund of advance payment in court

If the parties terminated the contract, but were unable to independently determine the procedure for mutual settlements regarding the advance payment, the dispute will have to be resolved in court. To do this, the customer must perform the following sequence of actions:

1. Draw up a pre-trial claim and submit it to the counterparty. It requires:
   • list the requirements put forward and provide their justification;

   set reasonable deadlines for their implementation;

2. outline the consequences that the contractor will face if he refuses to return the advance, including the possibility of the customer going to court to demand the collection of unpaid funds.

It is worth preparing 2 copies of the document, one of which should be handed to the contractor, and the second, with the signature of the person who received the claim, kept as evidence of the fact of its transfer to the addressee or his representative.

3. If the contractor refuses to fulfill the requirements specified in the complaint or ignores them, go to court. The statement of claim must be sent to the court located at the location of the defendant. The document must clearly state the claims and provide the grounds for satisfying them. The claim should be accompanied by copies of the pre-trial claim sent to the debtor and his refusal to fulfill the stated requirements (if any).

Deposit when buying an apartment: is it refundable or not?

The deposit transferred as an advance payment during a real estate alienation transaction does not differ from contributions securing other contracts. If the parties enter into a deposit agreement or the money is transferred according to a receipt indicating the form of payment, then in the event of the buyer’s refusal, the money remains with the seller.

The seller's refusal to fulfill the contract obliges him to return the money in double amount. If the transaction fails due to force majeure (for example, the seller died), then only the transferred amount is returned.

Arbitrage practice

Judicial practice shows that a decision can be made in favor of both the defendant and the plaintiff.
It is important that both parties provide as much evidence as possible that their rights have been violated. The buyer appealed to the Krasnoyarsk court, demanding a double deposit from the seller on the basis that the purchase and sale agreement was not concluded due to the fault of the seller. The defendant did not inform the plaintiff that the apartment was encumbered and pledged to the bank. The buyer previously transferred 50,000 rubles to the seller’s account. as a deposit, committing to purchase the property within a specified period, but the transaction did not take place.

Decision No. 2-5985/2019 of November 29, 2021 of the Krasnoyarsk Court is based on the fact that in the extract from the Unified State Register of Real Estate, presented by the defendant, and dated the day before the date of the transaction, no encumbrances were indicated. Accordingly, nothing prevented the conclusion of the contract. The court ruled that the requirement to pay double the deposit does not comply with current legislation. In this case, the defendant was awarded to return the funds received from the buyer in full.

The Kolomna City Court of the Moscow Region received an application to collect from the seller of the apartment a deposit, interest for the use of other people's funds, compensation for moral damage and legal costs. The plaintiff transferred part of the cost of the apartment to the defendant as an advance payment. Subsequently, he refused to conclude the deal. A preliminary agreement was drawn up between the buyer and seller. The owner of the property refused to return part of the funds, arguing that they were a deposit.

Based on the study of the case materials, the court adopted Decision No. 2-2296/2019 2-2296/2019~M-2321/2019 M-2321/2019 dated November 27, 2019. According to the document, the defendant is obliged to return the money paid to him, since the agreement payment of the deposit was not concluded; accordingly, the funds are considered an advance. At the same time, the plaintiff was denied moral compensation.

Buying an apartment is always fraught with difficulties. The buyer can transfer an advance or deposit to the seller's account before the transaction is concluded. These concepts are different from a legal point of view. In the first case, the amount is returned in full if the deal is not concluded. The deposit remains with the seller in full in the event that the buyer refuses to sign the contract without compelling reasons. If the owner is the initiator of the cancellation of the transaction, then the second party can claim a double refund.

Is the deposit returned to the winner and loser of the auction?

Auction and competitive bidding is often accompanied by a preliminary deposit of funds as security for the intentions of the auction participant. According to Art. 448 of the Civil Code of the Russian Federation, the deposit payment is returned to the participant:

• in case of participation, but defeat in the auction;
• in case of auction cancellation.

Please note
: The refund period is 20 calendar days from the date of the auction or cancellation.

The funds contributed by the winner are taken into account as an advance payment for the subject of the auction. If the winner refuses to pay the full price, the deposit payment remains with the organizers.

When the deposit cannot be returned

It will be practically impossible to return the deposit transferred to the seller to fulfill obligations if this is specified in the contract. For example, if you ordered the assembly of a house kit from timber and they charged you for materials and transportation, and then you canceled the contract when the car was already on its way to you.

In this situation, the deposit is equal to the actual expenses incurred by the contractor. You can return it, but in both cases the amount will be approximately the same.

There are other controversial situations that are worth studying in detail.

When buying an apartment

If you buy an apartment on the secondary market, the provisions of the Civil Code of the Russian Federation do not apply - only the Civil Code of the Russian Federation applies. And this is where the deposit is quite appropriate, and if you refuse the deal (change your mind, find another option), the seller is not obliged to return it to you.

It’s another matter if the bank refused a mortgage. Then the seller is obliged to return the deposit to you in a single amount, because the transaction will not take place due to circumstances beyond the control of the parties.

At the car showroom

The provisions of the PPA apply to the purchase and sale of a car at a car dealership. The deposit must be returned to you, but they may require reimbursement of actual expenses incurred: for example, for delivery of the car to the dealer if it was delivered to order.

When refusing services without a contract

If you ordered a service but did not enter into an agreement, a contractual relationship still arises between you and the contractor. Under an oral agreement, the performer undertakes to provide you with a paid service, and you – to pay for it (Article 779 of the Civil Code of the Russian Federation).

Unilateral withdrawal from the contract is possible. In this case, you are obliged to compensate the contractor for the actual expenses incurred. If he refuses to fulfill his obligations, he will have to compensate for your losses associated with his refusal (Article 782 of the Civil Code of the Russian Federation).

Example. The girl signed up for a manicure, the master demanded an advance payment. She deposited the money, but two hours before the session her circumstances changed, which she informed the master about and asked for everything to be returned.

However, the master did not agree to return the money, justifying this by the fact that due to the client’s refusal, she missed out on her benefits.

In fact, according to the law, the situation looks different: the money received is considered unjust enrichment, and there is no loss of profit. The master probably has a waiting list of other clients who can come to the vacant window. In such a situation, he receives money twice: from the girl who canceled the session, and from another client who comes at her time.

In case of death of the buyer

If the buyer ordered a product or service by making an advance payment, in the event of death the money will have to be returned to the heirs - the advance payment is included in the inheritance estate (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of May 29, 2012 No. 9 “On judicial practice ..."). But they will be required to compensate for the costs incurred by the store in connection with the fulfillment of the terms of the contract.

If you cancel your trip

Everything is the same here: if tourists do not go on a tour package, the travel agency must return the deposit minus the expenses incurred. For example, for tickets, hotel payments, etc.

At the auction

If the auction does not take place, the deposit must be returned. It is also returned to individuals and legal entities who participated in the auction but did not win. With the winner, everything is different: the amount of the deposit paid by him is included in the fulfillment of obligations under the concluded agreement.

Nuances

The parties may refuse to fulfill the terms of the deposit agreement if the counterparty has changed the criteria for the purchase and sale. If the terms of the transaction are violated, the circumstances (the price is increased), the subject of the agreement has been changed (for example, the car being sold was involved in an accident), then either party may demand termination of the agreement and payment of its obligations by the counterparty.

Attention

To guarantee a refund, it is necessary to prove the guilt of the other party in disrupting the transaction. For example, if the seller increased the price of real estate or did not show up to sign the documents, then it is advisable to take care of evidence of the seller’s guilt - get a certificate from the registration department about not concluding the transaction, attract witnesses, etc.

Comments Showing 0 of 0

In what cases is it necessary

The deposit can be transferred and received only at the time of concluding an agreement that prescribes obligations for both parties, while one of them is obliged to pay the other a certain amount of money. The most common transactions with a similar clause are the purchase and sale of movable/immovable property.

If the parties to the contract have complete trust in each other, then such an amount will be an optional part when drawing up the contract.

In the Russian Federation, it is practiced to conclude large transactions with the payment of deposits, since each party to the transaction wants to have guarantees with legal force, and not simple agreements in words.

For example, when selling an apartment, the seller will want to enter into such an additional agreement in order to be sure that the buyer intends to purchase his property. The buyer can also demand it to be sure that the seller will not find a more advantageous option during the preparatory time of the transaction.

There are several options for transactions when deposits are made:

1. Lack of all the required amount of money on hand . In this case, the earnest money will mean for the seller a guarantee that the buyer will find the necessary finances within the time frame established in the agreement.
2. An incomplete package of documents for the object of sale from the owner . The deposit is paid for a period determined by the parties, which will be needed for the preparation and execution of all necessary documents.
3. To remove an encumbrance on the object of a transaction (for example, to secure a bank loan). In this case, the deposit funds will be the necessary amount for its withdrawal. In this case, it is advisable for the buyer to request from the seller a document confirming insurance that the declared amount is enough to withdraw the property from collateral. It is better if the signing of the agreement on the deposit and removal of the encumbrance is simultaneous, or there will be early repayment of the loan. The buyer will thus protect himself from such problems as the seller spending the amount of the deposit money, while the property will still be pledged.
4. Temporary impossibility of the presence of one of the parties to the transaction for various reasons - vacation, business trip, health problems, and so on. The deposited funds will guarantee the completion of the transaction when the absent party returns.