Agreement on deposit when purchasing an apartment (sample) in 2021

Preparing documents for the sale of real estate may take the seller a significant amount of time, and there is no guarantee that during this period he will not find a more profitable buyer. If the documents for selling the apartment are not prepared, the purchase will have to be postponed. To convince the seller of the seriousness of his intentions and to suspend the sale of the selected apartment, as well as to avoid risks with price changes at the last stage of the transaction, it is necessary to issue a deposit for the apartment. Despite the fact that a deposit is a widely used practice, not even all realtors understand it correctly and are often confused with an advance or a deposit. Therefore, before you apply for a deposit when purchasing an apartment, you must carefully study all the conditions.

What is a deposit and what is its essence?

The deposit is a sum of money that is transferred to the seller of the apartment as an advance payment. In this way, the buyer expresses his intention to purchase residential premises, and the seller undertakes not to sell it to others.

The deposit is transferred before the conclusion of the main purchase and sale agreement, and its amount is taken into account later when paying the full cost of the apartment (Article 380 of the Civil Code of the Russian Federation).

The parties can confirm the agreement on the purchase and sale of an apartment with a deposit in the following cases:

the seller needs time to prepare documents in relation to the apartment being sold;
the buyer does not have enough funds and takes out a mortgage loan;
the seller needs to resolve the issue of removing the encumbrance or paying the debt on utility bills.

The agreement between the seller and the buyer on the transfer of the deposit is drawn up regardless of the amount of funds to be paid.

The difference between a deposit and an advance

When making purchase and sale transactions, it is possible to conclude an advance agreement. An advance payment is also made as an advance payment, but unlike a deposit, it does not guarantee the completion of the transaction. If for some reason the transaction does not take place, the advance must be returned to the buyer, regardless of whose initiative this happened.

It is not necessary to formalize the transfer of the advance by contract or agreement; it is enough to write a receipt for receipt of the advance.

The difference between a deposit and a pledge

A deposit, unlike a deposit, is not a payment. When pledging, certain restrictions are imposed on the rights of the mortgagor in relation to his property, which guarantees the fulfillment of his obligations under the contract. The subject of the pledge can be movable and immovable property.

The transfer of property as collateral must be formalized by an agreement (Article 339 of the Civil Code of the Russian Federation) and, if necessary, such an agreement can be notarized. As a rule, a collateral agreement is used when applying to a bank to apply for a loan and is a guarantee for the bank to return the borrowed funds.

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To summarize, we note the main pros and cons of a deposit as a way to ensure the fulfillment of obligations.

Pros:

the deposit is simple to complete: it does not require compliance with complex procedures, for example, it does not require notarization or state registration;
the deposit is easily transformed into payment under the contract;
There are no third parties involved in providing the deposit (as with a surety or bank guarantee). This means that entrepreneurs depend only on themselves;
many essential parameters of the deposit (size, terms of transfer, term and form of return, etc.) are regulated not by law, but by agreement of the parties, which gives a certain freedom of action and the opportunity to take into account the interests of businessmen as much as possible.

Minuses:

the deposit cannot effectively ensure the fulfillment of the obligation under the contract if its size is small;
the legality of the deposit issued before the conclusion of the contract is not entirely clear;
the deposit can only be issued in cash, which limits the possibilities of entrepreneurs.

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Features of registration of a deposit depending on the conditions

Depending on the terms of the transaction, payment of the deposit to the seller may have its own characteristics:

Multiple owners - all of them must be included in the deposit agreement and sign it. Receipt of a deposit by one of the owners may lead to further claims from other owners.
With a mortgage encumbrance - if it is necessary to repay the mortgage debt with the seller’s money, the deposit is drawn up based on this amount.
Under a share participation agreement in construction, the party accepting the deposit will be a legal entity.
If a representative acts on behalf of the seller, the text of the power of attorney must indicate the authority to receive the deposit instead of the owner. Otherwise, only the owner has the right to accept the deposit.

Registration of a deposit when concluding an agreement for the assignment of the right of claim, as well as a purchase and sale agreement using maternity capital funds, is carried out according to general rules.

Advance agreement for purchasing an apartment

What is the difference between an advance and a deposit when buying an apartment?

How to properly draw up a deposit agreement when buying an apartment?

The transfer of the deposit to the seller can only be reflected in the preliminary purchase and sale agreement or formalized in a separate agreement. Both of these documents will have legal force from the moment they are signed.

The agreement must necessarily reflect the amount of the deposit as essential conditions and indicate the obligations that are secured by it. Money can be transferred directly at the time of signing the agreement or on the date specified in it.

The agreement must be drawn up according to the number of participants in the transaction and signed by each of them or their representative by proxy.

Agreement form

The requirement to formalize the deposit agreement in writing is regulated in Article 380 of the Civil Code of the Russian Federation. It is not necessary to have it certified by a notary, but this can be done if the parties to the transaction wish. The legal force of the agreement will be the same, however, for the buyer, a certified agreement will be a guarantee that his interests are protected.

The cost of notary services when certifying contracts related to the alienation of real estate depends on the amount of the transaction (up to 1 million rubles - 3000 +0.4%, from 1 to 10 million rubles - 7000+0.2%, over 10 million rubles – 25000+1%).

Contents and sample

There is no legally approved sample deposit agreement, so in order to protect yourself from any possible risks, you need to take the contents of the document seriously.

The agreement must include the following:

date and place of conclusion of the agreement;
information about the parties to the transaction (full name, passport details, place of residence and registration);
information about the subject of the transaction (address of the residential premises, total cost, area, number of rooms, cadastral number);
the amount of the deposit transferred (in numerical and letter terms) and the legal purpose of the payment (it should be clear from the text of the document that this is a deposit, and not an advance);
deadline and procedure for transferring the deposit (date, method of transferring money);
the period by which the main contract must be concluded (if the period is not specified, then according to the general rules the transaction must be concluded within a year);
actions of the parties before concluding the main contract (for example, preparation of documents by the seller, registration of a mortgage by the buyer);
rights and obligations of the parties;
circumstances and procedure for returning funds paid as a deposit, including for reasons beyond the control of the parties (for example, refusal of authorities and organizations to issue the necessary documents and permits);
number of copies of the agreement according to the number of participants;
the moment of entry into force;
signatures of all parties to the transaction.

By agreement between the parties, additional clauses may be included in the agreement, but they must directly relate to the subject of the agreement being concluded.

Sample agreement on deposit when purchasing an apartment:

Is it necessary to make an advance payment when buying an apartment?

In the case when a transaction for the purchase and sale of secondary real estate takes place between close relatives and good friends, it is not at all necessary to make an advance payment for the apartment; you can completely do without prepayment for the apartment and take their word for it.

In other cases, an advance payment is most likely inevitable; it is unlikely that you will be able to break the foundations of business turnover accepted in the secondary market, however, it is worth noting that cases of optional payment of an advance payment for an apartment are not isolated...

Transfer of deposit

After signing the agreement, the buyer can transfer money to the seller.
If funds are transferred in cash, the seller must make sure that the amount corresponds to that specified in the agreement by recalculating them in the presence of witnesses. A bank transfer can be easily confirmed with a receipt or account statement. The place where the money is transferred can be the office of a real estate agency, a notary's office, or the apartment being sold.

Amount and term of deposit

As a rule, the amount of the deposit is determined by agreement of the parties and is not tied to any percentage of the transaction amount. Typically this amount ranges from 50 to 100 thousand rubles, except in cases where the deposit ensures the repayment of the seller's mortgage debt.

When setting the amount of the deposit, the parties proceed from their interests. It must be sufficient so that its loss for the seller or buyer in the event of refusal of one of the parties from the transaction becomes significant. This ensures that the buyer does not refuse the transaction, having found a more suitable option in the process of completing it. At the same time, the seller will not want to sell the apartment to another person, realizing that returning the amount in double amount calls into question his benefit.

The duration of the deposit agreement will depend on what actions the parties need to take before signing the main agreement. The period is discussed by the parties in advance and taken into account with a reserve of time, or the agreement may stipulate the possibility of extending the period if necessary. You can complete a transaction on any day before the deadline specified in the agreement.

Transfer receipt

The fact of transfer of the deposit to the seller can be confirmed by a receipt for receipt of funds. Drawing up such a document is not mandatory, but for the buyer this will be a guarantee that the seller will not be able to deny the fact that he has received funds.

It is recommended that the receipt be drawn up by the seller in his own hand, indicating the following information:

where and when compiled;
data of the parties to the transaction;
the amount transferred as a deposit;
purpose of the transferred amount;
signatures and transcripts of participants' signatures.

The buyer must keep the receipt, as in the event of litigation it will serve as evidence of the actual transfer of funds.

Sample receipt for receiving a deposit when purchasing an apartment:

Are there any guarantees? Do I need a receipt?

In addition to the deposit agreement, you need to draw up a receipt for receipt of funds. It will confirm that the amount of money has been received. A receipt is issued when the deposit is transferred in cash.

The receipt must be written by the seller in his own hand using a ballpoint pen.
This is necessary so that in case of problems, a handwriting examination can establish the identity of the writer. If the receipt is printed from a computer, have it certified by a notary. Make a receipt at the time of transfer of the deposit amount. It is best to do this in front of witnesses from the buyer. Moreover, these should be strangers, and not relatives or friends. In the receipt, call the money you receive a deposit, and not something else.

Write a receipt in free form and indicate in it:

the name of the document, as well as the number and date of the agreement to which it relates;
date of document preparation;
Full names of the parties, their full passport details and places of residence;
in numbers and in words the amount of the deposit;
brief characteristics of the property;
signatures of the parties with transcripts.

If there are several owners of the apartment, then each of them writes a receipt to avoid possible claims in the future. The receipts must have the same content, only the amount of the deposit is indicated in proportion to the shares of property. One of the parents or guardian acts for the minor owner.

To ensure financial security, have the deposit agreement and the receipt certified by a notary in front of witnesses. Thus, these documents will act as proof that the seller received the agreed upon amount of the deposit. If the money was transferred by bank transfer, a bank statement is considered proof of payment.

If the case goes to court, and the deposit was filled out incorrectly, the amount paid will be considered an advance. If you have a receipt, you can count on a refund, but we are talking only about the amount indicated in the receipt, without doubling.

sample receipt in .doc format (Word)

Termination of the deposit agreement

Until the main agreement is signed and registered in Rosreestr, the deposit agreement may be terminated at the initiative of either party. The buyer usually insists on termination if the following circumstances exist:

if significant deficiencies are found in the residential premises that cannot be eliminated and the buyer was not previously aware of them;
the characteristics of the housing that is transferred to the buyer differ significantly from those initially stated by the seller;
the seller did not prepare the necessary documents.

The seller and buyer may change their minds about the transaction, but they must be aware of the legal consequences of their actions.

In what case can the deposit be returned?

To avoid disputes upon termination of the agreement, it is better to reflect the circumstances and conditions for the return of paid funds in the text of such an agreement. Article 381 of the Civil Code of the Russian Federation provides for a standard procedure for returns:

the transaction did not take place due to the fault of the seller (refusal or guilty actions) - the amount paid is returned in double amount;
the buyer’s actions caused the deal to fail – the amount of the deposit remains with the seller;
mutual decision of the parties to terminate the transaction - the transferred amount is returned to the buyer;
unforeseen circumstances - in this case the deposit is also returned to the buyer.

Further developments will depend on the position of the second party - either the deposit amount will be returned (this action also needs to be confirmed with a receipt), or the issue will be resolved in court.

Refund by agreement

Refund of funds by mutual agreement is the best option for the parties (Article 450 of the Civil Code of the Russian Federation). In this case, the buyer does not lose his money and the parties do not waste time on litigation. However, in practice, sellers most often violate their obligations and do not want to return double the amount of the deposit.

Judicially

If it was not possible to return the funds by agreement of the parties, then it is necessary to try to resolve the problem pre-trial. To do this, the initiator of termination of the agreement formalizes his intention in the form of a written demand and sends it to the other party to the transaction.

In addition to basic information about the agreement that is subject to termination, the request must indicate the reasons for which such a need arose and the immediate request for termination and return of funds.

If a party evades the requirements, the dispute can only be resolved in court. Disputes in which the amount of the claim is less than 50 thousand rubles. considered by the world court. If the amount is higher, you need to go to the district court. The burden of proving that a party has failed to fulfill any obligations under the contract will lie with the plaintiff.

Sample statement of claim:

Deposit when buying an apartment, or How to conclude the deal correctly