During the purchase of an apartment, a preliminary contract is often drawn up. It contains the intention of the parties to complete the main transaction. Usually it is formed if one participant in the process for various reasons cannot sign the main agreement. According to the Civil Code of the Russian Federation, a preliminary contract is legally binding only if it is properly drafted. Therefore, often experienced lawyers are involved in this process, who study the contents of the contract, and also make certain adjustments to it if necessary.
The concept of preliminary agreement
According to Art. 429 of the Civil Code of the Russian Federation, a preliminary contract for the sale of housing is an official document drawn up and signed by two parties to the transaction. Its structure completely repeats the content of the main contract, but it is not registered with the Rosreestr or with a notary public.
The contract includes all conditions for the transaction. Additionally, the periods during which the parties are required to enter into a transaction are given.
Why is it compiled?
According to the Civil Code of the Russian Federation, a preliminary contract for the sale of an apartment is drawn up for various reasons. This is most often required in the following situations:
- for various reasons, the buyer at the time of the conclusion of the agreement does not have the necessary amount needed to purchase real estate, for example, he is waiting for his apartment to be sold or he will receive the money by inheritance;
- housing is bought with a mortgage, therefore, before signing the main contract, representatives of the selected bank should evaluate the tenant, as it acts as a security, so the parties will have to wait for the decision of this institution;
- the seller, for various reasons, does not have any important documents for the apartment, so it takes some time to restore them;
- typos or errors in official documents are revealed.
To prevent the deal from breaking, a preliminary agreement is drawn up. It spells out the consequences for any participant who refuses to sign the main document. Often in this contract the sizes of the forfeits are indicated or the deposit is transferred at all.
Types of contract
According to Art. 429 of the Civil Code of the Russian Federation a preliminary contract may be presented in several versions. These include:
- With a deposit or advance. In this case, the amount that is actually transferred to the seller is prescribed. If a deposit is used, it will not be returned if the buyer refuses to sign the contract. If the seller is the culprit of the refusal of the transaction, then he returns a double deposit size. When using an advance, the amount of money is returned to the buyer, regardless of who exactly refused the transaction.
- From the developer. In another way, such an agreement is called PDDU. But this document does not have legal force, and with its help even through the court it will not be possible to bring the violator to justice. Therefore, such a contract is usually offered only by fraudsters who want to use gray schemes for various reasons.
- When applying for a mortgage. Most often, according to the Civil Code of the Russian Federation, a preliminary contract is drawn up precisely because the buyer needs a loan amount to buy real estate. In this case, before signing the main contract, you will have to obtain approval for the transaction from the selected bank, which will evaluate the condition and price of the selected object. But even the presence of a preliminary contract does not always guarantee the conclusion of the main transaction.This is due to the fact that if the buyer does not receive approval from the bank, then he will have to start searching for a more suitable option.
- When buying through a real estate agency. Under such conditions, a tripartite preliminary contract is drawn up, since it includes the obligations of an employee of this organization. The pledge can be transferred directly to the agency specialist, therefore it is he who acts as the guarantor of the main transaction.
Each variety has its own characteristics and nuances. Before compiling the documentation should study the provisions of Art. 429 of the Civil Code of the Russian Federation with comments. A preliminary contract only with competent formation has legal force.
Compilation rules
During the formation of this document, you must follow some mandatory rules. These include:
- simple writing is used;
- It is allowed to enter information using a computer or manually;
- you should not use the oral agreement, since it is likely that the parties to the transaction will not treat the previously agreed conditions with all seriousness;
- no need to apply to a notary for certification of a document.
If the parties to the transaction do not know how the preliminary agreement is drawn up correctly, then they can turn to a lawyer for help.
What documents are required?
To draw up a preliminary agreement, you need to prepare certain documentation. It is from her that information is brought into this document. These include the following papers:
- passports of participants in the transaction;
- cadastral documentation for housing;
- technical passport for the apartment;
- extract from the USRN, confirming that the object is being sold by the direct owner, and not by a fraudster;
- extract from the house book containing information about the persons registered in the apartment.
Using the above documentation, not only a contract is drawn up, but the legitimacy of the transaction is also confirmed. According to 429 Art. The Civil Code of the Russian Federation a preliminary contract should contain only relevant and reliable information, otherwise it will be easily invalidated by a court decision.
What information is included?
Typically, this agreement is drafted by the direct participants in the transaction, but they can turn to a lawyer for help. According to Art. 429 of the Civil Code of the Russian Federation, a preliminary contract necessarily includes the following information:
- deposit or advance amount;
- cost of housing;
- rules for the transfer of real estate;
- the period when the main contract is to be signed;
- the conditions under which the apartment will be re-registered by the buyer;
- persons registered or living in housing are indicated;
- The subject of the transaction represented by the property is described;
- rights and obligations of each site.
Sometimes a clause on possible situations is included in this document, upon the occurrence of which it is possible to terminate the agreement. If this information is not available, then under article 429 of the Civil Code of the Russian Federation, a preliminary contract can only be terminated in court or by drawing up a peace agreement.
Registration Rules
This agreement may not be registered with Rosreestr. According to the Civil Code of the Russian Federation, the preliminary contract is intended only to confirm the advance payment or deposit, and also confirms the intention of the parties to conclude the main contract.
Additionally, you do not need to contact a notary to certify the documentation. But this specialist can make sure that the contract is drawn up correctly.
What to look for?
Under article 429 of the Civil Code of the Russian Federation, a preliminary contract will be of value only provided that all the necessary conditions and clauses are entered into it. Therefore, when forming this documentation, you should pay attention to the following points:
- necessarily include some important information, for example, information about the subject of the contract, since otherwise it will not be possible to identify the apartment, which is acquired on the basis of this agreement;
- a document is signed by both parties to the transaction;
- it is not allowed for any party to receive more benefits from the document;
- in order to protect themselves from fraud, passport data of both participants are certainly included in the agreement;
- It is important to verify all the information entered on the basis of available official documents;
- you should make sure that the property is being sold by an adult owner, and other citizens do not apply for an apartment.
Before signing the agreement, all unauthorized persons must be discharged from the apartment.
Validity
According to the Civil Code of the Russian Federation, the preliminary contract does not lose its significance until the main contract has been signed, which consists in concluding a transaction for the sale of an apartment. The term is usually stated directly in the text of this agreement.
If, for a variety of reasons, a transaction does not take place in a specified period of time, the preliminary agreement loses its legal force. In this case, the deposit is not returned to the buyer, if the main contract was not concluded through his fault. The seller can even go to court to force the second party to complete the transaction.
The nuances of termination
According to the Civil Code of the Russian Federation, a preliminary contract for the sale of real estate can be terminated ahead of schedule if a party has violated its main provisions. Additionally, the process is performed if there is evidence that pressure was placed on the participant in the transaction, and it can be physical or emotional.
The agreement is recognized as invalid if one of the participants is a minor citizen or legally incompetent person.
Conclusion
A preliminary contract is often drawn up between two parties to a transaction. It contains information about the intentions of citizens in the future to conclude an agreement on the transfer of ownership of the apartment from the seller to the buyer. Some mandatory data must be included in it so that the document has legal force.
Each party to the transaction must be aware of the negative consequences of terminating this agreement. Negative moments arise if a deposit is written in the text.
