Real estate operations are not common in everyday life for people whose professional activities are not related to their purchase or sale. When compiling a deposit agreement, a person very often encounters many questions, the answers to which this article will help to find.
Definition and functions of a deposit agreement
Drawing up a deposit agreement, the buyer and seller pursue three goals, which are provided by the following functions:
- Financial, i.e. the deposit amount is included in the total transaction amount;
- Confirming, i.e. the deposit serves both the seller and the buyer as confirmation of the intention to complete the transaction;
- Securing the obligations undertaken.
Let us dwell on the third function. The deposit ensures the fulfillment of the obligations undertaken by both the seller and the buyer. In this case, only obligations specified in the contract and not fulfilled by any party under the contract are subject to security. The deposit is paid by the buyer, but at the same time he obliges the seller to fulfill all preliminary agreements. It is wrong to think that a deposit is beneficial only to the seller. The seller’s benefit in concluding the contract is that if the buyer does not comply with the terms of the contract, then the deposit amount remains with him in full. The benefit of the buyer is that if the seller has violated the preliminary agreements, then the money is given to the buyer in double size. It is for these reasons that the deposit agreement is beneficial to both parties to the transaction.
Legislation provides for a written deposit agreement with registration with a notary. In practice, a deposit agreement is drawn up in cases where the amount of the agreement is exceeded 100,000 rubles, as a rule, this is the purchase of cars or real estate. Although the deposit can serve as a guarantee of any transaction of sale. The size of the deposit is from 5 to 10% of the value of the contract; a common opinion on this issue is developed through negotiations between the two parties.
Is it possible to return a deposit?
The return of the deposit is possible only if there is a contract concluded in writing and registered with a notary. If a deposit is paid back for the apartment, the size of the deposit, the price of the apartment and the terms of the transaction must be specified in the contract.
The deposit for the apartment is always refundable if the deadlines for fulfillment of contractual obligations have not arrived or the fulfillment of the contract is impossible for a number of objective reasons, usually suitable for the definition of force majeure (death, natural disasters, etc.).
In all other cases, the deposit remains either with the seller or is given to the buyer in double size. If a peaceful solution to the issue is not possible, then a lawsuit should be filed with the judiciary. The preparation of the statement of claim should be preceded by the preparation of a claim against the party evading to fulfill the deposit agreement.
This stage is very important for enforcement proceedings. The claim should warn the evading party of your intention to go to court and offer to return the money within the agreed period.
If the other party to the contract does not respond to your requirements - file a lawsuit in court. All documents proving your legal position should be attached to the statement of claim. It should be remembered that the statement of claim is filed at the place of permanent registration of the second party to the case.
Real estate transactions are always fraught with risk, therefore, at its conclusion it is advisable to enlist the support of a lawyer who will deal with legal support. Lawyer services will be useful if you have to solve the problem through litigation.