[DOC] Download the Deposit Agreement (preliminary agreement for the purchase and sale of real estate)

Parties to the Deposit Agreement (preliminary agreement for the purchase and sale of real estate):

Seller is an individual or legal entity who owns real estate under the right of individual (separate) ownership, and which he undertakes to transfer into ownership to another party (buyer) in the future.

Buyer is an individual or legal entity who undertakes to accept real estate in the future and pay for it the price specified in the contract. At the same time, in relation to foreigners (individuals who are not citizens of the Republic of Kazakhstan and who have evidence of their citizenship of another state), the law establishes that:

Only foreigners permanently residing in the Republic of Kazakhstan (having a residence permit in the Republic of Kazakhstan) can own real estate in the Republic of Kazakhstan.

if the Buyer's spouse is a foreign citizen, then the Buyer can purchase real estate only if:

whether the Buyer’s spouse has a residence permit in the Republic of Kazakhstan;

if the marriage contract between the spouses establishes a regime of separate property.

Witnesses, notarization

If you draw up a receipt for the deposit for an apartment correctly, then, after signature, it receives sufficient legal force to act as evidence in court. This raises the question: is it necessary to involve witnesses in the procedure or contact notary offices for certification?

None of these procedures are mandatory. But if the buyer wants to play it safe, he can either attract witnesses or contact a notary.

Attracting witnesses is an option that does not require material costs and is almost always resorted to in this transaction. Although nominally the testimony of witnesses in court (if the case comes to it) does not play a decisive role, they can affect the overall course of the case and the verdict.

The following may act as witnesses when drawing up a receipt for the deposit for an apartment:

spouses/children of the parties;
realtors;
co-owners of the apartment;
other interested parties.

Certification by a notary is considered by many to be a more reliable option, but this procedure will entail material costs that will have to be covered by one of the parties to the agreement (or the amount will be divided between them).

Essential terms of the Deposit Agreement (preliminary agreement for the purchase and sale of real estate)

(conditions without which, by virtue of legal requirements, the Deposit Agreement is considered not concluded):

compliance with the established form of the contract, i.e. its conclusion in writing, its signing by the parties or their representatives and, as a rule, if the transaction is carried out by legal entities, also sealed, if this person, in accordance with the legislation of the Republic of Kazakhstan, must have a seal. The written form is established for contracts concluded:

in the process of entrepreneurial activity, regardless of whether such activity is carried out by both parties to the agreement or only one of them;

for an amount over one hundred calculated indicators;

condition on the subject of the real estate purchase and sale agreement, i.e. about what real estate is subject to transfer in the future on paid terms, indicating its identification characteristics (information about real estate, including address, address registration code (if any), type of real estate, cadastral number, form of ownership, number of components, category of land , divisibility, purpose, number of floors, area (total, residential, useful);

price, procedure, terms and amounts of payments, if under the Agreement for the purchase and sale of real estate (Deposit Agreement), which the parties will conclude in the future, payment for real estate will be made on credit with the condition of payment in installments;

information about the presence or absence of rights of third parties to real estate (encumbrances and (or) restrictions) and, if there are rights of third parties, execution of the necessary consents, according to the forms provided;

agreement of the parties to recognize the concluded agreement as a deposit agreement.

Earnest money agreement - document structure

Since the receipt is drawn up in any form, there are no clear rules for its preparation, but in order for the document to acquire legal significance, all important information must be written down in it.

Receipt structure:

preamble;
details of the parties, their signatures;
date and place of conclusion of the document;
the subject of the agreement, which indicates that a pledge is being drawn up, not an advance;
exact amount in numbers, in words;
a detailed description of the process of transferring funds - who, to whom, when, where, for what;
liability of the parties if the transaction does not take place;
duration of the agreement, possibility of termination.

A correctly drawn up document allows you to quickly resolve a controversial situation, return legitimate money with compensation for damages for wasted time.

Usual conditions Deposit agreement (preliminary agreement for the purchase and sale of real estate)

(conditions that the parties, in order to prevent possible risks and disagreements, by virtue of the right granted by law and (or) business customs, independently determine in the preliminary agreement for the purchase and sale of real estate (Deposit Agreement):

the period during which the parties undertake to conclude a real estate purchase and sale agreement (hereinafter referred to as the Main Agreement);

terms and amounts of payments, including payment of the deposit:

the amount of money issued by the Buyer against payments due from him under the Main Agreement to the Seller and to ensure the conclusion and execution of the Main Agreement. In this case, the deposit remains with the Seller if the Buyer is responsible for non-conclusion and non-fulfillment of the Main Agreement, and if the Seller is responsible, then he will be obliged to pay the Buyer a double amount of the deposit. If the parties by agreement terminate the Agreement of Intent for the purchase and sale of real estate or the impossibility of concluding and executing the Main Agreement occurs without the fault of the parties, the deposit must be returned to the Buyer;

the terms of the Main Agreement, which the parties agreed to as essential in the Preliminary Agreement for the Purchase and Sale of Real Estate (Deposit Agreement), in particular:

conditions that detail the characteristics and description of both real estate and movable property, if a premises equipped with movable property (for example, with furniture, appliances, etc.) is transferred, which allows the requirements for the quality, quantity and range of alienated property to be agreed upon by contract ;

for individuals - guarantees of the parties about the absence of marital relations or registration of the necessary consents of the spouse for the disposal of the common property of the spouses, according to the submitted forms;

the purpose of acquiring real estate, i.e. for what purposes does the Buyer acquire real estate;

the procedure for acceptance and transfer of real estate, the period and moment of fulfillment of the seller’s obligation to transfer real estate;

liability of the parties;

settlement of disputes;

procedure for changing or terminating the contract;

conditions allowing the conclusion of the Basic Agreement either in simple written form, or the decision of the parties to notarize the Basic Agreement, and depending on this, different procedures for state registration of property rights:

one of the parties, if the parties notarize the agreement;

by both parties, if the parties enter into a simple written agreement.

other conditions that the parties, by virtue of the law granted by law and (or) business customs and (or) agreement of the parties, can independently determine in the Main Agreement;

conditions allowing to conclude a Deposit Agreement (preliminary agreement for the purchase and sale of real estate) either in simple written form, or the decision of the parties to notarize it.

If a party to the contract is an individual, then by virtue of the Law “On Personal Data and Their Protection” it is necessary to request from this party “Consent to the collection and processing of personal data”.

Number of required copies

It is important not to confuse a receipt for a deposit for an apartment with a similar agreement. The latter is compiled according to the number of participants in the transaction and witnesses. Whereas the receipt, in any case, is issued in a single copy.

Only in this case can it serve as insurance for the buyer who has transferred the deposit (and, as a result, for whom the risk is higher).

It is also prohibited to make copies of the receipt and, moreover, to have them certified by a notary. No serious notary office will undertake this.

Features for government procurement

In legal relations between the customer and the supplier within the framework of public procurement, they demand the return of money, as a rule, in two cases:

an advance payment was made, but the supplier did not begin to fulfill its obligations;
paid the excess amount.

Here is an example of a claim for a refund of funds (advance payments):

The requirement to return money for low-quality goods or improper work (services) in procurement is irrelevant, because The customer checks the conscientious execution, accepts it and only then pays.

ConsultantPlus experts discussed how to ensure the return of advance payments and other practical issues. Use these instructions for free.

As for the legal relationship between the manufacturer and the intermediary, the standard rules for preparing a claim apply.

Why file a claim for a refund?

If the terms of the contract are violated, the organization is obliged to send a corresponding notification to the partner. To do this, you will need to draw up a letter of claim for the return of funds, a sample of which you can download below. If the parties cannot agree, it will be quite difficult to prove in court that the claim procedure was followed.

Please note that compliance with the claim procedure is required if a company requires funds from a counterparty. For example, the return of an advance or payment for goods, work or services, the demand for penalties, penalties, fines, the requirement to pay the costs of eliminating deficiencies, etc.

The main purpose of the document is to notify the business partner of disagreement with the current state of affairs, demand that all identified shortcomings be eliminated and offer to resolve the dispute peacefully, that is, in a pre-trial manner.

Are there any risks of transferring money against a receipt?

A receipt for the deposit for the apartment is the buyer’s main insurance at this stage. The seller does not particularly lose anything from the procedure, since if the opposite party refuses to purchase the living space before a certain date, the deposit remains with the new owner.

Therefore, there are no risks associated directly with the receipt. The only thing that the buyer must remember is that it is important to carefully read the text of the document. If it is drawn up entirely by hand and there are corrections somewhere or the information is entered in completely illegible handwriting, the buyer has the right to require the seller to write the receipt again.

General rules for document preparation

There is no unified form of template according to which a pre-trial claim for the return of funds (sample, to put it simply) is drawn up. However, when preparing a letter of claim, you must follow the general rules of business correspondence. Let's note the key points:

Draw up the document on company letterhead, if available.
Compose the letter in two copies: give one to the counterparty, and keep the second for yourself. Remember that on the second copy you should put a mark on delivery to the partner (date of receipt, position and full name of the person who received the document, his signature).
Only the manager or a legal representative authorized to carry out such transactions can sign a request for the return of funds. For example, an employee authorized to sign financial documents under a power of attorney.

The document can be sent by mail. In this case, please send by registered mail. Be sure to fill out an inventory of investments. In court, it will be considered confirmation that you have complied with all the rules of the claim procedure.

Where to apply

Disputes between legal entities and individual entrepreneurs are considered by arbitration; disputes between “physicists” are considered by a court of general jurisdiction (magistrates, city, district). A claim is filed with the magistrate for the recovery of funds if the cost of the claim is no more than 50,000 rubles. In case of a dispute involving consumers - if the claim price does not exceed 100,000 rubles (Article 23 of the Code of Civil Procedure of the Russian Federation). According to the general rule set out in Art. 28 of the Code of Civil Procedure of the Russian Federation, the claim is filed at the place of residence of the defendant (location of the legal entity or its branch). There are exceptions: for example, consumers have the right to go to court at their place of residence. The court considers claims on a territorial basis; the territory of their powers is easy to understand from the name (Kurgan City Court considers cases based on claims presented to residents of Kurgan).