Contract of sale of property: what to look for





19.09.2010 04:45
Tons of documents, contracts have to read (ideally close to the end of) buyers and sellers of housing. And, of course, the intricacies of legal terms often hide a very insidious paragraphs that are very difficult to trace in such volumes monotonous text that says Prostobank Consulting.

Notarial contract of deposit
Contract prior to the direct sale and purchase of housing, there are three basic types - the exclusive service contract between the real estate agent (agency) and the seller, the contract of the same type between the realtor and the buyer, and finally, the so-called contract of deposit between the seller and buyer.

Contract deposit, in turn, is divided into two main varieties - notarized and "private." In the case of notarization note hat the contract will not include the word "deposit" - because actually, in the terminology of the legislation, it would be "poperedniy dogovir" regulated by Article 635 of the Civil Code (the word "deposit" under the law simply means part of the debt which the debtor gives the creditor at the expense of obligations to him, articles HA 570-571).

Secondly, it is worth remembering that when notarization buyer must pay the state a fee of 1% of the amount of the deposit (for example, deposit $ 5000 fee is $ 50). In this case, fiscal agent for the collection and payment of state taxes is a lawyer. Of course, the notary will also charge for their services - at a rate of 800-1000 hryvnia.

In general, it is worth saying that only sworn preliminary agreement will give the participants a guarantee and a thorough inspection (notary) of all necessary documents, in which case, the guarantee of a court of such an instrument to be executed.

Private contract deposit
As far as the contract deposit out on the form of real estate agencies or even in text-receipts on a clean sheet, then such a treaty is, as lawyers say, "poluzakonnym", compiled by other realtors "through the stump-deck" - and at worst far not unequivocally be interpreted by the judiciary.

Nevertheless, Realtors with more than a decade of experience constitute the contract of deposit is quite competently. And if you fully trust the realtor, it makes sense to save on notary and state fees by issuing a "private" contract of deposit. In this case, you should pay attention to these nuances.

In nenotarialnom contract deposit in the first paragraph should indicate that the private agreement on his part agreed to equate to a preliminary agreement described in article 635 CC. Otherwise, items about the loss of deposit or refund twice the amount will not be until the end of the legal and, for example, the court will accept their worthless (at least on grounds of "being forced to deal on extremely unfavorable conditions").

Of course, the currency of the deposit, even in a private contract must be specified torque, as documented, negotiated a mutual transfer of currency without a license for foreign currency transactions on both sides of the act is illegal, and if you hit this information to state bodies, it can strike and the participants of the transaction, deposit, and for real estate agencies.

By the way, the notary, of course, another option for pre-contract and will not offer. However, issues of exchange rate, it is usually in the contract (and notarized, and private) states that the parties agree that they treat the deposit amount in UAH to a certain amount of currency (the latter in reality and is transmitted by the buyer to the seller).

Currency exchange rates often elected natsbankovsky on the day the treaty, but in the days of rapid inflation may be agreed by the parties, selected, and any rate - the main thing that the "source" of the course was also reflected in the point of equating the amount of UAH to the amount of currency.

Buyer in a "private" contract of the deposit should be paid attention to the indication of the presence / absence of children in the sale of apartments. It is "a form three", ie the state a certificate of registered citizens in the apartment, the seller will take shelter after the contract of deposit (certificate valid for two weeks, its validity must come to an agreement selling the apartment and the deposit is usually taken for longer than two weeks) .

And it means that the availability of prescription children must be specifically reflected in the contract of deposit. The reason is simple: if there are children in the sale of apartments State Board of Trustees monitors so as not to have worsened their living conditions, but malopredskazuemaya for the duration of the local board of trustees may disrupt short period of time specified in the contract of deposit.

Also in the "private treaty" earnest money should be "named names" all force majeure, which will lead to cancellation without penalty (loss of the deposit by the buyer or seller to refund twice the amount).

The natural and manmade disasters, which are both under the law a reason for termination of contracts without penalties, it makes sense to add as legislative changes that will make the purchase and sale of housing by the end of the contract term deposit disadvantageous deal for one of its members (for example, if stamp duty on the seller's apartment, or pay to the Pension Fund will be the buyers of flats are not 1% and 5%).

But "the real estate market changes," inscribed in a force majeure, there is a catch and malicious maneuver - no precise criterion to fix that situation make a difference or not, which means that an unscrupulous party to a treaty can suddenly terminate the contract on any given day.

In addition, if two or more documents on the property - for example, the couple owned the apartment together and they have two nearly identical sales contract (inheritance, exchange, gift, an act of privatization) - in a contract of deposit must be listed on the package of documents sell the property: in order to avoid the actions of one co-owner of contrary views of others. And even more so, shall be the signature of the agreement of the spouses of seller and buyer with the actions of their spouses in the contract the deposit is associated with this property.

And finally, the ideal so-called (conditionally) the deposit contract is concluded between two physical persons - buyers and sellers of housing - that is, the realtor or agency in such contract does not mention (realtors conclude with the parties to the treaty deposit separate contract). However, other agencies, formulated a tripartite agreement of the deposit, including in the treaty itself Realtor.

In this tripartite agreement the deposit is not anything illegal - just in case extra will carefully compare the contract deposit and separate two agreements between the realtor and the two parties to the contract of deposit (to items relating to a realtor in the first and the last two documents do not contradict each other). And, of course, a tripartite agreement involving two natural persons and legal entities of one (the realtor) necessarily implies a wet round seal and full details of this legal entity.

Exclusive service contract
The same point on the wet print and details of the realtor's important to check and in the treaties between the realtor and seller (the realtor and the buyer).

In addition to servicing agreement seller realtor must be valid - otherwise you will seal it with his signature something like a perpetual contract for mandatory services according to a realtor before the end of your life. Validity, for your (seller) benefits should not exceed three to four months - about as often the market prices change is already noticeable, and specified in the contract with a realtor minimum price may be too much or dumping, or unrealistically high for potential buyers.

Here we are already passing, and mentioned another important point realtor contract with the seller - the minimum price at which a real estate agent is taken to find a buyer for the apartment.

Also in the contract must be prescribed documents (very numerous) are for residential sales must collect the seller personally or through a realtor.

The contracts with the realtor and the seller and the buyer can specify the rules of fair "deribana" deposit in case of loss to the seller or the return of double the amount the buyer. For example, a realtor in this case could establish the principle of "half penalty deposit - realtor. At this point you should pay particular attention, especially if you own deposit made in the form of private trilateral agreement.

Also in agreement with the realtor can be a treacherous point as the payment of estate agent in the imperfect deed of sale of housing. In your best interest to such a clause did not exist or was specified minimum amount of payment (the most legitimate of all such options would be a clause stating that the failure of the transaction the seller will return the realtor cost of paid advertising apartments in the "aviso" and other publications submitted as per realtor receipt, but it's better to similar and petty points are fixed).

But even without such a contract clause other unscrupulous real estate brokers manage to claim the money from customers, "moved down to the transaction." In order not to be trapped, remember that real estate brokers and agencies are not eligible to be deposited with the original title documents to sell the apartments. And if such a clause in the contract is registered, that means one thing: the agency is preparing to blackmail you in advance of non-return of your documents if you refused to sell, do not want to pay for agency services and will refer to the fact that such payment has not been described in the contract with him.

Of course, in agreement with the buyer real estate agent should be given the amount of fees that it pays the realtor after committing the deed of sale. Should indicate who pays for notary services in the commission of the deed of sale.

And finally, it is obligatory reference to payment by the buyer and seller after the deed of sale of government payments in a certain amount of state and that the buyer and seller know the volumes these required payments. And these are not just state tax and retirement, but also, say, a tax on "extra meters" over 100 square meters, as well as tax for the second sale of real estate in a tax period.

Finally, we recall that, before all the work with a realtor to select it and check his credentials.
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