Purchase of land: a preliminary agreement

08.06.2011 11:29
Purchase of land: a preliminary agreement Purchase of land usually occurs in two stages. First enter into a preliminary agreement, and after preparation of documents - the main one.

Where to start?

The first step in studying the availability of land necessary infrastructure is to define the type of software.

If the land is in an area of ??existing buildings within the locality (urban, rural, urban-type settlement), it is easy to figure out (communication either there or they are not). As a rule, the Ukrainian villages are provided with electricity. Water supply, sewage and gas supply is not everywhere. But in the village no personal initiative of the builder is not possible. Therefore, it remains only to find the local council when you plan to strip some or other communications, and wait.

About the same things, if the land is located in the cottage. Usually has to purchase land seller informs the buyer all the conditions of connection to utilities: when you plan to do (finish) their construction, how much to pay for the connection.

If the land is located outside the existing built-up (although formally it can be and within the administrative boundaries of settlements), a question such as providing public services is becoming urgent. Buyer in this case, ask the seller or broker (or better - directly in the local council) in the presence of the cooperative or similar organization that would take the provision of a collective interest of developers. If no such organization, the buyer must understand that he is either at risk indefinitely (until a critical mass of owners of adjacent plots, want to build, and will not create this very specialized organization) remain without any communication, or rely solely on their strength in addressing the problem software engineering.

If a specialized organization (cooperative, garden community) still exists, the developer should refer to her supervisor. He usually has the necessary information regarding the prospects for communal benefits and happy to share this information. With joy, because the potential buyer is a potential member of a cooperative or horticultural associations and their contribution to the common cause can facilitate the shipment of total expenditure.

If a decision is made

Preliminary assessment of baseline conditions relating to vending land has been completed. The buyer has studied legal documents, met with the owner of the land and checked his documents, singled out land in nature, check (no) restrictions (encumbrances) to use it, evaluate the potential additional costs associated with providing future home necessary public services, and finally decided to buy.

As a rule, the legal procedure of purchase of land in two stages: the first sign a preliminary contract, the second stage includes the preparation for signing and signature of the contract of sale of land.

Agreement or contract?


Proceeding to review the procedure of signing the preliminary contract, you must, above all, have a general idea of ??what a preliminary agreement and why we need such an intermediate stage of purchase of land.

According to Section 1, Art. 635 of the Civil Code of Ukraine (CCU), the preliminary contract is a contract, the parties undertake that during a certain period of time (on a certain date) to conclude the main contract.

Preliminary agreement on concluding a contract of sale sets out the obligations of seller and buyer in the future to conclude the basic contract of sale of land on terms determined by the preliminary contract. For breach of such obligations provided for legal liability, which will be discussed below. This preliminary agreement differs from a simple agreement of seller and buyer that they are within a certain time will conclude the sales contract.

In the case of a simple arrangement and the seller and the buyer may refuse to conclude the basic contract, without fear of attack for a negative impact. Grounds for refusal (from both the buyer and the seller) can be set: the seller can find a buyer who agrees to buy land at a higher price and the buyer - cheaper land, not inferior in quality, the buyer can change the material position, and a seller - need to fall off the market. Though we have listed the reasons that may be grounds for rejection of the deal, life is still rich and can offer a circumstance which had never before encountered in practice.

To make the rejection of the agreement on purchase of land more cumbersome and fraught with negative consequences, the legislator and offered a tool such as a preliminary agreement, which protects the interests of future seller and the buyer obligates them to fulfill certain conditions for signing the main contract.

Why the need for a preliminary contract?

The reader may ask: why put off the deal and sign a preliminary contract, unless the parties have agreed to purchase the land? Is it not better just to conclude the basic contract? To conclude the basic contract is necessary to collect a certain set of documents, preparation of which requires some time. This period is precisely the validity of the preliminary contract. For specified in this document, the parties must sign the main contract.

Key provisions of the preliminary contract


Despite the fact that the preliminary contract you are likely to contact a lawyer, it is useful to know the list of mandatory provisions of this document.

Essential terms of the contract. Regarding certain types of contracts law establishes the so-called essential terms and conditions, then there are those for non-compliance (lack) of which the contract is not concluded and has no legal force (do not create rights and obligations of the parties).

For contracts of sale of land are essential terms set st. 132 ZKU.

Transactions on the transfer of ownership of land must contain (marks the essential conditions of the contract of sale of land are given according to the official text of the Land Code of Ukraine in the Ukrainian language):

a) The names of the parties (name, name of a citizen, legal entity);

b) the type of transaction (in our case the form of the deal - "Provisional Agreement");

c) the subject of the transaction (the land with the definition of location, size, purpose, structure of land, the legal regime, etc.);

d) information about the document, which confirms the ownership of land;

?) information, the lack of restrictions on alienation of land;

e) information on the absence or presence of restrictions on the use of land for specific purposes (mortgage, rent, servitudes);

e) the contract price;

є) obligations of the parties.

As mentioned above, the basic contract is subject to the conditions set by prior agreement. Thus, if the pending preliminary contract the parties to agree on all terms of the basic contract, then subsequently align the provisions of this document will not represent any problem: they simply be transferred from the preliminary agreement in the main text of the treaty. If any essential terms of the basic contract are agreed on the stage of signing the preliminary contract, the sides of them will have to negotiate before signing the main contract.

And here the possible legal trap: the law does not oblige the parties to agree on essential terms of the agreement on a mandatory basis and does not provide sanctions for failure to reach agreement. The only consequence of the fact that the parties have not agreed on all material terms of the contract, it will be impossible to conclude a legally significant agreement (the one that generates the civil rights and obligations). Thus, if the tentative agreement will not contain all the essential terms of the basic contract, and the parties fail to agree on them later, it could become the basis for the main contract will not be entered into without the guilt of both parties. Then it may be a dispute over the fate of the advance, the buyer passed on signing the preliminary contract. And to solve it will be difficult. Therefore, the preliminary agreement is better to include all material terms of the basic contract.

Making some of the above essential conditions of the main contract in the preliminary contract presents no difficulty. Some of them, in our opinion, require further explanation. This material conditions listed above in paragraphs "d" - "є".

Spousal consent


If the seller is married, will need a notarized consent of the spouse for alienation of land. This document is necessary because under Art. 60 Family Code, property (including land) acquired for the period of stay in a marriage belongs to the husband and wife on the right of joint ownership. If the seller's spouse will be present at the conclusion of the transaction, he may issue his consent with a notary who will certify the preliminary contract. Then, spousal consent need not register separately. According to Part 2, Section 3, Article. 65 MCS at the conclusion of one of the spouses of contracts that require notarization, and (or) the state registration, the consent of the other spouse must be notarized. If a man and woman live as one family, but are not married, the property acquired by them during the period of cohabitation is theirs by right of common property (Article 74 MCS). This rule of law is often not taken into account by notaries, since the rules of notarial acts to establish the duty of a notary fact stay in law marriage is not provided. In future, therefore the risk of challenging the transaction actual spouse full responsibility of the parties to the contract.

Prohibitions on alienation


Information about the absence of prohibitions on alienation of land (sub-item "?"). In Part 2 of guidance on buying land (see Murator for January 2009) recommended to verify the absence of prohibitions on the alienation of the land before signing the preliminary contract. In the case of the presence of restrictions on alienation offered depending on the nature of the prohibition to apply to a lawyer for advice or to negotiate with the seller about the possibility of lifting this ban and the results of consultations (negotiations) to decide on a purchase.

We assume that the buyer took our advice and check (no) restrictions on alienation of land. The result of such reviews may be evidence that any restrictions on the alienation of the purchased land available. Then the corresponding provision of the preliminary contract, which establishes an essential condition for the future of the basic contract, may be stated thus: "The seller must ensure that at the time of signing the main contract, there were no prohibitions on the alienation of land (including, but not exclusively, in connection with finding land in the mortgage for the obligations of the seller or other third parties in the tax lien or a restraint on alienation in connection with civil or criminal case or enforcement proceedings), which shall be confirmed by relevant documents, details of which should be included in the basic agreement. " This situation is a certain guarantee that for the period prior to signing the main contract, the seller would not take any action or, conversely, will take the necessary steps to ensure compliance with this requirement.

A similar provision is recommended that the text of the basic treaty if, prior to signing a preliminary agreement bans the presence has not been verified.

If the same prohibitions on alienation of land there, but after consultation with a lawyer or negotiations with the seller decided not to abandon the purchase of land (due to the fact that the seller had been given sufficient guarantees for lifting the ban at the time of signing the main contract), it should be, except the above provisions to include in the provisional treaty obligation of the seller at the time of signing the main contract to take concrete steps to lift the ban: to withdraw the property from the tax lien, to repay the bank and the bank to ensure the removal of the ban on alienation - depending on the nature of the ban.

Price and Payment


Contract price (item "e"). In a preliminary agreement on a mandatory basis should include a fixed price at UAH, which will be bought on the land. Often, in order to save on taxes on income of individuals sellers (brokers) offering to include in the contract lower price at a level of expert valuation of the land. Recommended: provisionally, and then in the main contract to specify the actual purchase price of the land, as if for any reason a buyer wants to terminate the contract and return the money paid, the actual amount of payment will not be able to get it.

It is also important question about the payment of the cost of land. Usually, the calculation is carried out on signing the contract. From a legal point of view of payment by installments is possible, but in practice it does not apply.

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