the Preliminary contract is the document by which the parties shall subsequently enter into a major deal. If the seller or the buyer later tries to abandon the sale, it is possible to force the transaction through the courts. The main difference from the preliminary agreement from the advance or the Deposit agreement.
“the Preliminary contract of purchase and sale can be concluded in relation to belonging to the seller of the property, and in respect of the property which the seller will acquire in the future, and then sell it to the buyer,” – said the head of Legal services “Inkom-real Estate” Svetlana Krasnova.
It’s about signing a contract when buying a home in a new building usually comes during the “transition period” – when the house is already built but is not yet on the cadastral account. “The developer already has the right to execute the contract of cession, but not able yet to issue the main contract of sale, because the object in his possession is not” – said the head of the Agency “Domel ‘” Svetlana Ovchinnikova.
In the secondary market, such a contract shall be concluded when it is necessary for some time to postpone the deal, but to invest money and effort in its preparation. For example, if the seller is necessary to arrive at a deal from abroad, deal with recovery of documents or to issue inheritance. “It happens that the buyer has the money to buy, but they are in the Bank, and he wants to wait until the expiry of the term of the Deposit, not to lose interest,” says Ovchinnikov.
In practice, the preliminary agreement of sale is used quite rarely, most of the parties are limited to advance payment. Cases of compulsion of the parties to the transaction after the attempted termination of the preliminary contract, realtors can’t even remember – buyers do not want to sue, and generally still agree to a refund of the Deposit in the double size (it is written in the Civil code of the Russian Federation). “It happens that the buyer has found a property that will be much more profitable than buying the preliminary agreement, even taking into account the loss of the Deposit. And it becomes unprofitable, then the underlying transaction the seller refuses,” says Ovchinnikov.
it is believed that the amount of the Deposit under the preliminary contract must be equal to 10% of the purchase price. But, for example, in Moscow because of the high real estate prices it is a lot of money and usually make only 100-200 thousand rubles, not more. “I only saw one time when prior agreement has been made 10%” – says Ovchinnikov.
Restricts the use of preliminary agreements and the situation on the real estate market. In recent years, the lion’s share of transactions is with a mortgage. This means that in the transaction there is a third party – the Bank may not approve the issuance of a loan or the purchase of apartments pledged as collateral. These risks, if details are not specified in the preliminary contract, then either the seller or the buyer will be guilty.
In the current economic situation to enter into a preliminary agreement realtors do not recommend – the situation is unpredictable, the risks for both parties even more. In the case of serious circumstances, a preliminary agreement, according to realtors, will not help to reach the underlying transaction – the parties can invoke force majeure.
If it still goes on signing of the preliminary contract of purchase and sale, that include as much detail as possible. He needs to repeat the main contract of sale. “A preliminary agreement must be concluded in the form established for the basic contract. If the parent provides for the mandatory notarial form (e.g., the sale of shares in the ownership of), then the prior must be certified by a notary,” – said Krasnov. Maximum describe the property, even if it is still under construction. Fix the price of housing. If predgovor not determine the time of conclusion of the main contract, the main must be concluded within a year. To present in court the requirement about compulsion of the other party to conclude a contract within six months from the date of the breach.
