Sellers do not want to return the advance. How to return the advance paid for the apartment

diets 31.01.2021

The buyer has every right to receive back the money given as an advance if the purchase and sale transaction did not take place for some reason. But what to do if the seller refuses to return the advance? Are there legal ways to do this?
When making transactions, an advance agreement is concluded quite often. Statistics show that such a document is signed in about 15% of transactions. Sellers believe that in this way the second party confirms that they will definitely buy housing and will not refuse at the very last moment.

advance agreement.

It usually happens that the seller is forced to return the advance to the buyer when the transaction is canceled. In addition, the buyer has the right to demand payment of interest for the time that the money was with the seller.
Not understanding some legal subtleties, the seller believes that in case of cancellation of the transaction, the advance will remain with him. That is, according to the contract, the seller receives some compensation for the lost time and for refusing other buyers, if any. This confirms the text of the treaty. Moreover, the amount is doubled (again, according to the contract).
But in real life the opposite is often the case. The seller will be forced to return the advance, and even may lose his savings. The buyer has the right to demand that he compensate with a certain amount for the fact that the seller used the advance for some time (in fact, the buyer's money). This amount is calculated on the basis of a well-defined indicator - the Central Bank rate. And this is about 9% per annum.

Advance or deposit?

Many sellers think that an advance payment and a deposit are one and the same. No, not one. The advance payment does not secure the deal. Having taken the money and concluded an advance agreement, the seller has no legal right to keep the money if the transaction has not reached its logical conclusion. An advance payment is a portion of the money received by the seller in payment of the amount for a future purchase. As long as there is no present purchase-sale agreement, the advance agreement does not provide for the obligations of the buyer. The seller must clearly understand that the advance is not a guarantee of purchase, the buyer is not obliged to complete the transaction. This is only part of the money paid by the buyer to the seller until the main contract is concluded.
In case of a failed transaction, the seller will have to return the advance amount to the buyer. It doesn't matter why the deal failed. Even if the buyer is guilty of its disruption, the seller should not withhold the advance, no matter how much they would like to. If he still refuses, then the buyer has the right to file a claim with the appropriate authority. Having demanded a refund, he may also demand payment of interest for the use of other people's finances for the entire time that the money was with the seller. The basis for filing an application is article number 395 of the Civil Code of the Russian Federation. Interest will be calculated in accordance with the rate of the Bank of Russia.

How does the court proceed in this case?

At the hearing, the seller stands on the fact that the advance is a deposit. Russian legislation regulates this process. Thus, Article 380 of the Civil Code of the Russian Federation defines the concept of a deposit. According to this article, a deposit is understood as a guarantee that the transaction will take place, that is, the buyer is obliged to fulfill these obligations. And the amount in this case is part of the funds due for payment under the contract. And the next article says that if the party that paid the deposit is the culprit of the failed transaction, then the amount remains with the second, injured party. And the seller in this case- injured party.
This state of affairs is beneficial to the seller. But in practice, the courts work on other articles - 421 and 422. And in accordance with them, the provisions used in the deposit agreements cannot be included in the advance agreement. And one of these provisions is the disruption of the transaction, in which the buyer is guilty. If they are still included, then the agreement is considered invalid. That is the decision the court will make.
The advance agreement loses its role if the parties for some reason did not conclude this agreement, and the property did not become the property of the buyer. The buyer has the right to get his own funds back, and the seller must not interfere with this. Otherwise, he is threatened trial under a serious article punishing enrichment at the expense of an outsider (Article 1102).
The seller could have avoided such a deplorable situation if he had attended in time and understood the intricacies of the terminology of jurisprudence. Most often, they sincerely think that the advance and the deposit are one and the same, and the advance agreement completely replaces the deposit agreement. And it also happens that such an agreement is perceived by the seller as an even more significant document: as a preliminary agreement. But the seller's ignorance of the true meaning of the terms will not pity the court, which will make decisions based on the available documents. The courts operate according to the law.

The receipt will replace the contract.

An advance payment agreement is not required. It will be enough to take a receipt from the seller that he received an advance payment for the purchased property. It should reflect the amount, the address of the house where the apartment is being bought, the date of the transaction and other parameters provided by law. With this document, the buyer will easily return his money (under unfavorable circumstances) by contacting the judicial authorities. And it also happens that the judge took the side of the buyer even without a receipt.

It's not worth the risk.

AT judicial practice often there are claims in which the buyer requires the return of the advance from the seller. This suggests that the population is poorly versed in legal intricacies.
The deposit differs from the advance significantly. The buyer, thanks to him, have obligations. And if the buyer does not ensure the execution of the transaction, he will lose the amount of the deposit. Therefore, the buyer should not rush to conclude a deposit agreement.
The fact is that various factors interfere in life. It doesn't always work out the way it's supposed to. And even if the buyer is serious about buying an apartment, there may be insurmountable obstacles to this. The deal is delayed or canceled altogether. The buyer loses the money given as a deposit. Therefore, it is worth thinking a hundred times, weighing all your possibilities, and only then conclude a deposit agreement. It is very easy to lose money.

The purchase of some goods requires a conscious, well-balanced decision. At the same time, the buyer may change his mind, deciding that the product is not needed, not worth the money, or simply does not perform the necessary functions. And, as a rule, refusal to purchase does not cause any difficulties.

But what if the first steps have already been taken and an advance payment has been made? Is it possible to return it legally if the buyer himself decided that he did not want to purchase this or that thing? We will talk about this in our article.

Is it possible to return the money?

Assistance of the State Services with the return of money

It is far from always the seller or the service providing organization that provides services agree to go for legal requirements for the return of the prepayment. In this case, the citizen has several ways to protect his interests with the help of public services. The Court can also help a person.

– The best way restore your consumer rights. It is this organization that regulates the rules and norms for the provision of services, and also ensures that these same rules are observed. And it is there that your complaint will be considered as quickly and in detail as possible. The appeal is quite simple - it has only three parts:

Title. Contains the details of the department, information on the applicant and the person against whom the complaint is filed;
Information part. It prescribes the circumstances of the purchase, refusal of the transaction, general information about the course of the conflict. It also outlines the basic requirements;
Final part. Contains additional data on the case, a list of documents, the signature of the applicant, the date of filing the application.

If you apply to Rospotrebnadzor with such a statement, then he will have to check(which takes about a month) and make a decision, which will be communicated to you separately in a letter. If it is in your direction, then the seller will be forced to return the advance payment.

A more complicated way to return money is. Statement of claim about the beginning of the proceedings on the return of the advance payment is no different from. After its submission, it should be considered within a week and, if everything is in order, initiate proceedings. If you have some kind of non-standard situation (for example, a dispute about the terms of the contract), then you should get the support of a lawyer. If you just encountered an unscrupulous seller or you already have an affirmative decision from Rospotrebnadzor, then it will not be difficult for you to win the case.

Sample Documents

According to the statistics of the Lawyer Oleg Sukhov's Legal Center, about 15% of real estate sellers enter into advance payment agreements with home buyers, considering the amounts received as reliable way ensuring the fulfillment of obligations under a future sale and purchase agreement. Nevertheless, in practice, even if the deal fell through due to the fault of the buyers of the apartment, the sellers have to not only return advances to counterparties, but also pay interest for illegal use in cash at the rate of 9.5% per annum.

Scenario of conflict around advance payments

Usually, conflict situation around advance payments develops according to the same scenario. The parties - the buyer and the seller of the apartment - conclude an agreement on making an advance payment on account of the purchase of real estate. The seller expects that in the event that the buyer refuses to purchase housing, he will be able to keep the amount paid in advance as compensation. The advance payment agreement states that in the event of a failure to purchase and sell an apartment due to the fault of the buyer, the double amount of the advance becomes the property of the seller. However, this warranty does not apply. Why?

How to return an advance for an apartment

“There are no legal grounds for withholding an advance from a real estate seller. An agreement on making an advance payment without concluding the main contract of sale cannot be the basis for the emergence of a monetary obligation. An advance payment is a sum of money paid before the execution of the contract on account of due payments. Unlike a deposit, an advance does not perform a security function, therefore, regardless of how the obligation is fulfilled, as well as in the event of termination of preliminary agreements, the party that received the appropriate amount is obliged to return it, ”explains lawyer Oleg Sukhov.

According to the lawyer, if the seller refuses to return the advance payment, the failed buyer has the right to apply to the court to invalidate the advance payment agreement and recover the disputed amount. Moreover, art. 395 of the Civil Code of the Russian Federation allows a failed buyer to require the party evading the return of funds to pay interest for the unreasonable use of other people's funds. The amount of interest is determined by the current discount rate of bank interest on the day of fulfillment of the monetary obligation or its corresponding part (and this is about 9% per annum). This rule applies unless a different amount of interest is established by law or contract.

Arbitrage practice

“If the case goes to court, the sellers usually insist on recognizing the advance as a deposit,” says lawyer Oleg Sukhov. - In accordance with Art. 380 of the Civil Code of the Russian Federation, a deposit is recognized as a sum of money issued by one of the contracting parties on account of payments due from it under the contract to the other party as evidence of the conclusion of the contract and to ensure its execution. Article 381 of the Civil Code of the Russian Federation establishes that if the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. However, the courts consider that the inclusion in the advance payment agreement of a condition on the liability of the parties, applicable to deposit agreements, is contrary to the provisions of Art. 421 and 422 of the Civil Code of the Russian Federation, and recognize such provisions of the agreement as invalid.

When considering such disputes, the courts refer to Part 3 of Art. 487 of the Civil Code of the Russian Federation, according to which, in the event that the seller, who received the amount of the advance payment, does not fulfill the obligation to transfer the goods within the prescribed period, the buyer has the right to demand the return of the amount of the advance payment for the goods not transferred by the seller. Since the contract for the sale of an apartment between the parties was not concluded, the obligations stipulated in the advance payment agreement concluded between the parties cease and the advance payment paid under the contract must be returned to the plaintiff in accordance with Art. 1102 of the Civil Code of the Russian Federation, regardless of whose fault the contract of sale was not concluded.

According to lawyers, the sellers' arguments that they considered the concluded agreements as a preliminary contract of sale or a contract for receiving a deposit are usually not taken into account by the courts. Moreover, there are cases when the amount of the advance payment was collected even in the absence of receipts for the receipt of money.
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Information about the "Legal Center of Lawyer Oleg Sukhov"

Oleg Sukhov Lawyer Legal Center was founded in 2006, when a team of specialists, ready to help in the most difficult legal situations, united under the leadership of one of the leading Moscow lawyers, Oleg Sukhov.

"Legal Center of Lawyer Oleg Sukhov" today is an established brand with a high professional reputation and a wide range services provided (from legal services and comprehensive legal support to financial consulting).

Clients are served by lawyers and lawyers who specialize in various areas of law. In their work to protect the rights of citizens and business representatives, lawyers work closely with various government agencies, as well as with law enforcement, which helps to quickly find the best ways to solve complex problems given by the client.

How to return a deposit? Such a question may arise both for the buyer of real estate and for the seller. Not always the return of money is painless for the other parties to the transaction.
After all, all plans fall apart! And sometimes there is a waste of money and time.

How to return a deposit

The task of returning the deposit can arise both for buyers if they have found a property more suitable for themselves, and for sellers if they change their mind about selling.
If the parties call a deposit a payment transferred simply by receipt, this is not a deposit at all.

After all, a deposit is recognized as a payment transferred on the basis of an agreement on a deposit drawn up in writing.

How to return the deposit to the buyer from the seller

If you transferred the deposit on the basis of the agreement on the deposit and received a receipt from the Seller in receipt of the deposit, then the deposit was executed correctly. And you can return the deposit in double size.

If the deposit agreement is not signed, the court will most likely recognize the payment in advance. And you can only count on receiving the transferred amount.

How to return the deposit before the end of the preliminary contract?

Return before the expiration of the preliminary contract for the sale of the apartment.

That is, the Buyer changed his mind about buying an apartment:

Because he just changed his mind - then the Seller has the right to keep the deposit

Because the Seller prepared the documents within the specified time, that is, he violated the terms of the contract, and your deal fell through - you can demand the return of the deposit in double size

because

Return in single size after the termination of the preliminary contract for the sale of the apartment.
Return in double size.

Returning a deposit is never an easy task.

If the initiator of termination of the preliminary contract became a Seller- You can demand the return of the deposit in double size. , then you can count on success in the Court if the Seller does not return it in double size voluntarily.

If not true, even the Court will consider it an advance. Then you can only count on the amount that was transferred, provided that you have

When the Buyer Changes His Mind- A seller with a clear conscience can keep the money for himself, as long as the order is correct.

And the advance payment, in case of a failed transaction, is returned to the Buyer in full.

The return of money (advance or deposit) for the Seller is difficult, as it is often transferred by the Seller for a new apartment.

In most cases, this issue is resolved positively by mutual agreement of the parties.

How to return a deposit. Correct design

To avoid the temptation of further proceedings in court for one of the parties, I recommend drawing up an Agreement on the absence of mutual claims or mutually destroy all previously signed documents.

Therefore, before deciding to return the deposit, it is necessary to study the signed documents. Only then will you be able to answer the question - how to return the deposit.

How to return a deposit easier?

Talk to the Seller like a human if you really have a good reason.

Civil Code Russian Federation. Deposit

§ 7. Deposit

Article 380 Deposit agreement form

1. A deposit is recognized as a sum of money issued by one of the contracting parties on account of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its performance.

2. An agreement on a deposit, regardless of the amount of the deposit, must be made in writing.

3. In case of doubt as to whether the amount paid on account of payments due from the party under the contract is a deposit, in particular due to non-observance of the rule established by paragraph 2 of this article, this amount shall be considered paid as an advance, unless otherwise proven.

4. Unless otherwise provided by law, by agreement of the parties, a deposit may secure the fulfillment of the obligation to conclude the main contract on the terms stipulated by the preliminary contract (Article 429).

(Clause 4 was introduced by Federal Law No. 42-FZ of March 8, 2015)

Article 381

1. When an obligation is terminated prior to the commencement of its execution by agreement of the parties or due to the impossibility of performance (Article 416), the deposit must be returned.

2. If the party that gave the deposit is responsible for non-performance of the contract, it remains with the other party. If the party that received the deposit is responsible for non-performance of the contract, it is obliged to pay the other party the double amount of the deposit.

Moreover, the party liable for non-fulfillment of the contract is obliged to compensate the other party for losses, offsetting the amount of the deposit, unless otherwise provided in the contract.

How to return the deposit to the buyer and seller?

Many real estate sellers enter into advance agreements with home buyers, considering the amounts received as a reliable way to secure the fulfillment of obligations under a future sale and purchase agreement. Nevertheless, in practice, even if the transaction failed due to the fault of the buyers of the apartment, the sellers have to not only return advances to counterparties, but also pay interest for the illegal use of funds. Lawyer Oleg Sukhov (“Legal Center of Lawyer Oleg Sukhov”) told Real Estate Mail.ru portal why this is happening.

Scenario of conflict around advance payments

As a rule, the conflict situation around advance payments develops according to the same scenario. The parties - the buyer and the seller of the apartment - conclude an agreement on making an advance payment on account of the purchase of real estate. The seller expects that in the event that the buyer refuses to purchase housing, he will be able to keep the amount paid in advance as compensation. The advance payment agreement states that in the event of a failure to purchase and sell an apartment due to the fault of the buyer, the double amount of the advance becomes the property of the seller. However, this warranty does not apply. Why?

How to return an advance for an apartment

Arbitrage practice

When considering such disputes, the courts refer to Part 3 of Art. 487 of the Civil Code of the Russian Federation, according to which, in the event that the seller, who received the amount of the advance payment, does not fulfill the obligation to transfer the goods within the prescribed period, the buyer has the right to demand the return of the amount of the advance payment for the goods not transferred by the seller. Since the contract for the sale of an apartment between the parties was not concluded, the obligations stipulated in the advance payment agreement concluded between the parties cease, and the advance payment paid under the contract must be returned to the plaintiff in accordance with Art. 1102 of the Civil Code of the Russian Federation, regardless of whose fault the contract of sale was not concluded.