Each of us has definitely encountered a situation when we urgently need to sell or buy a property, or urgently rent out premises under a rental agreement or, conversely, rent.
At the same time, as a rule, in such cases one cannot do without the help of realtors.
It should be noted that there are different points of view regarding the legal nature of the agreement with a realtor - some consider it to be an agreement for the provision of services, others to an agency agreement, and others consider it a mixed unnamed agreement.
This situation in the sphere of residential real estate turnover, in my opinion, is unacceptable.
The relationship between commission agreements, commission agreements, agency agreements and real estate agreements
Among contracts for the performance of legal and other actions in the interests of third parties (commission, assignment, agency), there are also contracts for the performance of actual actions that do not imply the performance by the hired person of any legal actions in the interests of his client.
The contract of actual mediation and its special case - a real estate agent, or brokerage agreement, in the current Civil Code of the Russian Federation is an unnamed transaction [In the text of this article, the terms “realtor”, “broker”, “actual intermediary” will be used as synonyms when referring to judicial acts and their contents I have retained the spelling “realtor”].
Commission, commission and agency agreements with an actual mediation agreement have common features: all of the above agreements formalize an intermediary relationship in which, due to the responsibilities assumed, the realtor must act in good faith in the interests of his client, even if they contradict the interests of the realtor himself .
Related to this is the realtor’s obligation to apply all his knowledge and skills when executing the client’s instructions, as if he were acting in his own interests, and not in the interests of the client.
The obligation of a realtor to act exclusively in the interests of the client (principal), as A. Rudyakov notes, leads to the fact that in addition to the prohibition for a realtor to act as a counterparty to his principal in the United States, for example, there is a ban on double agency. Dual agency is a situation where one realtor acts in the interests of two opposite parties to the transaction: buyer and seller, tenant and landlord. In the case of double agency, the main interests of the principals are diametrically opposed - to sell from one at a higher price, and from the other to buy at a lower price, etc. [See: Rudyakov A.N. Fiduciary responsibilities of a realtor: foreign experience and the realities of Russian law. Law. 2012. No. 12. P. 207–208].
However, there are certain differences between these agreements.
Thus, in contrast to an agreement with a realtor, the meaning of an agency agreement lies precisely in the long-term, systematic fulfillment by the agent of the obligations assumed (several actions) over a fairly long period of time.
A realtor, on the other hand, can fulfill his duties in a fairly short time under a successful combination of circumstances, for example, when he was first approached by the seller of an apartment, and then a potential buyer of the same property contacts him, and the terms of the upcoming transactions are approximately the same (price, terms, payment procedure and so on.).
In addition, unlike commission, commission and agency agreements, the realtor does not have any authority to act on behalf of the client.
It must be borne in mind that in the future, the realtor, having received a power of attorney from his client and acting as a representative, can represent his interests when signing a purchase and sale agreement, as well as when submitting the necessary documents to the registration service.
Agency agreement for the purchase of real estate
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An agency agreement for the purchase of real estate is one of the most common agency agreements in business practice.
According to the terms of the agency agreement form, the agent (real estate firm, agency) undertakes to perform, for a fee, on behalf of the principal, actions that are aimed at acquiring real estate for the principal.
In the form of an agency agreement for the purchase of real estate, the parties determine the essential terms of the transaction, in particular the object of the agreement (house, apartment, building, non-residential premises, land, structure), its characteristics and the actions of the agent. In an agency agreement for the sale of goods, the object of the agreement – the goods – is similarly defined.
When purchasing real estate, the activity of an agent (real estate company, agency), as a rule, has two components or one of them:
- Acquisition of real estate;
- Registration of the transaction, which includes drawing up an agreement, collecting the necessary documents, submitting them, initial registration of the property when such has not been done, and other actions accompanying the transaction.
When an agent is entrusted not only with the acquisition of real estate, but also with its sale, it is better for the parties to pay attention to agency sales agreements (including an agency agreement for the sale of services).
The principal (client), by concluding an agency agreement for the purchase of real estate with an agent (real estate company, agency), cannot grant rights to a third party (another agency, real estate company) or assign responsibility to him. But it is possible to represent an agent (real estate firm, agency) to another client (principal) to establish legal relations between its clients.
The template for an agency agreement for the purchase of real estate uses the following applications:
- Calendar plan;
- Description of the property.
The following accompanying documents are used in the template of an agency agreement for the purchase of real estate:
- Additional agreement;
- Agent's report;
- Protocol for reconciliation of disagreements;
- Protocol of disagreements.
Sample agency agreement for the purchase of real estate
An agency agreement for the purchase of real estate is an agreement under which one party (the agent), for a fee, undertakes to purchase real estate on behalf of the principal (the other party) in its own name, but at the expense of the principal or at the expense and on behalf of the principal. Related agreements are the commission agreement and the agency agreement.
Service agreement and real estate agreement
An agreement with a realtor is also significantly different from an agreement for the provision of services (Chapter 39 of the Civil Code of the Russian Federation).
The unilateral nature of the real estate contract is manifested in the presence of obligations on only one party - the client, while rights arise only with the realtor. The contract for the provision of services for a fee, as well as the agency contract, are bilaterally binding.
The subject of a real estate agreement is the performance by the realtor of actions of an exclusively factual nature, aimed at providing assistance and other assistance to his client in concluding a transaction in relation to the property. In other words, the responsibility of a realtor consists, first of all, in subsequent contact between the seller and the buyer during purchase and sale, and between the lessor and the tenant during renting (hiring).
Thus, O. Semushina, regarding the nature of the actual mediation agreement, notes that the assistance of the intermediary is expressed in the implementation of actual actions (searching for a counterparty, negotiating, participating in the development of the terms of a future transaction, advising on the conclusion of a transaction and “bringing together” the parties for the subsequent conclusion of a transaction) [See: Semushina O.V. Agreement of actual mediation// Economy and Law. 2011. No. 9. P. 103].
Simply put, an agreement with a realtor covers only those actions that precede the client’s conclusion of contracts for the sale or lease of real estate, therefore, for example, in the USA, when the deal is about to be completed, the buyer turns to his lawyer to check the documents, since not a single realtor does this - neither wants nor has the right [See: A. Oganesyan. A Western realtor has a different philosophy of providing services//URL: https://www.domivka.com.ua/Info/ Info_Ukraine/ Artur_Oganesian /interview-1.html].
E. Nakushnova, speaking about the regulation of contracts for the provision of services and real estate contracts by Chapter 39 of the Civil Code of the Russian Federation, about [E. V. Nakushnova. Features of the legal regulation of obligations to provide real estate services // Modern Law. 2012. No. 12//SPS “ConsultantPlus”].
Contract with the buyer of real estate: what to pay attention to
The contract with the real estate buyer has a relatively uniform structure, although slight variations are possible. Most often, when you open such a document, you will see the following information:
- The subject of the agreement (given the topic of the article, it is obvious).
- Obligations and rights of the parties.
- Responsibility of persons entering into a transaction.
- Validity period of the paper in question.
- Details, as well as addresses of the parties and other data.
Is it necessary to enter into an agreement with a real estate agency if you seek help from specialists? Without a doubt. Moreover, a company with a good reputation will not work with a client without first signing such an official document.
Judicial practice on the collection of remuneration by realtors
In judicial practice, one of the most difficult issues is the issue of determining the moment when the intermediary has the right to remuneration and, accordingly, the issue of the realtor collecting his remuneration.
In the absence of legal regulation, it seems that such a right arises for a realtor at the moment when a real estate transaction is concluded between his client and the counterparty found by the realtor.
It is necessary to take into account that the purchase and sale or rental agreement for residential premises with the person selected by the realtor can (but is not obligated) only be concluded by the client himself (the principle of freedom of contract).
As O. Semushina correctly notes, for the right to remuneration under a brokerage agreement to arise, it does not matter what specific actions the broker performed, the scope of these actions may vary from case to case, the main thing is that through his mediation the transaction desired by the client was concluded [See: O. Semushina B. Basic rights and obligations of the parties to a brokerage agreement in the field of real estate // Law. 2010. No. 1. P. 152].
But in most cases, courts collect debt, qualifying such an agreement as a contract for the provision of services.
The crux of the matter
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The plaintiff, Royal Realty LLC, filed a lawsuit against the defendant, Solar Wind LLC, to collect a debt of 80,000 rubles. for services rendered under Agreement No. 11/26-04 dated April 26, 2012 on the provision of services for the selection of real estate objects (hereinafter referred to as the Agreement), under the terms of which the Customer instructs and pays the Contractor, and the Contractor provides the Customer with selection services for the purpose of renting real estate objects . Also, Royal Realty LLC filed a demand for the collection of a penalty (penalty) in the amount of 106,000 rubles. on the basis of clause 5.1 of the Agreement. In support of his claims, the plaintiff referred to the provisions of Chapter 39 of the Civil Code of the Russian Federation.
According to the act of presenting premises dated April 26, 2012 (Appendix No. 1 to the Agreement), the Customer was offered three premises located in Moscow. In each act of presentation of premises in the column “signature of the Customer” there is a signature of the general director of LLC “Solar Wind” Stepanova I.V., indicating that all three premises proposed by the plaintiff were inspected by the Customer and, as a result, the last one was chosen premises No. 3.
Thus, the plaintiff fulfilled its obligations under the Agreement and provided the defendant with premises for further rent, but the defendant did not pay for the services provided by the contractor.
In accordance with paragraph 1 of Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
In accordance with Part 1 of Art. 781 of the Civil Code of the Russian Federation, the customer is obliged to pay for the services provided to him within the time frame and in the manner specified in the contract for the provision of paid services, however, in violation of the terms of the contract, the defendant did not pay for the services provided.
Therefore, a debt of 80,000 rubles. subject to recovery in court on the basis of Part 1 of Art. 781 Civil Code of the Russian Federation. In addition, the court collected from the defendant a penalty in the amount of 0.5% of the payment amount for each day of delay in the amount of 106,000 rubles (decision of the Moscow Arbitration Court dated May 20, 2013 in case No. A40-25490/2013).
The court decision was not appealed in the appeal and cassation procedures and entered into legal force. In another case, a real estate agency and its client (a commercial bank) reached the Supreme Arbitration Court of the Russian Federation (decision of the Arbitration Court of the city of St. Petersburg and Leningrad Region dated September 28, 2006 No. A56-17517/2006, resolution of the Thirteenth Arbitration Court of Appeal dated January 26, 2007 No. A56- 17517/2006, resolution of the Federal Antimonopoly Service of the North-Western District dated April 25, 2007, determination of the Supreme Arbitration Court of the Russian Federation dated August 29, 2007 No. 10285/07), which refused the bank to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation with reference to the fact that, taking into account the factual facts established by the courts Circumstances that together testified to the proper fulfillment by the plaintiff of the obligations assumed under the contract, the courts reasonably granted the claim for collection of the main debt and penalties for untimely fulfillment of obligations to pay for services provided.
Based on the foregoing, we can come to the conclusion that the Russian Federation has developed the practice of recognizing such contracts as contracts for the provision of services, although it, of course, does not seem correct.
The practice of courts of general jurisdiction also classifies contracts with realtors as contracts for the provision of services (for example, the cassation ruling of the St. Petersburg City Court dated April 4, 2011 No. 33-4595/2011 in case No. 2-205/2011, the appeal ruling of the Industrial District Court of Barnaul, Altai Territory dated May 16, 2013 in case No. 11-77/2013).
In our opinion, actual intermediaries, in the absence of a proper stipulation in the Civil Code of the Russian Federation of the contract mediating the performance of their duties, when filing claims in the courts for the collection of remuneration out of desperation, increasingly began to rely on the norms of Chapter 39 of the Civil Code of the Russian Federation on the contract for the provision of services, however whether such a position will find support in court or not is impossible to predict in advance.
However, it should be borne in mind that the simple provision by realtors of advertising services for placing an advertising product about a real estate property in a newspaper (ads, photographs, other text) is legally considered by the courts as a contract for the provision of services (decision of the Arbitration Court of the Orenburg Region dated November 1, 2008 in case No. A47-5731/2008).
Unfair actions of realtors
Very often, disputes arise between the parties to a transaction, who are ordinary citizens, regarding the nature of the transactions and the resulting relationships, in which realtors directly or indirectly participate (decision of the Central District Court of Komsomolsk-on-Amur dated April 25, 2013 on the claim Grigorieva L.G. to Alexandrov V.V., Alexandrov V.V., Alexandrova L.Yu., appeal ruling of the Altai Regional Court dated May 29, 2013 in case No. 33-4143/13).
There are cases when unscrupulous and sometimes simply illegal actions of realtors lead to citizens simply being deprived of their rights to housing that previously belonged to them.
Real estate agency agreement with the buyer and other advantages of contacting the Colosseum Academy
The contract between a real estate agency and a buyer is one of many documents that anyone can view on our website. After all, the Academy of Sciences “Colosseum” works openly, which promotes trusting relationships. Among other things, we are always happy to offer:
- Consultations with experts on various issues.
- Prompt search for good offers.
- Individual approach.
- Each transaction is handled by specialists.
Make sure for yourself that working with professionals is simple and profitable! Call!
The crux of the matter
Rakov I.A. filed a lawsuit against Bolshakova O.P. and Bolshakov I.B., in which, taking into account the changes made to it, he asked to recognize the defendants as having terminated the right to use the residential building and land plot located on <…> .
At the same time, the plaintiff raised the issue of eviction of the defendants from the disputed home ownership. In substantiating the stated claims, the plaintiff indicated that he is the owner of the land plot and residential building on the basis of a purchase and sale agreement dated <…> and a certificate of state registration of rights. After acquiring the disputed property, the plaintiff learned that the former owner, O.P. Bolshakova, and her son, I.B. Bolshakov, lived in the residential building. The defendants voluntarily refuse to vacate the residential building and land plot. The plaintiff, as the owner of the property, is deprived of the opportunity to own, use and dispose of the property belonging to him.
The defendant Bolshakova O.P. did not recognize the claims and asked to dismiss the claim, explaining that she is the owner of the disputed residential building based on the decision of the Vsevolozhsk City Court dated December 20, 2007.
In 2008, she contacted a real estate agency <...> in order to carry out actions to exchange a residential building and land plot for an apartment in the city of St. Petersburg, in connection with which <...> issued a power of attorney to the agency employee N.V. to carry out the specified actions.
Subsequently, the defendant learned that N.V., without her knowledge, executed a purchase and sale agreement for the disputed residential building in favor of her mother N.F., who, in turn, alienated the residential building and land plot in favor of N. under the gift agreement V. Subsequently, N.V., under a purchase and sale agreement from <...>, sold the disputed property to Rakov I.A., who is the plaintiff in the case.
The defendant believes that the listed transactions, as a result of which the disputed property was removed from her property, were carried out illegally, therefore the plaintiff Rakov I.A. does not have the right to raise the issue of her eviction from the residential building, which is the only place of residence for the defendant and her son. By the decision of the Vsevolozhsk City Court of the Leningrad Region dated December 3, 2012, the claims of Rakov I.A. were satisfied: the defendants Bolshakova O.P. and Bolshakov I.B. were recognized as having ceased the right to use the residential building and land plot located <…>, and were evicted from the said residential building.
The appellate instance, to which Bolshakova O.P. and her son Bolshakov I.B. filed a complaint, upheld the court decision due to the fact that the sale and purchase transaction, as a result of which the disputed house left their possession, was not challenged (appeal ruling of the Leningrad Regional Court dated March 13, 2013 in case No. 33-1083/13).
The crux of the matter
Utemov D.A., Zalesova V.V. filed a lawsuit against Realtorskaya LLC and Profil-Stroy LLC for damages in the amount of <...> rubles.
In support, the plaintiff indicated that on the portal <…> he found an advertisement for the sale of a 2-room apartment. He and his family wanted to improve their living conditions. The website provided a mobile phone number for feedback, and after calling it, he found out that a real estate company (the defendant) was selling the property. Subsequently, he signed an agreement with the defendant to search for a property and to assist in its acquisition, however, at the time of signing the agreement with the agency, he did not have the entire required amount, but he planned to sell the apartment owned by him and receive the missing amount.
The defendant’s employee prepared the necessary documents, guaranteeing the purity of the transaction, the cost of the agency’s services and the cost of services for drawing up draft contracts were agreed upon, which he paid in full after the assurance of the employee, defendant Sh., that she had carefully checked all the documents for the apartment.
Then, between Profil-Stroy LLC, acting as the seller of the apartment, and V.V. Zalesova, an agreement on the assignment of the right of claim, presented by Sh., was signed, while all the funds paid to the seller belonged to him, but they decided to register ownership of the apartment in Zalesov V.V., therefore the agreement on the assignment of the right of claim was signed by her.
He transferred funds in the amount of <...> rubles to Profil-Stroy LLC as an advance payment, and the remaining amount of <...> rubles was transferred after the sale of his apartment.
After this, the plaintiff made a request for membership of the seller of the apartment, from which it became known that the seller of Profile-Stroy LLC was expelled from the housing cooperative due to non-payment of share contributions.
The Commission on Professional Ethics and Monitoring Compliance with Professional Standards of the Ural Chamber of Real Estate ordered the defendant to return the compensation to the plaintiff, since as a result of the unprofessional actions of the real estate agency, he suffered damage in the amount of <...> rubles. Subsequently, the plaintiffs filed a waiver of the claim regarding the claims made against Profil-Stroy LLC, which was accepted by the court.
The representative of the defendant did not admit the claim, explaining that the realtor fulfilled his obligations under the contract properly, since the client was selected an apartment that met the requirements established in clause 1.1. agreement No. <…> dated <…>, and the submission of documents for registration was not carried out due to the fact that the specified agreement, according to the current legislation, is not subject to registration. However, the court did not agree with the defendant’s arguments and noted the following.
By virtue of Article 29 of the Law “On Protection of Consumer Rights”, the consumer has the right to demand full compensation for losses caused to him in connection with deficiencies in the work performed (service provided).
Analyzing the provisions of the advance agreement concluded with the seller, the court came to the conclusion that the advance agreement cannot be recognized as an appropriate way of executing the contract for the provision of services by a realtor, since the advance agreement does not give rise to D. A. Utemov’s rights to the apartment he has chosen, since the realtor did not carry out legal assessment of the transaction, namely, the fact that the shareholder has the right to assign the apartment’s claims to the housing cooperative has not been verified. In addition, the advance agreement agreed on a transaction price exceeding the stated amount of <…> rubles. The terms of the service agreement do not provide for the conclusion of an advance agreement on the assignment of the right of claim.
The argument of the defendant's representative that the realtor's responsibility did not include a legal examination of the transaction contradicts the terms of the contract for the provision of real estate services, according to which the realtor was obliged to prepare the necessary documents for the proper execution of the transaction. As a result of the unprofessional actions of the realtor, expressed in not requesting from the seller a certificate of the amount of paid share contributions to the housing cooperative, the plaintiffs did not acquire rights to the property, and D. A. Utemov suffered real damage in the amount of <...> rubles, confirmed by receipts for the receipt - cash orders.
In connection with this, in connection with the improper provision of services, damages in the amount of <…> rubles are subject to recovery from the defendant in favor of Utemov D.A. (decision of the Zheleznodorozhny District Court of Yekaterinburg, Sverdlovsk Region dated November 6, 2012 in case No. 2- 2368/2012).
It should be borne in mind that in the framework of this court case, as well as in other court cases where citizens act as plaintiffs, court decisions contain references to relations related to the provision of intermediary services by legal entities and individual entrepreneurs in the market of transactions with real estate (real estate services, consisting, in particular, in the selection of options for real estate for their subsequent purchase and sale, rental by citizens for purposes not related to business activities, assistance in concluding purchase and sale transactions for these citizens and other transactions in relation to real estate , organizing the sale of real estate on behalf of these citizens), is subject to the Law of the Russian Federation dated 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights” (Resolution of the Plenum of the Armed Forces of the Russian Federation dated 06/28/2012 No. 17).
However, most often the amount of compensation for losses from the actions of realtors is limited to the cost of the service itself, i.e., the amount that the realtor received from the client at one time [See: Kratenko M.V., Khomukhina T.V. Limits of a realtor’s property liability for improper provision of services // Law and Economics. 2005. No. 9. P. 14–15].
Draft law on real estate activities in the Russian Federation
Speaking about the need for legislative regulation of real estate activities, it should be noted that in 2012, the draft Federal Law “On Real Estate Activities in the Russian Federation” was put up for wide discussion [URL: https://www.rgr.ru/Guild/Rule/draftlaw_rd/default .aspx], which was never adopted.
At the same time, the opinions of participants in the professional real estate market were divided. Thus, opponents of this law argue that in the current legislation there are quite enough provisions regulating real estate (intermediary, agent) activities (for example, chapters 49, 51 and 52 of the Civil Code of the Russian Federation), and the adoption of such a law will only lead to an increase in the cost of realtor services, i.e. because the latter will have to join the SRO without fail.
They also argue that the law on real estate activities is needed only by the Russian Guild of Realtors (RGR) and the heads of real estate agencies in order to deprive individual realtors of the opportunity to work independently.
It is also noted that real estate purchase and sale transactions are registered, as is known, not by realtors, but by registrars of the Federal Registration Service of the Russian Federation.
In the proposed version of the Federal Law “On Real Estate Activities in the Russian Federation,” relations related to the implementation by business entities of providing services for the purpose of transactions with real estate by individuals and legal entities were grouped into four groups:
– provision of services to the consumer for the sale or transfer to lease (hire) of real estate, which he has the right to legally dispose of; – provision of services to the consumer for the acquisition of real estate belonging to third parties into his ownership or use; – provision of consulting services and other paid services accompanying the civil circulation of real estate; – provision of services to the consumer for the management of real estate belonging to him.
We should agree with L. Sitdikova, who notes that the presented version of the sphere of real estate services is not entirely successful, because, firstly, it does not correspond to the existing OKVED classification, and secondly, it includes a number of services, the separate provision of which does not allow a realtor to identify himself from the position of the profession itself [See: Sitdikova L.B. Petrova E.S. Legal nature and place of real estate services in the system of civil obligations under the legislation of the Russian Federation // Legal World. 2012 No. 12 // SPS " Consultant Plus"].
Agency agreement for the provision of real estate services
The described document, regardless of the name of the services provided, will be an agency document. This is explained by the fact that the real estate agency specialist will not act on his own behalf, but on behalf of the conditional customer.
On the contrary, if the customer issues a standard power of attorney, then such an agreement will no longer be considered an agency agreement.
But such a scheme is used very rarely, and it is only appropriate if an individual is forced to leave their conditional place of residence and, accordingly, the place where the service is provided for a long period. The previously specified sample is also an agency agreement.
