Ways to return the advance if the transaction does not go through

The deposit is a kind of guarantee that the buyer is serious and the purchase and sale transaction will go through without any disruptions. Many citizens are interested in the question of how to return the deposit for an apartment.

By making such an obligation, the buyer gains a number of significant advantages, for example, if the transaction does not take place for some reason, then in this case the amount of money will be returned in full. There is no need to cancel the fact that when returning the deposit, in some cases, legal proceedings are possible.

The second scenario is possible, for example, if the buyer refuses to carry out the purchase and sale transaction. In this case, the seller may refuse to return the deposit. The third option implies when the reasons for refusal are justified, for example, illness. In this situation, the seller can make concessions and return the funds. But for this it is necessary to stipulate this requirement in the contract. If the contract does not contain this clause, all that remains is to appeal to the highest court.

Next, the concept of a deposit and its differences from other forms of providing guarantees expressed in monetary terms will be discussed in detail. The reasons why the deposit may be returned and the registration procedure will also be discussed.

Deposit and advance: the difference

First you need to understand the concepts of deposit and advance. Many people confuse these concepts, believing that they are identical.

In fact, there is a significant difference between them and it is as follows:

Typically, the buyer pays a deposit before the sales contract is concluded. An advance is characterized by another feature - it is paid when the contract has already been signed;
at the legislative level, an advance does not imply strict sanctions. The buyer may demand that the seller return it at any time, and the reasons that led to this decision are not taken into account;
It should also be noted that an advance is not a form of forced purchase of housing.

Difference from deposit

Can you return it by receipt? If you are purchasing an apartment yourself and do not want to deal with realtors, then you will not be able to draw up a competent preliminary agreement and down payment. In this case, all agreements and prepayments can be made by receipt. It states:

If the transaction does not take place due to the buyer’s fault, the deposit remains with the seller irrevocably

(the norm mentioned above applies). Those. if the buyer’s intentions change for the housing for which he paid a deposit, this amount is considered to belong to the seller.

When should you use a deposit?

A deposit is usually a form of preliminary agreement. Thanks to it, the parties to the transaction can provide themselves with guarantees.

The deposit agreement is concluded in the following cases:

a tailgate is necessary when the buyer does not have the required amount, but the property is completely suitable for him and he needs to find the missing part of the funds. An example in this situation could be the following case: entry into the right of inheritance of real estate, collection and execution of documents for obtaining a housing loan;
you need to contact specialized departments to obtain information about the property you are looking for, for example, a certificate from the Unified State Register;
the seller did not have time to register ownership of the property and needs time to collect the necessary documents. This situation also includes debt obligations for public services. You should not buy a living space where there is a debt for housing and communal services and take the seller’s word about the subsequent repayment of the debt.

This type of obligation is regulated by the Civil Code of the Russian Federation, Articles 380 and 381.

How not to return the Advance for an Apartment to the Buyer

If this does not help, then a statement of claim is filed with the judicial authorities at the place of registration or registration of the owner of the apartment. Copies of all documents are attached to the application:

When signing such an agreement, the real estate agency is not responsible for the failure of the transaction and if the owner refuses to sell the apartment, it will return the entire amount to you. If you refuse, you must write a claim.

Claim for refund (read more...)

When is the deposit required to be returned?

It is worth noting that any real estate transactions are supported by a contract. According to legal regulations, the deposit must be transferred to one of the parties after signing the preliminary agreement. The agreement must be drawn up correctly; it is best to look at a sample on specialized Internet resources. It requires indicating the value of the property, the amount of the deposit, conditions, requirements and liability for failure of the transaction.

In the agreement, it is worth paying attention to the clause when the tailgate needs to be returned, the reasons for this may be the following:

force majeure circumstances;
in case of bank refusal to issue a housing loan;
unsatisfactory financial situation

Additional criteria for deposit return:

the deposit is returned if the parties have reached this decision as a result of negotiations;
if the buyer can prove with irrefutable facts that the seller is a fraudster. For example, the fact that a seller sells an apartment that is not his property may be considered fraudulent;
the seller refuses to provide the buyer with information about the sought-after property, deliberately concealing reliable data.

It should be noted that if the seller refuses to fulfill the obligations specified in the contract, sanctions will be imposed on him. One of these measures is a double refund.

Return if the buyer fails the deal

If the transaction did not take place due to your fault and you want to return the advance payment, then you apply for a refund to the owner of the apartment.
The seller returns the money voluntarily, and all preliminary agreements and agreements are terminated. In this case, each participant remains in his own interests. However, the seller may not return the advance and not issue documents, citing the fact that since you paid the money, you are obliged to buy the apartment. In this case, you must send a written notice requesting a refund of the advance.

preliminary agreement;
advance agreement;
receipt;
notice or note of delivery of this demand.

Note: All documentation is submitted in triplicate. One is sent to court, the other remains with the plaintiff, and the third is transferred to the defendant.

There are situations when the seller deliberately includes a non-refundable advance clause in case of refusal to purchase an apartment. The trick of such an agreement is that obligations are imposed only on the buyer, and the owner is not responsible for the failure of the transaction. If you go to court, then in this case you may lose the case, since you yourself signed the agreement.

also demand monetary compensation for late repayment of the advance (Article 381) . Typically, such requirements are specified in the preliminary agreement. Court proceedings can last more than one hearing and all legal costs are borne by the losing party.

Court

The judicial practice of the Supreme Court of the Russian Federation suggests that if the party to the contract does not want to return the deposit, then this act can be classified as unjust enrichment. It is worth noting that forced return is only one of the measures of influence; in addition, a sanction will be applied, which provides for the recovery of funds for the use of other people's money.

IMPORTANT !!! If there is a trial, you need to prepare for it. It is required to attach documents that confirm the transfer of the deposit. It is best to seek help from a professional lawyer who will assess the situation from a legal position and make a report for the court on the actions taken by the parties from the moment of discussing the terms of the upcoming transaction until the time of signing the preliminary agreement.

If all the necessary documentation is attached and correctly compiled, the court, during the consideration of the civil case, will study the circumstances and take the side of the victim.

How to get it back from a realtor or real estate agency?

If the owner of the apartment lives in another city, he can entrust the sale of the property to a real estate agency. At the same time, he enters into an agreement with him for the provision of intermediary services, provides copies of the passport and title documents for the residential premises.

In this case, you will deal with realtors who will draw up a preliminary agreement and an advance agreement. After signing, a certain amount of money is made as an advance payment and the agency director takes it against receipt for temporary storage.

Attention! A real estate agency can only enter into a preliminary agreement with you and issue an advance payment in the form of an advance payment. The deposit can only be received by the apartment owner or an agency on the basis of a notarized power of attorney.

The realtor will try to include in the preliminary contract a clause on the non-return of the entire amount of money (advance payment) in case of refusal to purchase the apartment. He will warn you about this in advance, since he does not need subsequent proceedings that could affect his reputation. By signing this agreement, you agree that in case of refusal to purchase an apartment, the advance payment remains with the agency.

However, if you change your mind about buying an apartment and would like to return the amount paid, you can file a claim in court . An advance payment does not bear the financial responsibility of the parties and the introduction of a clause on non-refund of money is contrary to legislative norms (Article 421, 422 of the Civil Code of the Russian Federation).

In this case, you can count on a positive outcome of the case, but it is better to think about everything in advance before signing documents and depositing money.

Is it possible to return the deposit paid for an apartment?

The deposit paid by the future buyer for residential premises in an apartment building can be returned. This financial guarantee is used in transactions with land, houses and apartments.

With its help, the parties consolidate an agreement on the purchase and sale of real estate, thereby telling each other that they are satisfied with everything and they will not look for other options. With the help of transferred funds, stability is brought to this market segment.

Attention! A seller who refuses to sell the property to the person who gave the deposit returns it in double amount. The buyer who reports that the transaction will not take place does not receive the deposit back (clause 2 of Article 381 of the Civil Code).

In what case will the deposit be returned in double amount?

The owner has found a buyer for his car. They agreed on a price with him, and the latter handed over the deposit. While the future owner was collecting the missing amount, the owner sold it to a third party who offered more money. In this case, the seller violated the agreement, for which he is obliged to return double the amount of the deposit.

Another situation may arise: the buyer refused to purchase the car for which he paid a deposit. In this case, the transaction is declared invalid, and the seller retains the funds as compensation.

The Civil Code regulates the procedure for returning the deposit in the event that one of the parties violates the preliminary agreement (clause 2 of Article 381). In any case, the party that refused to complete the transaction shall compensate the losses of the other party in an amount equal to the amount of the deposit.

In what cases is a deposit given?

A deposit is a certain type of advance payment that is made in money. One party transfers or transfers to the other an agreed amount as security for the conclusion of the sales contract.

deposit agreements free in word format

The most common deposit is in transactions with land, houses and apartments.

If the terms of the agreement are violated by the seller or buyer, the culprit will receive compensation. The transfer of funds is carried out only with the signing of a written agreement on the payment of a deposit.

The legislation of the Russian Federation does not provide for a fixed amount or percentage of the deposit. The value is agreed upon by the parties or announced by the seller. In most cases, it is 5–10% of the cost of the planned transaction.

The role of the deposit in the upcoming transaction is as follows:

the seller receives in advance part of the amount for the property, which must go to the buyer,
establishes certain obligations of the parties, for violation of which liability is provided. As a result, both the seller and the buyer are confident that the transaction will take place on the agreed terms. This makes relationships more stable.

ATTENTION! View the completed sample deposit agreement:

Differences between a deposit and an advance

The reasons for termination of a housing purchase transaction usually arise during negotiations between the parties.
For example, the buyer finds out that registered residents remain in the apartment. Although they are not an obstacle to the transaction, the buyer may not be satisfied with this, since the seller should have removed all tenants from the register. And then the deal can be terminated with the admission of guilt by the seller. We strongly advise buyers of apartments and houses to seek advice from real estate specialists before signing an agreement (agreement) on an advance payment or deposit and before paying the advance payment amount. The safest option is to work out the deposit agreement until it best suits the interests of the buyer with the professional lawyers named above.