Concept - under a real estate sale agreement, the seller undertakes to transfer ownership of a land plot, building, structure, apartment or other property to the buyer real estate, and the buyer undertakes to accept this property and pay the price determined by the parties for it.

The contract for the sale of real estate is characterized as consensual, bilateral and mutual.

The essential terms of a contract for the sale of real estate include conditions on the subject of sale and the price of the property being sold. movable property.

This agreement stands out as an independent type of purchase and sale agreement for subject - real estate:

Land plots with negotiability - land and others Natural resources can be transferred only to the extent determined by land laws;

Subsoil areas that are immovable due to physical properties, and everything that is firmly connected to the earth, i.e. objects, the movement of which without proportionate damage is not possible;

Subject state registration air and sea ​​vessels, inland navigation vessels and space objects;

Residential premises are isolated premises that are immovable and suitable for permanent residence citizens, that is, meets established sanitary and technical rules and regulations, and other legal requirements;

Non-residential premises inside buildings;

Enterprises like Property Complex;

Objects of unfinished construction - rights to objects of unfinished construction are registered on the basis of special documents: a document on the right of ownership or right of use; building permit; project documentation; documents that contain a description of the unfinished construction project.

The law requires that the contract for the sale of real estate contain data that makes it possible to definitely identify the real estate to be transferred to the buyer under the contract, including data defining the location of the real estate on the relevant plot of land or as part of other real estate. In the absence of the specified data in the contract, the condition regarding the real estate being sold and subject to transfer is considered inconsistent, and the contract is not concluded. The list and nature of documents containing data that make it possible to definitely identify the real estate being sold is determined by the legislation on state registration of rights to real estate and transactions with it and the legislation on the technical accounting of real estate.

Subjects of the real estate sale agreement:

Seller And buyer under a real estate purchase and sale agreement there can be both legal and individuals. It should be borne in mind that the charter or special regulations of the law entity Restrictions may be imposed on the acquisition and alienation of real estate. For example, in most cases, the sale of expensive real estate is big deal, for which the seller - Joint-Stock Company- must comply with the requirements of joint stock legislation for such transactions.

By general rule the owner of the real estate may act as the seller. The seller may also be a person authorized by the owner by virtue of law or contract.

The contract for the sale of real estate must be concluded in writing form by drawing up one document signed by the parties. Non-compliance established form a contract for the sale of real estate entails its invalidity.

The transfer of ownership of real estate from the seller to the buyer is subject to state registration. Therefore, the buyer's ownership of real estate arises on the basis of a complex legal structure - a concluded contract for the sale of real estate and an act of state registration of the transfer of ownership.

Therefore, if the parties to the agreement stipulate the condition that the obligations for the transfer of real estate and its payment must be fulfilled by the parties before the state registration of the transfer of ownership, then each of the interested parties can demand their fulfillment.

Until the state registration of the transfer of ownership, the seller, who has fulfilled the obligation to transfer the real estate into the possession of the buyer, retains the authority to protect the right of ownership. Therefore, the real estate seller can file vindication and negatory claims.

In the absence of a condition price the contract for the sale of real estate is considered unconcluded. As a general rule, the price of real estate located on a land plot agreed upon by the parties includes the price of the corresponding part of the land plot or the right to it transferred with this real estate. However this rule dispositively. The price of real estate in a real estate sale agreement can be determined by the parties different ways. In cases where the price of real estate is set per unit of its area or other indicator of its size, the total price of such real estate payable is determined based on the actual size of the real estate transferred to the buyer.

Execution of a real estate sale agreement. The procedure for transferring ownership and risks to the buyer. Rights to the land plot under real estate. Features of selling residential premises

Execution of a real estate sale agreement:

Salesman must hand over, A buyer must accept real estate under a deed of transfer or other transfer document. A deed of transfer or other transfer document is required as a mandatory requirement to register the transfer of ownership of the sold property. Failure of one of the parties to sign a document on the transfer of real estate is considered a refusal of the seller to fulfill the obligation to transfer the property, and the buyer - of the obligation to accept the property. Consequently, the other party has the right to demand compensation for losses or seizure of the thing.

Salesman must transfer the property of proper quality. When transferring buildings and structures that are complex in engineering and technical terms, the parties may stipulate that a prerequisite for the proper fulfillment of the transfer obligation is that the seller, at his own expense, carry out control and verification activities at his own expense to determine the quality condition of the property, engineering communications, information networks etc., serving this object.

If the defects of the goods were not specified by the seller, the buyer to whom the property of inadequate quality was transferred has the right, at his own discretion, to demand from the seller:

A proportionate reduction in the purchase price;

Free elimination of product defects within a reasonable time;

Reimbursement of your expenses to eliminate product defects.

In the event of a significant violation of the requirements for the quality of the goods, the buyer has the right to refuse to fulfill the purchase and sale agreement and demand a refund of the amount paid for the goods sum of money. The buyer does not have the right to demand the replacement of low-quality real estate with high-quality, homogeneous real estate. This exception is explained by the fact that the property is an individually defined thing, which excludes the possibility of its replacement due to the nature and essence of the obligation.

Acceptance by the buyer of real estate that does not comply with the terms of the contract is not a basis for releasing the seller from liability for improper performance of the contract.

Buyer must pay real estate. The form, procedure and method of payment are determined by the parties to the agreement independently. The law allows payment for purchased real estate in installments and on credit, as well as advance payment. When selling real estate on credit, such real estate is recognized as being pledged to the seller to ensure the buyer fulfills his obligations to pay for the goods.

If the obligation to pay is not fulfilled, the seller has the right to demand payment for the real estate and payment of interest for the use of other people's funds.

The contract for the sale of real estate is concluded in writing by drawing up one document signed by the parties (clause 2 of Article 434).

Failure to comply with the form of the contract for the sale of real estate entails its invalidity.

Commentary to Art. 550 Civil Code of the Russian Federation

1. The commented norm is limited to a simple written form of a contract for the sale of real estate. It should be recalled that the Civil Code of the RSFSR of 1964, without operating with such a category as “real estate,” established an imperative rule on the need to notarize contracts for the purchase and sale of residential buildings.

Currently, the decision to use or not to use a notarial form of a real estate sale agreement is made by the parties.

2. Despite the fact that, as a general rule, a written form of agreement is possible in different types(see Article 434 of the Civil Code), the commented article establishes the requirement for one document expressing its content and signed by the parties (or their authorized representatives).

3. In para. 2 of the commented article indicates that failure to comply with the form of the contract for the sale of real estate entails its invalidity. However, for the validity of real estate transactions, the following conditions must also be met.

Firstly, it is necessary that the content of the transaction does not contradict the law. In particular, transactions aimed at the alienation of objects are unacceptable common use office building(for example, a technical basement) or an apartment (for example, a kitchen).

Secondly, the parties must have legal capacity and capacity. Since a transaction is a volitional action, only legally capable citizens can perform it. It is obvious that if a citizen does not have full legal capacity, then the sale of real estate belonging to him (or acquisition) is carried out by his legal representative (on behalf of minor, incapacitated citizens) or with the written consent of the legal representative of citizens aged 14 to 18 years or citizens with disabilities competent by the court. Legal entities can also be parties to a transaction, taking into account the specifics of their legal status, for example, enterprises based on the right of economic management or operational management, with restrictions on their disposal of real estate.

Thirdly, it is necessary that the alienator owns the property by right of ownership. If the alienator is a state or municipal organization, then the object must belong either to state and municipal enterprises with the right of economic management, or to state and municipal enterprises. municipal institutions, as well as state-owned enterprises with the right of operational management. Lawful possession, use and disposal of real estate is confirmed by a title document - a sales agreement, a transfer agreement, etc.

Fourthly, it is necessary that the will of the participant in the transaction corresponds to his actual will, i.e. the understanding of the transaction must be correct, and its execution must be voluntary.

Fifthly, as already indicated, it is required written form of these transactions in the form of one document.

Sixth, state registration of contracts for the sale of real estate (for example, contracts for the sale and purchase of residential premises, etc.) is mandatory in cases where provided by law. According to paragraph 1 of Art. 165 of the Civil Code of the Russian Federation, failure to comply with the requirement for state registration of a transaction entails its invalidity. It is necessary to distinguish the state registration of the transfer of ownership of real estate from the state registration of an agreement. “Double” state registration of both contracts for the sale and purchase of residential premises and the transfer of ownership under such contracts, as well as some other transactions with real estate and the transfer of rights to it, was relevant in transition period development of the legislation of the Russian Federation and the formation of legal conditions for civil turnover real estate, when citizens faced numerous fraudulent activities when making transactions with residential premises. Currently, the necessary conditions have been created to eliminate the requirement for state registration of contracts for the purchase and sale of residential premises while maintaining the existing requirements for state registration of the transfer of rights to any real estate property, including a residential property.

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Cm. explanatory note to the draft Federal Law N 121907-5 “On Amendments to Part Two of the Civil Code of the Russian Federation” (in terms of eliminating the requirement for state registration of certain contracts). Introduced by deputies of the State Duma of the Federal Assembly of the Russian Federation P.V. Krasheninnikov, V.S. Gruzdev, A.G. Nazarov, O.D. Galtsova // SPS “ConsultantPlus”.

If you deviate from these conditions, the transaction is considered invalid.

A transaction that is invalid due to its recognition as such by a court is recognized as voidable, for example, transactions made by persons with limited legal capacity or minors aged 14 to 18 years (Articles 175 and 176 of the Civil Code), as well as under the influence of violence or threat (Article 179 GK).

4. A transaction that is invalid regardless of court decision, is void, for example, transactions made by persons incompetent or under the age of 14 years (Articles 171 and 172 of the Civil Code) or made without the intention of creating corresponding legal consequences (clause 1 of Article 170 of the Civil Code).

In Art. 168 of the Civil Code of the Russian Federation establishes the principle of classifying transactions as one or another category of invalidity if the law does not indicate that the transaction is contestable. Transactions that do not comply with the law or otherwise legal acts, are recognized as insignificant.

The contract for the sale of real estate is concluded in writing by drawing up one document signed by the parties (clause 2 of Article 434).

Failure to comply with the form of the contract for the sale of real estate entails its invalidity.

Comments to Art. 550 Civil Code of the Russian Federation

1. Of all the methods of concluding an agreement provided for in Art. 434 of the Civil Code, in relation to the contract for the sale of real estate, only one was chosen. Such an agreement is concluded in the form of one document signed by the parties, with a mandatory statement of the conditions provided for in Art. Art. 554, 555 Civil Code. For a real estate sale agreement, compliance with a notarial form is not required.

In accordance with Art. 7 of the Introductory Law pending the entry into force of the Federal Law on the registration of rights to real estate and transactions with it for contracts provided for in Art. 550 of the Civil Code, the rules on their mandatory notarization, established by law before the entry into force of part two of the Civil Code, remain in force (for example, the purchase and sale of a residential building, dacha - Article 239 of the Civil Code of 1964). It should be noted that in Moscow, in accordance with information letter Moscow Property Committee and the Moscow City Notary Chamber dated March 15, 1994 when concluding contracts of sale, exchange, etc. buildings, structures, non-residential premises their notarization is required (Bulletin of the Moscow City Hall. 1994. N 5. P. 63 - 64).

2. The commented article contains special consequences of non-compliance with the simple written form of the transaction, which differ from the general consequences of paragraph 1 of Art. 162 Civil Code. Failure to comply with the written form of a real estate purchase and sale agreement entails its invalidity with the application of the consequences of the invalidity of a void transaction (Clause 2 of Article 162, Articles 166 - 168 of the Civil Code).

Under the contract for the sale of real estate (real estate sale agreement), the seller undertakes to transfer into ownership of the buyer a plot of land, building, structure, apartment or other real estate (), and the buyer undertakes to accept this property and pay for it the price determined by the parties (clause 1 of article 549, clause 1 Article 454 of the Civil Code).

By its legal nature real estate sale agreement:

• • consensual (gives rise to civil rights and obligations from the moment the parties reach an agreement; the subsequent transfer of a thing or the commission of other actions is carried out for the purpose of their execution);
  • compensated;
  • bilateral (generates obligations on both sides);
  • synallagmatic (mutually binding, each of two reciprocal obligations is a condition for the other; mediates the exchange of reciprocal obligations-provisions).

Subject of the real estate sale agreement

The concept of the subject of the contract

Subject of the agreement purchase and sale - an object of the material (thing, property) or intangible (information) world, to which the will of the contracting parties is directly directed or directly connected and which is sufficiently individualized to distinguish it from other objects.

Since the subject of the contract can be not only an individually defined thing, but also a generic one, in this case the degree of individualization of the object should allow it to be distinguished from things of another generic affiliation.

However, the transfer of ownership of real estate from the seller to the buyer in accordance with clause 1 of Art. 551 of the Civil Code is subject to state registration. Therefore, ownership of the property arises from the buyer based on a complex legal structure, namely:

1. 1. concluded agreement (transaction) for the sale of real estate and
   2. act of state registration of transfer of ownership.

When selling residential premises, the legal structure also includes registration of the purchase and sale agreement itself, which is considered concluded from the moment of such registration (clause 2 of Article 558 of the Civil Code) (the rule on state registration of transactions with real estate contained in Article 558 , does not apply to contracts concluded after March 1, 2013 year (Federal Law of December 30, 2012 N 302-FZ).

Read more about registering agreements and property rights

Although the contract for the sale of real estate in itself does not give rise to ownership rights for the buyer, however, being an element of a complex legal structure, the contract legally binds the seller and the buyer from the moment of its conclusion. Since the contract for the sale of real estate is consensual, to the extent that the seller and the buyer agree that the obligations for the transfer of real estate and its payment must be fulfilled before the state registration of the transfer of ownership, each of the interested parties has the right to demand their fulfillment.

At the same time, according to paragraph 2 of Art. 551 of the Civil Code, the execution of a contract for the sale of real estate by the parties before the state registration of the transfer of ownership is not the basis for changing their relations with third parties. This means that a concluded and executed contract for the sale of real estate precludes the seller’s right to dispose of the sold property in the future, because by concluding an agreement for its alienation and transferring this property to the buyer, the seller exhausts the power of disposal that belonged to him as the owner. Therefore, any subsequent transaction made by the seller after the transfer of real estate to the buyer in pursuance of a previously concluded sales agreement, but before the state registration of the transfer of ownership to the buyer, void as committed by an unauthorized person. Judicial practice also proceeds from the fact that after the transfer of real estate the seller does not have the right to dispose of it to the buyer, since the specified property is the subject of an obligation fulfilled by the seller arising from the sale agreement, and the buyer is its legal owner.

Until the state registration of the transfer of ownership, the seller, who has fulfilled the obligation to transfer the immovable object into the possession of the buyer, retains the right to protect his property rights. Therefore, he can file vindication and negatory claims. The buyer who immovable object transferred into possession in pursuance of a contract for the sale of real estate before state registration of the transfer of ownership, becomes its title owner and also has the right to defend his possession with proprietary claims. However, not having ownership title, he, unlike the seller, cannot dispose of the real estate acquired in possession.

A contract for the sale of real estate, as an element of a complex legal structure, gives rise to a civil obligation of the parties to register the transfer of ownership. The content of this obligation includes the right to demand registration of the transfer of ownership. This obligation is supported by an appropriate sanction. According to paragraph 3 of Art. 551 of the Civil Code, in the event that one of the parties evades the state registration of the transfer of ownership of real estate, the court has the right, at the request of the other party, and in cases provided for by law RF about enforcement proceedings, also at the request of the bailiff, make a decision on state registration of the transfer of ownership. A party that unreasonably evades state registration of the transfer of ownership must compensate the other party for losses caused by the delay in registration.

The requirement for state registration of the transfer of ownership of real estate under a real estate sale agreement applies to cases of sale of both non-residential and residential real estate. Therefore, state registration of a residential real estate purchase and sale agreement does not exclude the need for separate state registration of the transfer of ownership under such an agreement.

If the purchase and sale agreement for residential premises is concluded and executed before the state registration of the transfer of ownership, then the seller is deprived of the legal opportunity to carry out any transactions regarding such premises transferred under the contract; therefore, all subsequent transactions with such residential premises are invalid.

• 1. about the subject of sale and
  2. about the price of the real estate being sold.

The law requires that the contract for the sale of real estate contain data that makes it possible to definitely establish the real estate to be transferred to the buyer under the contract, including data that determines the location of the real estate on the corresponding land plot or as part of other real estate . In the absence of the specified data in the contract, the condition on the real estate being sold and subject to transfer is considered inconsistent, and the contract is not concluded (Article 554 of the Civil Code).

More details

The data required by law about the property being sold is contained in special documents. Mandatory documents identifying land plots include their cadastral plans, issued by the bodies responsible for cadastral registration of land plots. Documents containing data that make it possible to individualize a separate building (structure) include:

• • plan of the land plot indicating its cadastral number,
  • floor plans, explication of the premises located in the building, etc.
  • passports of premises, as well as relevant certificates issued by the bureau technical inventory and containing inventory information and other data technical accounting housing stock (plan of residential premises, its explication, etc.) (Articles 17 and 18 of the Law on Registration of Rights to Real Estate).

In contrast to the contract for the sale and purchase of movable property, the contract for the sale of real estate must contain agreed by the parties in writing condition on the price of real estate. If there is no condition on the price, the contract for the sale of real estate is considered not concluded (clause 1 of Article 555 of the Civil Code). Real estate appraisals are carried out by professional appraisers.

As a general rule, the price of real estate located on a land plot agreed upon by the parties includes the price of the corresponding part of the land plot or the right to it transferred with this real estate (clause 2 of Article 555 of the Civil Code). However, this rule is optional. In addition, the law may establish other rules regarding the relationship between the price of real estate and the price of the corresponding part of the land transferred with the real estate and the rights to it.

Property price in a real estate sale agreement can be determined by the parties in various ways. In cases where the price of real estate is set per unit of its area or other indicator of its size, the total price of such real estate to be paid is determined based on the actual size of the real estate transferred to the buyer (clause 3 of Article 555 of the Civil Code).

The main obligation to be fulfilled by the seller and the buyer is in the transfer of real estate by the seller and its acceptance by the buyer under the transfer deed or other transfer document (clause 1 of Article 556 of the Civil Code). The above imperative norm establishes legally binding real estate transfer procedure. Evasion of one of the parties from signing a document on the transfer of real estate on the terms provided for by the agreement, is considered a refusal by the seller, respectively, to fulfill the obligation to transfer the property, and the buyer - from the obligation to accept the property.

The signing by the parties of a transfer deed or other transfer document, along with the actual transfer of real estate, is a mandatory condition that allows us to speak about the fulfillment of the obligation to transfer and accept real estate. At the same time, in cases provided for by law or contract, this obligation to transfer real estate will be considered fulfilled upon the occurrence of additional legal facts (paragraph 2, paragraph 1, article 556 of the Civil Code). For example, the parties may include in the contract a condition according to which the seller’s obligation to transfer property will be considered fulfilled only when he:

1. 1. sign the deed of transfer;
   2. will actually transfer the real estate;
   3. will pay the costs of state registration of the transfer of ownership to the buyer.

When transferring buildings (structures) or apartments that are complex in engineering and technical terms, the parties may stipulate that a prerequisite for the proper fulfillment of the obligation to transfer is the seller, at his own expense, carrying out control and verification activities to determine quality condition of the real estate object, utilities, information networks serving this object, etc.

Along with the obligation to accept the purchased property main responsibility The buyer under the contract for the sale of real estate is obligated to pay for it. The form, procedure and method of payment are determined by the parties to the agreement independently. The law allows payment for purchased real estate in installments and on credit, as well as advance payment. When selling real estate on credit in accordance with clause 5 of Art. 488 of the Civil Code, such real estate is recognized as being pledged to the seller to ensure the buyer fulfills his obligations to pay for it. According to Art. 20 of the Mortgage Law, a mortgage arising on the basis of clause 5 of Art. 488 of the Civil Code, is registered without submitting a separate application simultaneously with the state registration of the property rights of the person whose rights are encumbered by the mortgage.

The parties to a contract for the sale of real estate bear the same mutual property liability as the parties to a contract for the sale of movable property, with the following exceptions:

1. 1. Acceptance by the buyer of real estate that does not comply with the terms of the contract, including in cases where such non-compliance is stipulated in the document on the transfer of real estate, is not a basis for releasing the seller from liability for improper execution of the contract (clause 2 of Article 556 GK);
   2. when the seller transfers real estate to the buyer with a significant violation of the terms of the contract on the quality of real estate, the buyer does not have the right to demand the replacement of low-quality real estate with high-quality, homogeneous real estate (Article 557 of the Civil Code) due to the nature and essence of the obligation (clause 3 of Article 475 of the Civil Code).

IMPORTANT! A contract for the sale of real estate can be terminated both before the state registration of the transfer of ownership, and after such registration, provided that it is not fulfilled by the parties in in full. State registration of the transfer of ownership is not an obstacle to the termination of an executed contract for the sale of real estate in cases where the law or contract provides for the possibility of terminating the contract with the return of what the parties received on the grounds provided for in Art. 450 of the Civil Code, including in connection with non-payment by the buyer of the property.

To terminate a real estate purchase and sale agreement, the fact that the seller or buyer refuses the contract is not enough, since such a fact in itself cannot serve as a basis for registering a reverse transfer of ownership to the seller. It is necessary to apply to the court, which must make a decision containing an order to the registration authority to register the transfer of ownership from the buyer to the seller due to termination of the contract. The court can make such a decision only if in the contract for the sale of real estate the parties stipulated the possibility of returning what was performed before the termination of the contract(clause 4 of article 453 of the Civil Code).

Very interesting case law regarding non-payment

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights."

The buyer did not pay for the apartment in full or did not transfer a penny at all. Essential? Probably, after all, the apartment is being sold precisely to receive money that the seller intends to spend on own needs. But the courts don't think so.

Situation: the parties entered into the simplest agreement for the purchase and sale of an apartment. The agreement and transfer of ownership are registered in the Unified State Register of Rights to Real Estate and Transactions with It. Now, according to the law, the seller is not the owner, and the buyer is the new owner of the apartment. The buyer moved into the apartment and lives in it, although he never paid for the apartment. The seller filed a lawsuit to terminate the sales contract and return the apartment to him. The basis for the claim is a significant violation by the other party of its obligations, namely non-payment for the purchased apartment. It would seem that the fact that the buyer violated his obligations is obvious. And for the seller such a violation is significant. But the court decided this issue differently. Resolving the dispute on the merits, the court proceeded from the conclusion that the legal, that is, provided for in clause 1 (material violation of the terms of the contract) and clause 2 (other grounds provided for by law or contract) of Art. 450 of the Civil Code of the Russian Federation, there are no grounds for terminating the contract for the purchase and sale of an apartment, including on the basis of the materiality of the violation of the contract by one of the parties. The court pointed out that the Civil Code of the Russian Federation does not contain provisions allowing the termination of a purchase and sale agreement and the cancellation of the buyer's ownership of the property due to his failure to pay the purchase price. The mere fact of non-payment cannot be interpreted as a significant violation of the terms of the contract. Such materiality must be proven. According to the court, the consequences of the buyer's failure to pay funds are specifically provided for in the law. They are as follows: the seller has the right to demand payment for the goods and additional payment of interest in accordance with Art. 395 of the Civil Code of the Russian Federation (Clause 3 of Article 486 of the Civil Code of the Russian Federation) (Determination of the Supreme Court of the Russian Federation dated 06/07/2011 No. 5-B11-27). This point of view was previously reflected in paragraph 65 of the resolution of the plenum Supreme Court Russian Federation and the plenum of the Supreme Arbitration Court No. 10/22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other real rights”, which states that when resolving disputes related to the termination of contracts for the sale of real estate, which carried out state registration of the transfer of ownership rights to buyers, the courts must take into account the following: If the buyer of real estate registered the transfer of ownership rights, but did not pay for the property, the seller, on the basis of clause 3 of Art. 486 of the Civil Code of the Russian Federation has the right to demand payment under the contract and payment of interest in accordance with Art. 395 of the Civil Code of the Russian Federation.

Conclusion: in order not to find yourself in such a situation, you need to competently draw up a purchase and sale agreement. IN in this case, it was necessary to stipulate in the contract that if the buyer fails to pay money for the purchased residential premises (specify the deadline by which payment must be made, payment procedure), the contract is subject to termination. In this case, the court would side with the seller and make a decision to terminate the purchase and sale agreement, since this would fall under clause 2 of Art. 450 of the Civil Code of the Russian Federation, namely the case of termination of the contract on the grounds provided for in the purchase and sale agreement.

3.2

2.2.1. Subject of the agreement

2.2.2. Contract price

2.3.1. Title documents

2.3.2. Information about the encumbrances of the apartment

2.3.3. Conditions for vacating the apartment

2.3.4. Payment procedure under the agreement

4. State registration of transfer of ownership under a real estate purchase and sale agreement

1. The concept of essential terms of the contract

First, a little theory about the terms of contracts. According to Article 432 of the Civil Code of the Russian Federation, a contract is considered concluded if an agreement is reached between the parties on all essential terms of the contract. Thus, the code divided the terms of the contract into two groups: essential conditions and other (they can be called additional) conditions.

The essential conditions are:

- conditions on the subject of the contract,

- conditions that are named in the law or other legal acts as essential or necessary for contracts of this type,

- all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

If the parties to the contract have not reached an agreement on the essential terms of the contract, and the contract does not contain the essential terms, then by law the contract is considered not concluded.

2. Terms of the real estate purchase and sale agreement

Real estate sale agreement. What conditions should it contain?

Under a real estate purchase and sale agreement (real estate sale agreement), the seller undertakes to transfer real estate into the ownership of the buyer, and the buyer undertakes to accept this property and pay for it the price agreed upon by the parties.

The contract must contain:

- information about each party to the contract,

- all essential conditions, in the absence of which the contract will be considered not concluded,

— as well as other conditions.

2.1. Information about each party to the contract

The real estate purchase and sale agreement must include information about each party to the transaction.

For individuals:

— passport details,

- registration address,

Date and place of birth.

If at least one of the parties is entity, indicate the name, INN, OGRN, legal address organizations.

If the contract is concluded not the property owner or buyer b, then the agreement specifies the grounds on which the specified person(s) acts on their behalf.

This can be a power of attorney: notarized, if the agreement is signed by an individual; drawn up in simple written form, if the agreement to which a legal entity is a party is signed by an authorized individual.

The power of attorney must indicate the appropriate powers: to conclude a purchase and sale agreement, receive payment or make payment under a purchase and sale agreement, as well as accept or transfer real estate with the right to sign a transfer deed.

If the party to the contract is under 14 years of age or incompetent citizen, then the agreement is concluded on his behalf by his parents, adoptive parents or guardians.

If the parties to the contract are a minor aged 14 to 18 years or a citizen with limited legal capacity, then they sign the agreement independently with the written consent of the parents, adoptive parents or guardian. In these cases, you will need permission from the guardianship and trusteeship authority to conduct the transaction.

2.2. Essential terms of the real estate sale agreement

2.2.1. Subject of the agreement

2.2.2. Contract price

2.2.3. List of persons retaining the right to use residential premises

The essential terms of the real estate purchase and sale agreement include:

- Subject of the agreement,

— Contract price,

— And for residential premises - a list of persons retaining the right to use residential premises.

2.2.1. Subject of the agreement

The contract for the sale of real estate must contain data that makes it possible to definitely identify the real estate to be transferred to the buyer under the contract, including data that determines the location of the real estate on the relevant land plot or as part of other real estate.

If we are talking about an apartment sale agreement , That:

The contract must necessarily indicate:

- name of the residential premises - apartment,

— number of rooms,

- address of the residential building in which the apartment is located,

- common and living areas.

In addition, other identifying features of the apartment may be indicated: floor, entrance, number of levels of the apartment, number of storeys of the entire building, etc.

All this information is reflected in the cadastral and technical passports provided by the BTI or Rosreestr authorities.

The contract should also reflect the condition of the apartment, the presence and condition of the property that remains in the apartment, technical equipment, etc. (this can be drawn up in the form of an annex, which is an integral part of the contract).

Let us note one more important point.

To take to tax deduction expenses for finishing the purchased apartment, it is necessary that the agreement on the basis of which the apartment was purchased contains a condition on the acquisition of the apartment without finishing.

2.2.2. Contract price

The price also refers to the essential terms of the sales contract. And accordingly, as we said earlier, if there is no condition on the price of real estate agreed upon in writing by the parties in the contract, the contract for its sale is considered not concluded.

The contract price is indicated in rubles, but may be indicated in the ruble equivalent of the amount determined in foreign currency or in conventional monetary units.

The contract may specify a price per unit of area, and therefore the price of real estate is determined based on its area.

2.2.3.List of persons entitled to use the apartment

According to paragraph 1 of Art. 558 of the Civil Code, which establishes the specifics of the sale of residential premises, in addition to the subject and price, an essential condition of the contract for the sale of a residential building, apartment, part of a residential building or apartment in which reside persons who, in accordance with the law, retain the right to use this residential premises after its acquisition by the buyer, is a list of these persons indicating their rights to use the residential premises being sold.

These persons, according to the law, may be:

a) the tenant of the residential premises and the citizens permanently residing with him;

b) a citizen who is a subtenant of residential premises, within the validity period of the rental agreement (Article 677 of the Civil Code of the Russian Federation).

c) a person who has the right to lifelong use of residential premises by way of testamentary refusal (Article 33 of the Housing Code of the Russian Federation);

d) the recipient of the annuity under a lifelong maintenance agreement with dependents, if the agreement stipulates his residence in this residential premises (clause 1 of Article 602, clause 1 of Article 586 of the Civil Code of the Russian Federation);

e) the borrower under an agreement for the gratuitous use of residential premises within the validity period of the agreement (Clause 1, Article 700 of the Civil Code of the Russian Federation).

The existence of the right of third parties to reside and use the alienated residential premises is a very important circumstance that the buyer of this residential premises should be aware of, since this right is a kind of encumbrance on the right to use the alienated residential premises and can serve as a circumstance in which the purchaser may refuse altogether from concluding a deal.

Thus, when alienating residential premises, the contract must indicate the right of the person who lives in it to use this residential premises; otherwise, the contract cannot be concluded, since an agreement has not been reached on all essential terms.

The ideal option is that at the time of concluding the purchase and sale agreement for an apartment, there are no individuals in it at the place of residence or place of stay, and also that there are no persons who, in accordance with the law, retain the right to use this residential premises after its acquisition by the buyer.

2.3. Necessary conditions of a real estate purchase and sale agreement

2.3.4. Conditions for the release of real estate from the property of the seller, the procedure and terms for the transfer of the property by the seller to the buyer

2.3.5. Payment procedure under the agreement

The following terms and conditions of a real estate purchase and sale agreement are not essential, but are definitely necessary.

2.3.1. Date and place of conclusion of the contract

The real estate purchase and sale agreement must indicate the date and place of conclusion of the agreement.

2.3.2. Title documents

The contract must indicate information about the title documents for the property:

- on the basis of which the apartment was purchased (purchase and sale agreement, court decision, participation agreement shared construction and so on.),

- type of ownership of the seller,

— details of the document confirming the seller’s ownership, namely the Certificate of Title.

2.3.3. Information about encumbrances of the property

In the apartment purchase and sale agreement, it is advisable to provide for a condition that there are no arrests, pledges, litigation in relation to the property and other restrictions.

2.3.4. Condition for the release of real estatefrom the seller’s property, the procedure and timing of transfer by the seller of the property to the buyer

If you are purchasing real estate, in particular an apartment, in which the seller and members of his family continue to live at the time of signing the sales contract, the contract must provide for a period during which they will move out of the apartment, remove the property and be deregistered at this address .

The transfer of real estate by the seller and its acceptance by the buyer are carried out according to a transfer deed or other transfer document signed by the parties (Part 1, Article 556 of the Civil Code of the Russian Federation). Unless otherwise provided by law or contract, the seller’s obligation to transfer real estate to the buyer is considered fulfilled after the delivery of this property to the buyer and the signing of the relevant transfer document by the parties.

Failure of one of the parties to sign a document on the transfer of real estate on the terms stipulated by the contract is considered a refusal, respectively, of the seller’s obligation to transfer the property, and the buyer’s refusal of the obligation to accept the property.

2.3.5. The procedure for settlements under a real estate sale agreement

Let us dwell in more detail on the procedure for settlements under a real estate sale agreement.

Currently in the real estate market there are four main methods of settlement under a real estate purchase and sale agreement.

Method 1. Letter of credit form of payment

This method of calculation consists in the fact that the buyer of real estate first enters into an agreement with the bank, on the basis of which an amount equal to the value of the property is deposited into the bank account. At the moment when the apartment seller presents to the bank the document agreed upon by the parties when drawing up the letter of credit, for example, an extract from the Unified state register rights to real estate and transactions with it, in which the buyer is indicated as the owner of the real estate, the bank transfers to the seller the amount due to him (Clause 1 of Article 867 of the Civil Code of the Russian Federation).

Letters of credit are:

— irrevocable (Article 869 of the Civil Code of the Russian Federation). This type of letter of credit implies that the bank cannot cancel the obligation to pay the amount specified in the letter of credit without the consent of the recipient of the funds. For the seller, it is preferable to open an irrevocable letter of credit;

- revocable (Article 868 of the Civil Code of the Russian Federation). This type of letter of credit does not contain an unconditional obligation of the bank towards the seller and can be canceled or amended without the prior consent of the recipient of funds. Unless otherwise stated, a letter of credit is considered revocable.

Banks may charge a fee for opening a letter of credit, the amount of which is usually determined as a percentage of the letter of credit amount.

Method 2. Using a safe deposit box

This method is as follows.

The seller, buyer and bank draw up an agreement, on the basis of which the bank leases a safe deposit box for storing funds. Next, the buyer, in the presence of the seller, places money in the cell. The rental period for the cell is indicated taking into account the expected period of state registration of the transfer of ownership of the property.

Conditions for access to the cell are pre-agreed. For a certain time after placing money in the safe deposit box, only the seller has the right to open it by presenting, for example, an extract from the register of rights to real estate and transactions with it stating that ownership of the real estate has transferred to the buyer.

After the expiration of this period, the seller’s right to access the locker without a buyer is terminated. In this case, the buyer will have access to the box upon presentation of his passport in the absence of the seller and the opportunity to take the money back.

However, it is important for the buyer, in turn, to receive a receipt from the seller that the seller has received funds. To do this, the seller and buyer, as a rule, rent a second safe deposit box from the bank, the conditions of access to which are mirrored in relation to the conditions of access to the safe deposit box with money. That is, for a certain period of time, the buyer has access to the locker upon presentation of a certificate of ownership of the apartment, and then if the transaction does not take place, the seller has access and takes his receipt from the locker.

Method 3. In cash without using a safe deposit box or using payment orders in settlements

These methods are also quite common today.

However, the use of cash payments or non-cash payments by transferring funds by the bank on behalf of the buyer to the seller’s account entails the following risks:

1) if the buyer transfers (lists) cash at the time of signing the contract before registering the transfer of ownership, there is a risk that registration will be refused. The buyer in such a situation may find himself without money and real estate;

2) if the parties have agreed to make payments after registering the transfer of ownership, there may be a risk that the buyer, whose ownership of the property has already been registered, for some reason may not pay the established amount to the seller. In this case, the seller will find himself without real estate and without money.

Thus, payments using a letter of credit and payments using a safe deposit box are safer methods of payment when making a real estate purchase and sale transaction.

Method 4. Using an escrow bank account

This method involves the buyer of real estate opening a so-called escrow account with a bank for settlements under a real estate purchase and sale agreement.

To do this, the buyer of the property deposits an amount equal to the value of the property into an escrow account.

The bank blocks the funds in the escrow account until the obligations under the real estate purchase and sale agreement in whose account the funds are placed are fulfilled. At the moment when the real estate seller presents to the bank, for example, an extract from the Unified State Register of Rights to Real Estate and Transactions with it on the buyer’s ownership, the bank gives the seller the amount due from the escrow account.

The owner of the escrow account cannot dispose of the funds in the account. In fact, such an account is intended only for storing the buyer’s funds and transferring them to the seller upon the occurrence of circumstances specified in the real estate purchase and sale agreement.

If the transaction does not take place, then upon expiration of the escrow account agreement, the account is closed and the funds from the account are returned to the buyer of the property, unless otherwise provided by agreement between the seller and the buyer.

2.4. Other conditions of the real estate purchase and sale agreement

In addition to the above conditions, the contract for the sale of real estate may also contain other conditions, for example, a condition on the liability of the parties, a condition on the procedure for resolving disputes under the contract, a condition on confidentiality, and others.

3. Form of real estate purchase and sale agreement

A real estate purchase and sale agreement is drawn up in simple written form in the form of a single document signed by the parties. Failure to comply with the form of the real estate purchase and sale agreement entails its invalidity. It is also necessary to pay attention to the fact that the law does not provide for mandatory notarization of a real estate purchase and sale agreement.

However, the parties may voluntarily provide for notarization of the apartment purchase and sale agreement, reflecting this condition directly in the contract itself. But, we repeat, this is a right, not an obligation of the parties.

For some reason, there is an opinion that notarization of a contract gives additional protection deal, however, this is not the case.

4.4. State registration of transfer of ownership under a real estate purchase and sale agreement

The transfer of ownership of real estate under a real estate sale agreement to the buyer is subject to state registration.

In accordance with the Civil Code of the Russian Federation, state registration of rights to real estate is a legal act of recognition and confirmation by the state of the occurrence, restriction (encumbrance), transfer and termination of rights to real estate.

Consequently, the buyer’s ownership of the real estate acquired by him arises from the moment of its state registration (clause 2 of Article 223 of the Civil Code of the Russian Federation).

If a transaction requiring state registration is completed in the proper form, but one of the parties avoids registering it, the court has the right, at the request of the other party, to make a decision on state registration of the transaction. In this case, the transaction is registered in accordance with the court decision.

In conclusion, I would like to note that a real estate purchase and sale agreement, which contains all legal requirements and maximally protects the seller and buyer, is a complex document.

Well, don’t forget to consult with lawyers involved in supporting real estate transactions, so that before you sign a real estate sale agreement, you have full information about the terms of this agreement and have an idea of ​​how your transaction will go. Good luck!

Boytsova E. A.

Lawyer of the Moscow Bar Association

"Center for Legal Expertise"