advance a "punitive" functions can not be held.In view of this party breaching the contract of sale will lose the advance amount.It turns out that these concepts are similar, but entail different legal consequences.
deposit is applied in cases where the seller wants the apartment to protect themselves.For example, if the other party, iethe buyer refuses to deal.Thus, the money given as a deposit under certain circumstances can be returned.
Firstly, it should be returned if the contract of sale will stop because of the impossibility of performance or by agreement of the parties.This applies to situations where the amount paid as a deposit is returned, if the deal is terminated due to circumstances for which are not responsible neither party.
Secondly, non-compliance by the parti
es with the legal requirements for registration of the agreement on the deposit.It is necessary to remember the correct preparation of the document, with the right legal terms (for example, to know about the difference between the terms advance and deposit).IeIt should not be a substitute for each other, of the contract, the terms "deposit", "advance", "bail".
During contract or receipts when you make the transfer of money parties often indicate that the funds are transferred as collateral, rather than as a deposit.This is wrong, as the object of pledge can not be money.Therefore, the amount transferred can not be defined either as a pledge, asit is contrary to the essence of the collateral or a deposit, as there is no direct indication of the fact that this amount - deposit.
Tip 2: How to return the deposit for an apartment
you have made an advance payment for an apartment , but the seller has changed his mind to go to the deal or even disappeared in an unknown direction.What to undertake in this case, and where to go to get the money back?
Check out the documents in the apartment .You must make sure that the seller is its owner.If he is married, ask him to show certified consent of the spouse (wife) to conclude the sales transaction.If an apartment a few owners, they will be required to sign and preliminary contract, and the contract of deposit.A person acting by proxy to the collection of documents, not the seller and can not, therefore, have to take any money without a warrant and to advance .Better if it will not be a friend or relative of the landlord and real estate agent.
Since the contract of deposit, concluded under the terms of the preliminary agreement is not legally binding, ask after the deposit payment receipt to the seller, in the event of its failure, you could return the money myself.The receipt must indicate the period of refund.Vague wording: "The receipt is considered to be extinguished at the time the principal amount of apartment », and so n. May be rejected by the court as invalid.
If the preliminary contract states that the seller is obliged to return the advance payment in double size, it is possible only if you enter into a transaction through a real estate agency which will regulate these offsets.
If the seller refuses to refund you filed a claim and receipts to the court.In your claim will necessarily be approved, if the seller can not prove that it has issued as a result of fraud or threat on your part.Therefore, you will need to submit to the Court evidence that the money had been transmitted and received by mutual consent.It will be quite enough, and the preliminary purchase and sale agreement signed by the seller.
If you do not have a receipt, you can also apply to the court for illicit enrichment and seller gain, this time more serious evidence (extracts from bank accounts, witness statements).
search for the missing seller if your going to court will FSSP.
often side, implying a deposit, indicate in the contract of sale of the apartment to deliver cash - advance payment or an advance.As a result of this error, apply the rules of the deposit will not be.
If the contract is not fulfilled the party which gave the deposit, it will be the other party.If in default of the contract to blame the party that received the deposit, it will be obliged to pay the other side of it a double amount.
- "Civil Code of the Russian Federation (Part One)" from 30.11.1994 N 51-FZ (ed. By 06.12.2011)
- how to return the deposit