Sale and purchase agreement: judicial practice. Buying real estate: how to pay for it correctly (analysis of judicial practice) (Chakinsky A.)

Article 454 of the Civil Code of the Russian Federation. Contract of sale

1. Under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.
2. The provisions provided for in this paragraph apply to the purchase and sale of securities and currency values, unless special rules for their purchase and sale are established by law.
3. In cases provided for by this Code or other law, the specifics of the purchase and sale of certain types of goods are determined by laws and other legal acts.
4. The provisions provided for in this paragraph apply to the sale of property rights, unless otherwise follows from the content or nature of these rights.
5. For certain types of purchase and sale agreements (retail purchase and sale, supply of goods, supply of goods for government needs, contracting, energy supply, sale of real estate, sale of an enterprise), the provisions provided for in this paragraph apply, unless otherwise provided by the rules of this Code on these types of contracts.

Compulsion to conclude a purchase and sale agreement for non-residential premises

ARBITRATION COURT OF MOSCOW

In the name of the Russian Federation

(extraction)

The operative part of the decision was announced on January 22, 2007.
The full text of the decision was made on January 29, 2007.
The arbitration court composed of presiding judge N., the protocol was conducted by assistant judge P.G.N., with the participation of: from the plaintiff - B. (ex. dated 01/17/2007 b/n), from the defendant - P.Yu.V. (ext. dated 01/09/2007 N 07/05-7), from the 3rd person - A. (ext. dated 11/16/2006 N D-06/3343), having considered the case on the claim of Luna LLC against SGUP for the sale property of the city of Moscow, 3rd party - DIGM, on compulsion to conclude a purchase and sale agreement,

INSTALLED:

Luna LLC filed a claim with the court against the State Unitary Enterprise for the sale of property in Moscow to force the defendant to enter into a purchase and sale agreement for non-residential premises with an area of ​​525.6 square meters. m (floor 1, room II, rooms 1, 2, 2a, 3, 3a, 3b, 4-9, 9a, 9b, 10 - 14, 14a, 15, 15a, 16, 16a, 17, 17a, 19 , 23, 23a, 24, 25), located at the address: Moscow, st. Perovskaya, 10, bldg. 1, priced at RUB 6,628,894. on the terms of the draft agreement attached to the claim, referring to the creation of the company in the process of privatization of the property of studio No. 37 and the use of real estate on a lease basis.
The defendant rejected the demand, citing the absence of a corresponding order from the DIGM, stated that there was no application from the plaintiff for the redemption of real estate before the expiration of the period provided for in paragraph 13 of Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, and on the impossibility of purchasing real estate after two years from the date of entry into force of this Law, and also challenged the redemption price of the property proposed by the plaintiff.
The 3rd party considers the demands to be unlawful, pointing out that the provisions of the real estate lease agreements regarding the right to buy out this property became invalid as of April 27, 2004, and that the lease agreement dated February 15, 1995 N 4-108/95, concluded with the plaintiff, does not provide for the possibility of redemption leased property, stated that the market price of the real estate in respect of which the claims were made is currently RUB 34,235,593.
Contesting the arguments of the defendant and the third party, the plaintiff referred to the established judicial practice on such disputes (Resolution of the Federal Antimonopoly Service of the Moscow Region dated October 4, 2006 N KG-A40/9151-06).
Having examined the submitted documents and heard the persons involved in the case, the court finds the claims subject to satisfaction due to the following circumstances.
Luna LLC is the legal successor of Luna Firm LLP, created during the privatization of studio No. 37 at the address: Moscow, st. Perovskaya, 10, building 1.
In accordance with the privatization plan, approved by the decision of the Territorial Agency of the Higher Administrative Okrug of the Moscow State Property Committee dated April 10, 1992 No. 6, Luna LLP, under the purchase and sale agreement dated November 4, 1992 No. 04-00239/92, purchased the fixed and working capital of the studio.
The privatization plan and agreement dated November 4, 1992 N 04-00239/92 provide for the lease of studio premises to the partnership with the right to buy them out after one year.
Rental use of studio premises with an area of ​​527.9 sq. m formalized by agreement dated February 15, 1995 N 4-108/95 between the Moscow Property Committee and the partnership.
As a result of the redevelopment of the premises, permitted by order of the head of the Perovo district administration of the city of Moscow dated March 25, 2004 N 109, the area of ​​the rented premises changed and amounted to 525.6 square meters. m.
The lease agreement dated 02/15/1995 N 4-108/95 was concluded, as expressly stated in its text, on the basis of the purchase and sale agreement dated 04/11/1992 N 04-00239/92, therefore there is no provision in it regarding the right of the tenant to purchase the occupied premises does not mean that the plaintiff is not subject to the provisions provided for in paragraph 13 of Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property.”
In accordance with paragraph 13 of Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property” if all the property of a state or municipal enterprise, with the exception of the building or non-residential premises in which this enterprise was located, was acquired before the entry into force of Chapter IV of Part first of the Civil Code of the Russian Federation with the simultaneous conclusion of a lease agreement providing for the possibility of purchasing such a building or premises, the specified building or non-residential premises is subject to sale to the owner who has purchased all the property of the enterprise at market value.
The plaintiff applied with an application for the sale of the leased premises to the Moscow City Property Department, authorized to make decisions on the sale of property of the city of Moscow, 04/06/2004 (entry No. 70-124/04) - before the expiration of the established two-year period for exercising the right to purchase the premises.
The market value of the premises rented by the plaintiff during this period was 6,628,894 rubles, which is confirmed by the assessment report N 04-0117-0044/04-1, compiled by PBOYUL Z. on the instructions of DIGM.
The plaintiff cannot bear negative consequences due to the rise in price of real estate during the period when the DIGM evaded making a decision to sell the property, therefore the redemption price of the property should be determined based on its market price at the time the plaintiff filed an application for redemption.
The objections of the defendant and the 3rd party are presented without taking into account the established judicial practice (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 04.10.2006 N KG-A40/9151-06), and therefore are subject to rejection.
The costs of the state fee must be attributed to the defendant, but he is exempt from paying it, therefore the state fee paid when filing a claim must be refunded.
Guided by Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, Art. Art. 8, 12, 195, 196, 199, 200, 217, 432, 445 Civil Code of the Russian Federation, art. Art. 65, 104, 105, 110, 167, 170, 173, 176, 180, 181 Arbitration Procedure Code of the Russian Federation, court

oblige the State Unitary Enterprise for the sale of property in Moscow to conclude a purchase and sale agreement with Luna LLC for non-residential premises with an area of ​​525.6 square meters. m (floor 1, room II, rooms 1, 2, 2a, 3, 3a, 3b, 4 - 9, 9a, 9b, 10 - 14, 14a, 15, 15a, 16, 16a, 17, 17a, 19 , 23, 23a, 24, 25), located at the address: Moscow, st. Perovskaya, 10, bldg. 1, priced at RUB 6,628,894.
Return 2,000 (two thousand) rubles from the federal budget to Luna LLC. state duties.
The decision can be appealed within a month to the arbitration court of appeal.

Collection of debt and interest for the use of other people's funds under a surety agreement concluded for the purpose of executing a real estate purchase and sale agreement

ARBITRATION COURT OF MOSCOW

In the name of the Russian Federation

The operative part was announced on October 8, 2007.
The date of production of the decision in full is October 12, 2007.
Moscow Arbitration Court consisting of:
Chairman: A.
court members: individually
when keeping the minutes by judge A.
with the participation of representatives:
from the plaintiff: B. - pas.
from the defendants: P. - ud. 8926, ex. dated 03/22/2007 ex. dated March 22, 2007, G. - pas., dov. dated June 19, 2007, ex. dated June 19, 2007, ex. dated May 25, 2007
considered the case on the claim of RAMENKA LLC
to American Traders LLC; LLC "Seventh Point"; LLC Shop N 40 "Sollolaki"
on the collection jointly and severally of RUB 52,171,895. 01 kop.
The court explained procedural rights and obligations, as well as the right to challenge the case, the right to consider the case with the participation of arbitration assessors, to refer the dispute to an arbitration tribunal, the right to contact a mediator to resolve the dispute, and to enter into a settlement agreement.
The court session was adjourned from 10/03/2007 to 10/08/2007.

installed:

the claim was filed for the recovery from the defendants jointly and severally of 52,171,895 rubles. 01 kopecks, amounting to 49,181,415 rubles. 69 kopecks debt and 2,990,479 rubles. 32 kopecks interest for the use of other people's funds until March 27, 2007, due to failure to fulfill agreement No. 1/2006-3 dated June 30, 2006.
The case is being considered after the abolition of the FAS MO.
By decision of the Moscow Arbitration Court dated March 30, 2007, 52,171,895 rubles were jointly and severally recovered from the defendants. 01 kop., including: 49,181,415 rub. 69 kopecks debt and 2,990,479 rubles. 32 kopecks percent, as well as 100,000 rubles. expenses for paying state duty.
By Resolution of the Federal Antimonopoly Service of Moscow dated July 6, 2007 N KG-A40/6200-07, the court decision in case No. A40-59341/06-89-469 dated March 30, 2007 was canceled and the case was transferred for a new trial. This resolution states that the court did not examine clause 3.2, according to which the guarantor is not responsible to the creditor for the fulfillment of the debtor’s obligation secured by this agreement, in the event that, through the fault of the creditor, a purchase and sale agreement for the property is not concluded between the creditor and the guarantor. Taking into account the above, the court of first instance must take into account the above and adopt a legal and justified judicial act in the case.
The plaintiff supported the claims. The defendant objected to the satisfaction of the claim on the grounds set out in the response.
Following the instructions of the FAS Moscow Region, having examined the case materials, having listened to the arguments of the plaintiff’s representative, and having assessed the evidence presented, he believes that the claims must be satisfied on the following grounds.
As can be seen from the case materials, agreement No. 1/2006-3 dated June 30, 2006 was concluded between the plaintiff, defendant American Traders LLC and Seventh Continent LLC (case files 39 - 40).
By clause 5 of agreement 1/2006-3 dated June 30, 2006, the former owner (defendant American Traders LLC) agreed to return the amount of unaccounted advances to the tenant (plaintiff in this dispute).
Clause 2 of agreement No. 1/2006-3 dated June 30, 2006 established that the amounts of advance payments not counted as rent under lease agreement No. 02/2002 dated January 28, 2002; N 01/2002 dated January 28, 2002; N 01/2004/E dated September 30, 2004, are indicated in the reconciliation act No. 1/AT dated June 30, 2006, signed between the defendant American Traders LLC and the plaintiff Ramenka LLC.
From paragraph 1.3. reconciliation act No. 1/AT dated June 30, 2006, it is seen that the total amount of unaccounted advances is 49,181,415 rubles. 69 kopecks, including: 22,940,486.11 rubles. uncredited advance payment under lease agreement No. 02/2002 dated January 28, 2002, RUB 24,516,252. 74 kopecks uncredited advance payment under lease agreement No. 01/2002 dated January 28, 2002 and RUB 1,724,676. 82 kopecks, unaccounted advance payment under lease agreement No. 01/2004/E dated September 30, 2004.
In order to ensure the fulfillment by the defendant, American Traders LLC, of ​​its obligations under Agreement 1/2006-3 dated June 30, 2006, surety agreements were concluded.
Surety agreement No. 1/2006-P dated June 30, 2006, concluded between the plaintiff - RAMENKA LLC and the defendant Sedmaya Tochka LLC and surety agreement N 1-1/2006-P dated June 30, 2006, concluded between the plaintiff - LLC "RAMENKA" and the defendant LLC Store No. 40 "Sollolaki".
In accordance with the terms of the specified guarantee agreements, the guarantors (defendants in this dispute) - LLC Store N 40 "Sollolaki" and LLC "Sedmaya Tochka" - undertook to answer to the creditor (plaintiff) for the fulfillment by the defendant - LLC "American Traders" of monetary obligations arising from agreement dated June 30, 2006 No. 1/2006-3 in the same amount as the debtor (defendant) American Traders LLC, but not limited to, payment of interest, reimbursement of legal costs for debt collection and other losses of creditors in full caused by non-fulfillment or improper fulfillment of obligations by the debtor and transfer the amount of debt within 10 calendar days from the date of receipt of the creditor’s request (clauses 1.2 and 2.1 of the surety agreements).
In accordance with Art. 363 of the Civil Code of the Russian Federation, in case of non-fulfillment or improper fulfillment by the debtor of the security guarantee obligation, the guarantor and the debtor are jointly and severally liable to the creditor. The surety is liable to the creditor to the same extent as the debtor, including the payment of interest caused by the debtor's failure to fulfill or improper fulfillment of the obligation, unless otherwise provided by the surety agreement.
According to clause 1.3. guarantee agreements, the liability of the guarantors to the creditor is joint and several.
As can be seen from the case materials, the plaintiff sent telegrams to the defendants demanding payment of funds in the total amount of 49,181,415 rubles. 69 kopecks, which were received by the defendants on August 8, 2006, as confirmed by notifications of delivery of the telegram. In addition, the plaintiff sent registered letters to the defendants with similar demands.
The defendants did not respond to the plaintiff’s demands and did not repay the debt.
The court considers the plaintiff’s arguments justified and proven, while in accordance with Art. Art. 309, 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation; unilateral refusal to fulfill the obligation is not allowed.
The court cannot accept the defendants' arguments that the guarantors' obligations have ceased, since it was the plaintiff's fault that contracts for the purchase and sale of real estate were not concluded: under surety agreements dated June 30, 2006 No. 1/2006-P at the address: Moscow, Zelenograd , Savelkinsky proezd, 8 and dated 06/30/2006 1-1/2006-P at the address: Moscow, Leningradsky Prospekt, 78, bldg. 1. In addition, the defendants also refer to the fact that the surety agreements were concluded under a severable condition, which is provided for in clause 3.2. agreements from which it follows, as stated above, that the guarantor is not responsible to the creditor for the fulfillment of the obligation of the debtor (American Traders LLC) secured by this agreement, in the event that, through the fault of the creditor, purchase and sale agreements are not concluded between the creditor and the guarantors real estate objects.
The court cannot agree with the defendant’s arguments that these agreements were concluded under a severable condition.
In accordance with paragraph 2 of Art. 157 of the Civil Code of the Russian Federation, which the defendants refer to, according to which a transaction is considered completed under a severable condition if the parties have made the termination of rights and obligations dependent on a circumstance for which it is unknown whether it will occur or not. Thus, this rule says that the condition must be a circumstance depending on the will of the parties, that is, the parties cannot know whether this circumstance will occur or not. In addition, the conclusion of an agreement is, first of all, the will of the parties expressed in writing, thus the conclusion of purchase and sale agreements by the parties under surety agreements depends only on the will of the parties, based on the above, the defendants’ reference to clause 3.2. guarantee agreements are untenable.
At the same time, the condition of clause 3.2. agreement in terms of performance by the parties, the court considers that the fulfillment by the guarantors of the obligation under the surety agreements is made dependent not on the circumstances of the non-conclusion of the purchase and sale agreement, but on the fault of the creditor in their failure to conclude. According to the meaning and content of Art. 401 of the Civil Code of the Russian Federation - guilt (intention or negligence) is an element of liability and cannot relate to circumstances upon the occurrence of which the parties can establish the occurrence of any obligations. By virtue of paragraph 2 of Art. 157 of the Civil Code of the Russian Federation - the creditor’s guilt cannot be a circumstance that the parties do not know about and cannot know whether it will occur or not.
In accordance with paragraph 1. Art. 549 of the Civil Code of the Russian Federation - under an agreement for the purchase and sale of real estate (agreement for the sale of property), the seller undertakes to transfer into the ownership of the buyer a plot of land, a building, a structure, an apartment or other real estate.
In accordance with Art. 131 of the Civil Code of the Russian Federation, ownership and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination are subject to state registration in the Unified State Register of Rights to Real Estate and transactions with it; registration is subject to: ownership right, economic management right, operational right management, the right of lifelong inheritable possession, the right of permanent use, mortgage, easements, as well as other rights in cases provided for by this Code and other laws.
Having examined the documents presented by the parties, the court did not establish the creditor’s guilt before the guarantors in the failure to conclude purchase and sale agreements.
In accordance with Art. 65 of the Arbitration Procedure Code of the Russian Federation - each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections.
The defendants, in turn, did not provide evidence that the plaintiff did not intend to enter into sales contracts; on the contrary, the case materials presented correspondence between the parties, from which it is clear that Ramenka LLC intends to enter into sales contracts and also proposed to hold a meeting in in order to agree on a payment schedule
In connection with the above, the court considers the plaintiff’s claim to collect jointly and severally 49,181,415 rubles to be legitimate, justified and subject to satisfaction. 69 kopecks, since the plaintiff’s guilt in not concluding contracts has not been established, and refusal to fulfill obligations contradicts Art. Art. 309, 310 of the Civil Code of the Russian Federation, in this case from the defendants’ fulfillment of obligations under surety agreements in terms of debt payment.
In connection with non-payment of the debt, the plaintiff makes a demand for the collection of interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation in the amount of 2,990,479 rubles. 32 kopecks until March 27, 2007, based on the refinancing rate of the Central Bank of the Russian Federation of 10.5% per annum and asks to recover the specified amount from the defendants jointly and severally referring to clause 1.2. guarantee agreement.
The court considers the plaintiff's demand to collect from the defendants jointly and severally interest for the use of other people's funds in the declared amount of RUB 2,990,479 justified. 32 kopecks, since there was a failure to fulfill a monetary obligation by the defendants.
In accordance with Art. 110 of the Arbitration Procedure Code of the Russian Federation, the costs of state duty incurred by the plaintiff are subject to recovery from the defendants in full, since the demands stated in the claim are justified.
The court, guided by Art. Art. 8, 12, 131, 157, 307, 309, 310, 363, 395, 429, 549 of the Civil Code of the Russian Federation and Art. Art. 4, 65, 75, 49, 110, 121, 123, 156, 170 - 175 Arbitration Procedure Code of the Russian Federation,

A feature of purchase and sale agreements is the presence of a huge number of legal structures and types, ranging from retail purchase and sale agreements to purchase and sale agreements (contracts) of business assets, shares and participation interests (the subject of the latter is virtual in nature).

Concept of contract

A purchase and sale agreement (of goods) is a transaction in accordance with which the seller transfers the goods into the ownership of the buyer for the remuneration established by the agreement. Based on a review of judicial practice, the objects of contracts are considered to be the actions of the seller related to the transfer of ownership of the goods and the goods themselves, as well as the actions of the buyer, which indicate his acceptance and payment for the goods (Article 129 of the Civil Code of the Russian Federation).

The most common type of transaction in civil circulation is a retail purchase and sale agreement, which citizens carry out every day. In accordance with civil legislation (Article 168 of the Civil Code of the Russian Federation), the conclusion of retail purchase and sale agreements, as well as other types of transactions, the subject of which are goods limited in circulation, as well as prohibited for sale, is prohibited. Transactions that violate the above legal requirements may be declared invalid by a court of law.

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” sets out the legal position, according to which the rules for the sale of goods by business entities in which the buyer is citizens purchasing goods for personal needs (as a rule, these are retail purchase and sale agreements), the norms of the Civil Code of Russia and the Law of the Russian Federation of February 7, 1992 N 2300-I “On the Protection of Consumer Rights” are applied.

An example of judicial practice on a retail purchase and sale agreement, which explains the legal grounds for invalidating it:
The Perm Regional Court issued a ruling dated June 13, 2012 “On invalidating the retail purchase and sale agreement 33-4041,” in which the plaintiff was denied the claim. The basis for the refusal was the fact that the goods purchased under the sales contract (vacuum cleaner) were accepted by the buyer after its demonstration, and after making an advance payment under the contract, the remaining (full) amount for the goods was paid during the contract period. The presence of significant defects in the product or the impossibility of using it for its intended purpose were not supported by admissible evidence in court.

Invalidity of transactions

For some types of contracts, a written form is required (a contract for the sale and purchase of a car, real estate), failure to comply with which may be a legal basis for invalidating the contract.

Certain types of agreements, such as a real estate purchase and sale agreement, must be made in writing, and they are also subject to mandatory registration of the right to real estate, which is the subject of the agreement. Judicial practice suggests that a fairly large number of contracts are declared invalid in the absence of state registration of rights, since the law provides for the need to register rights to real estate.

As a review of judicial practice shows, great importance is attached to the expression of the will of the parties when making a transaction. If the agreement contains signs of an imaginary or feigned transaction (Article 170 of the Civil Code of Russia) and the implementation of the will is not aimed at achieving the legal consequences that are reflected in the transaction, for example, under a real estate purchase and sale agreement, then such a transaction may be declared invalid in court .

To complete a transaction that will have all the legal consequences associated with achieving the purpose of the transaction, the full legal capacity of the person who is a party to the contract is required. If it is proven that a party to the contract was an incapacitated person or one with incomplete legal capacity, such a transaction may be declared invalid. The court also has the right to: apply all legal consequences of the invalidity of the transaction under the purchase and sale agreement, while the parties to the agreement are brought to the original legal position that existed before the illegal transaction. This means that if, for example, an apartment purchase and sale agreement is declared invalid, the seller is obligated to return the entire amount of funds received under the agreement, and the buyer is obliged to return the apartment (land plot, real estate) to the seller.

Transactions that relate to contracts for the purchase and sale of real estate, the conclusion of which requires the consent of the guardianship and trusteeship authorities (Clause 2 of Article 37 of the Civil Code of Russia), without such consent are void. These categories of transactions include transactions that were made by a person with limited powers (Article 174 of the Civil Code of Russia), minors (Article 175 of the Civil Code of Russia), incompetent persons (Article 176 of the Civil Code of Russia), committed by citizens who cannot understand the meaning of their actions (Article 177 of the Civil Code of Russia).

A contract for the purchase and sale of real estate, a car, etc., made under the influence of a mistake, is recognized as invalid (Article 178 of the Civil Code of the Russian Federation). (Presidium of the Supreme Arbitration Court of the Russian Federation. Information letter dated December 10, 2013 N 162. Review of the practice of application by arbitration courts of Articles 178 and 179 of the Civil Code of the Russian Federation).

In the case where a preliminary agreement was concluded, which determined the further grounds for concluding the purchase and sale agreement, if the main agreement is declared invalid, the preliminary agreement is also invalidated. Preliminary agreements, as a rule, are concluded with the aim of ensuring that the main agreement will subsequently be concluded on time and on the terms determined by the preliminary agreement. This type of agreement does not give rise to rights and obligations that are reflected in the terms of the main agreement, therefore, there are no legal grounds to separately recognize a preliminary agreement as invalid if the main agreement has been concluded or executed in whole or in part.

Preliminary agreements are concluded as an intention to subsequently conclude a transaction for the purchase and sale of real estate (land, apartment, etc.), a car, supplies, rent, transportation, etc.

Based on the analysis of judicial practice in resolving disputes related to the execution or invalidation of contracts for the sale of a car, real estate, apartment, furniture and other property, the following conclusions can be drawn. A real estate purchase and sale agreement is a legal fact that establishes, changes or terminates a certain amount of civil rights and obligations. During its conclusion, the obligations of the parties include agreeing on all its terms, which the parties define as essential.

Execution of contracts

One example of a court decision concerning the issue of execution of contracts is case No. 33-10 dated January 12, 2012 (Voronezh Regional Court), according to which the plaintiff (the Company) filed a claim to recognize the refusal to fulfill the contract as lawful. In addition, a demand was made for the recovery of a sum of money related to losses, compensation for moral damage and penalties for failure to fulfill contractual obligations. The essence of the dispute was that, in accordance with the purchase and sale agreement for the car, warranty obligations were determined for it. After completing the purchase and sale agreement, as well as completing the transfer of the car, the plaintiff, in the process of using it, discovered certain shortcomings (engine noise) and some defects that were invisible during the initial inspection. The defendant accepted the car for warranty repairs, but the deficiencies pointed out by the plaintiff were not actually eliminated. On this basis, the plaintiff refused to execute the contract for the sale and purchase of the car and filed the above claims.

Since the obligation to provide evidence to the court as a substantiation of their legal position lies with the parties, and the purchase and sale agreement obliges each party to fulfill its obligations, then in order to refuse to perform the contract, subjects of law must be provided with sufficient legal grounds that justify the impossibility of its execution. As the court found, in this case the plaintiff did not provide admissible evidence that the car was unusable and that the contract for the sale and purchase of the car might not be fulfilled. On the above grounds, the court refused to satisfy the plaintiff’s claims in full.

The burden of proof in court proceedings

In most cases, when a dispute about invalidating a contract concerns contracts for the sale and purchase of a car, furniture, or movable property, in accordance with Art. 224 of the Civil Code of Russia, such agreements are considered executed at the moment of transfer of property and money to each other by the parties to legal relations. The basis for declaring these types of contracts invalid can only be the failure of one of the parties to fulfill its obligations. As judicial practice shows, in order to invalidate a car purchase and sale agreement, the presence of any defects in the car is not enough. A necessary condition for the specified legal grounds will only be the impossibility of using the car for its intended purpose. The same applies to other types of property, furniture or household items. The circumstances of the impossibility of using the property acquired under a sales contract for its intended purpose must be proven in court with the provision of acceptable evidence (forensic merchandising examinations, engineering and technical examinations, expert opinions). Testimony of witnesses cannot be evidence in these cases.

It is necessary to prove the moment from which the property became unsuitable for use for its intended purpose, or the formation of a significant defect in it.

Sales contracts are governed by the provisions of Art. 454 Civil Code of Russia. Contracts for the purchase and sale of real estate are considered not concluded when mandatory conditions are not specified in them (requirements of Articles 554, 555 of the Civil Code of Russia). In accordance with these articles, such conditions are the subject of the contract and its price.

Based on the analysis of judicial practice, property, real estate, or a car cannot be the subject of a purchase and sale agreement if it is under an encumbrance. In accordance with the procedure established by current legislation, if the encumbrance is registered in the State Register, then in order to complete the transaction, the removal of the encumbrance by the body or owner that imposed it must also be registered. Selling real estate with an encumbrance is a very rare type of transaction.

Important: With the acquisition of real estate, restrictions (encumbrances) are transferred to the new owner.

In the case where an apartment that is a common shared property is alienated and the encumbrance is imposed only on the share of one of the owners, only the shares that are not encumbered by the prohibition of sale are subject to alienation.

Based on the analysis of judicial practice, a fairly large percentage of decisions concern forcing one of the parties to a contract for the sale and purchase of an apartment, real estate, car or furniture to fulfill monetary obligations. One example of such decisions is the decision of the Sernursky District Court of the Republic of Mari El in case No. 2-106/2015-M-99/2015, according to which the claims of citizen XXX were satisfied and the debt was recovered from defendants 1 and 2 in the interests of the plaintiff agreement for the purchase and sale of an apartment in the prescribed amount.

The third practiced method of protecting the interests of the buyer, which is used when selling residential real estate at a reduced price, is legally more interesting and is as follows. The purchase and sale agreement includes a condition under which the seller undertakes to carry out pre-sale repairs of the apartment at the buyer’s expense. The cost of the buyer's expenses for repairs is equal to the difference between the real and the prices of the apartment indicated in the contract. The second receipt is written under this repair condition. Simultaneously with the seller issuing a receipt for receipt of money for repairs, the buyer signs an acceptance certificate for the work performed on a future date and that he has no claims for repairs. This act will protect the seller from an unscrupulous buyer if he demands back the funds transferred for repairs, based on the actual absence of repairs made.

Underestimation and overestimation of prices in a real estate purchase and sale agreement

A legal scheme with two receipts also entails legal risks for the seller, since the second receipt held by the buyer is evidence of the seller’s failure to pay taxes, and this threatens the seller with the collection of unpaid taxes, penalties, fines and criminal prosecution. In addition, if at the time of signing the contract the actual payment for the apartment was made only partially, and the remaining amount must be paid to the seller after submitting documents for state registration of the right and transaction (or after such registration), then an unscrupulous buyer after the fact of signing the contract has the right to the real price of the purchased not to pay for real estate, referring to the amount of their monetary obligation established solely by the terms of the purchase and sale agreement.
III.

Buying an apartment at a reduced price

Understatement of the contract price in a real estate purchase and sale agreement or overstatement of the price is a common situation in purchase and sale transactions. It’s nonsense, of course, but alas, these are the realities of our lives. ? Let us examine in detail in what situations one of the parties to the transaction asks for a lower price in the contract or an inflated price in the contract.

• Underpricing in the contract
  • Reasons for the seller to underestimate the price of an apartment
  • Why is underpricing dangerous for the Buyer?
  • Why is underpricing dangerous for the Seller?
  • Overpricing in the Sales and Purchase Agreement
  • Clarification of other difficult points

Buyers of real estate may be faced with an offer from the Seller to lower the price in the contract.

Understating the cost of an apartment

He goes to court with a claim to terminate the enslaving deal, because the price in the contract is less than the market price by more than 30%. The court satisfies the claim and obliges him to return the funds specified in the contract. Which is what he does. -And 1,700,000.0? -Excuse me, they do not apply to the apartment purchase and sale agreement! And this is another trial that will last for years.

Attention

Maybe three kopecks will be returned, who knows. Conclusion: Be very thoughtful about the proposal to lower the price. If this is not a very large amount, then you can draw up a contract for the sale and purchase of inseparable improvements or furniture.

Understatement of the value of real estate in a purchase and sale agreement

Secondly, upon termination of the contract, the buyer has the right to demand from the seller only the return of the amount paid for the apartment (clause 2 of Article 475 of the Civil Code of the Russian Federation) and compensation for losses caused by termination of the contract (clause 5 of Article 453 of the Civil Code of the Russian Federation), but not payment of a penalty in connection with the seller’s failure to fulfill its obligations, which served as the basis for termination of the contract. Thirdly, even if the court recognizes the buyer’s right to pay him a penalty, it will most likely apply Art.
333 of the Civil Code of the Russian Federation to significantly reduce the penalty due to its disproportion to the consequences of violation of the obligation. When compensating for losses, the buyer will also not fully return the money actually paid for the apartment, since his losses can only consist of an increase in prices for similar housing in a given area for the period from the moment of signing the contract until the moment of its termination. II.

Understatement of the amount in the purchase and sale agreement

The result is that my wife’s tax authorities either pay or we go to court. There is obviously nothing to pay with. Result - six months probation! How worried she was Evgeniy Palko Realtor June 25

2010

Info

Roman Fadeev wrote: From personal experience. The wife sold the apartment. On the receipt they wrote the full cost, on the DCP it was a million.

Error 404

Tax on the purchase of an apartment, property tax, taxes on individuals and organizations. How much taxes, when and how to pay and how to get a tax deduction (tax refund) when buying real estate.

I decided to buy an apartment, but the owner dumbfounded me: in the purchase/sale agreement, instead of 5 million rubles. we will write 2 million rubles, and in the receipt for the transfer of money we will write the full amount (5 million rubles). They say there are no risks, and that everyone works this way. Please write potential risks and, possibly, cases from real practice.

Thank you in advance for participating in the discussion. Nikolay Tyulenev Realtor Jun 25 2010 1. In the case of bilateral restitution, the court may not take into account the receipt and order you to return only the amount specified in the agreement.2.

Reduced price in a real estate purchase and sale agreement

From the point of view of the Tax Code of the Russian Federation, this option of contractual relations for the purpose of evading income tax is not ideal. The stumbling block is the repairs performed by the seller for the buyer.

If the work on pre-sale finishing of the apartment is carried out by the seller for a fee, then the cost of such repairs (so that an unscrupulous seller has no grounds to recover from the buyer the cost of the work performed) should be part of the cost of the apartment under the contract or part of the amount received by the seller for the second, “repair” , receipt. In any case, this will be the income of the seller, to which the tax deduction rules do not apply and on which income tax will have to be paid.

Understatement of the amount in the purchase and sale agreement

There are also situations when pre-paid transactions are disrupted even before their state registration, which can also lead to non-refund to the buyer of the entire amount actually paid by him. To reduce these risks to zero, realtors and lawyers offer a wide variety of legal mechanisms.

I. For example, it is proposed to include in the contract a clause on penalties for the seller in the event of termination of the contract due to his fault, where the amount of the penalty is equal to the difference between the amount actually paid and the amount under the contract. However, this scheme has its drawbacks. Firstly, this option is possible only upon termination of the contract, which, accordingly, must undergo state registration and be valid, since if the contract is null and void or due to its non-conclusion, any terms of the transaction are also void (unagreed).
Information close Information Please note that this is beta English version. Some pages may not be translated. If you experience difficulties, please contact our administrator: [email protected]. We will be happy to assist. Hello colleagues. The following question arose: if the parties indicate the price of a contract for the purchase and sale of real estate below the real one, how to effectively protect the interests of the buyer and prevent, in the event of problems with the transaction, the loss of the difference between the actual funds transferred and the formal price of the contract? keywords: real estate School of Law "STATUT" Legal seminars for professionals Practical issues of preparing and conducting court cases

• 21.05 – 15.06. Online
• Tai Yu.V., Shchekin D.M., Karapetov A.G. and etc

Bankruptcy of legal entities and citizens. Evening course

• May 22-July 4. Moscow
• Vitryansky V.V., Zaitsev O.R.

• When calling from the bank's security service, you will name the price specified in the contract, and not the real one
• All advertisements with the actual price will be removed from advertisement sites, otherwise the bank may have doubts and refuse to issue a loan.

Why is overpricing dangerous for the Seller?

• If you made a mistake regarding your income tax obligation, overestimation leads to an increase in the amount of deductions
• If the receipt is not destroyed, it may end up with the tax service, perhaps by mistake of the Buyer, or perhaps on purpose, and the consequences are unpredictable.
• If the contract is terminated by a court decision, the court will oblige you to repay the Buyer the entire amount specified in the contract.

In any case, changes in the actual price require a careful assessment of the situation!!! Always happy to clarify.
Article 556. Transfer of real estate 1. 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. 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 by the parties of the corresponding document on transfer. Evasion of one of the parties from signing a document on transfer of real estate on the terms stipulated by the contract is considered a refusal, respectively, by the seller of the obligation to transfer the property, and by the buyer of the obligation to accept the property.2.

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The correct word is “imprinting”.

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No. 54 “On some issues of resolving disputes arising from contracts regarding real estate that will be created or acquired in the future” was adopted.

1. Future real estate object acting as the subject of a purchase and sale agreement

Key clarification: the subject of the purchase and sale agreement for a future real estate property can be properly individualized even before it is created, registered and has not received a cadastral number.

In accordance with the provisions of paragraph 2 of Resolution No. 54, the absence in the contract of sale of real estate that will be created or acquired in the future, an indication of its cadastral number does not confirm the fact that the parties have not agreed on the disposal of the subject of the contract.

Judicial practice under purchase and sale agreements real estate was secured by clarifications given by the Plenum of the Supreme Arbitration Court of the Russian Federation. He pointed out that the subject of the purchase and sale agreement for a future real estate property can be individualized in other ways that make it possible to establish the real estate transferred under the agreement to the buyer. For example, this may be the approximate area of ​​the future building, the location of the object being built, the properties of the property defined in the project documentation. In addition, the Plenum of the Supreme Arbitration Court of the Russian Federation clarified the fact that this agreement cannot be recognized as not concluded even if it does not contain sufficient data to individualize the subject of the agreement, but they are, for example, in the act of acceptance and transfer of real estate under the agreement .

In accordance with paragraph 2 of Resolution No. 54, the territorial bodies of Rosreestr do not have the right in this situation to refuse to carry out state registration of a person’s rights to real estate and transactions with it. Thus, the Plenum of the Supreme Arbitration Court of the Russian Federation gave an expanded explanation to Article 554 of the Civil Code of the Russian Federation, which does not contain a specific list of methods for individualizing real estate objects for their sale. However, he did not indicate the mandatory registration of real estate in the Unified State Register at the time of conclusion of the contract. But, at the same time, the Supreme Arbitration Court of the Russian Federation specifically emphasizes that such agreements provide for the price of the property being sold, which can be established per unit of area or in another way (according to paragraph 3 of Article 555 of the Civil Code of the Russian Federation). In another case, the agreements will not be concluded (according to paragraph 1 of Article 550 of the Civil Code of the Russian Federation).

Paragraph 3 of Resolution No. 54 states that uncertainty regarding the subject of the purchase and sale agreement for a future real estate property may be considered grounds for recognizing the agreement as not concluded. But at the same time, the Supreme Arbitration Court of the Russian Federation provides several guidelines through which it becomes possible to establish the actual will of both parties. This can be done based on the provisions of the contract and other evidence in the case from the practice of relations between the parties and business customs.

It has been established that if there is no evidence of agreement between the parties when discussing the subject of the contract, the sales contract is considered not concluded.

If persons have evidence that confirms the fact that the agreement for the purchase and sale of a future property was concluded under the influence of a misconception about the individualization of its subject, the erring party may demand compensation for damage as a result of the agreement being recognized as not concluded. To do this, it is necessary to prove the presence of guilt in the actions of the seller selling the real estate.

2. Execution of the purchase and sale agreement future real estate

Key clarification: if the seller under the contract at the time of execution of the agreement does not own or does not act as the owner of such an object, he cannot be forced to fulfill the obligation, as well as state registration of the transfer of ownership to the seller himself.

The Plenum of the Supreme Arbitration Court of the Russian Federation pointed out two possible situations that could entail forced execution of the purchase and sale agreement future real estate property. In the event that the seller under the contract is not the owner or owner of the thing, he cannot be forced to take actions to create or acquire it. In accordance with paragraphs 3 and 4 of Article 487 of the Civil Code of the Russian Federation, the plaintiff may demand the return of the paid amount of money and payment of interest on it. He can also make a demand for compensation for losses that were caused to him. This type of compensation involves, for example, payment of the difference between the value of the property stipulated in the purchase and sale agreement and the current market price of such an object.

If the court receives comprehensive evidence of the fact that the defendant is the owner of real estate, which acts as the subject of the agreement and is its unregistered owner, then the arbitration court may oblige the defendant to fulfill its obligations under the agreement (in accordance with Article 398 of the Civil Code of the Russian Federation), Requirement the defendant may be expressed in the transfer of real estate and state registration of the transfer of ownership of it under the purchase and sale agreement.

In addition, the plenum of the Supreme Arbitration Court of the Russian Federation specifically noted that the requirements for recognition of ownership of real estate and reclaiming it from the defendant can be defined as requirements that force the fulfillment of the obligation to transfer a certain thing and state registration of the transfer of ownership rights to it.

3. Construction of a real estate property on the customer’s site

Key clarification: the status of a construction contract may include agreements that consider the creation of a future real estate property on a plot of land owned by another person under the contract.

In paragraph 6 of Resolution No. 54, it is explained that an agreement that provides for the creation of an immovable object on a plot of land owned by the other party under this agreement, then such relations must be defined as relations of a construction contract. In this situation, the party that carries out the construction has the right to receive payment for work performed in accordance with the contract. When this condition is not met, in addition to the specified amount of money, the party may demand compensation for losses with the payment of a penalty provided for under the terms of the contract. She can also exercise her right, which is granted to her according to the rules of Article 712 of the Civil Code of the Russian Federation.

If payment for construction work under the contract is made not in cash, but with the provision of ownership of premises in the constructed building, then this contract can be qualified as mixed, and in the relevant part of it strictly defined requirements that are provided for in the sales contract will be met real estate.

4. Definition of an agreement on a future real estate property as a simple partnership agreement

Key clarification: a simple partnership agreement can be considered an agreement regarding the future of real estate, providing that each party makes its contribution to achieving a common goal.

A simple partnership agreement is an agreement regarding future real estate. Paragraph 7 of Resolution No. 54 explains that simple partnership agreement provides for an equal contribution of each participant in the transaction to the future object. For example, one participant transfers money, the second carries out work, the third supplies building materials, etc. The result of cooperation under a simple partnership agreement is a finished property.

According to the instructions of the Plenum of the Supreme Arbitration Court of the Russian Federation, if, contrary to the basic terms of the contract, one of the partners, who must contribute to the creation of a real estate property in the form of transferring a land plot into common ownership or lease rights, evades fulfilling his obligations, then in this case the rest participants may demand the fulfillment of such obligations in court. This fact is enshrined in paragraph 3 of Article 551 of the Civil Code of the Russian Federation. Statements of claim by partners, which express a demand for recognition of ownership of a share in a real estate object created jointly, in accordance with the explanations of the Plenum of the Supreme Arbitration Court of the Russian Federation, given in paragraph 7 of Resolution No. 54, should be qualified in the same way.

In all of the above cases, it is necessary to take into account that the ownership right of each partner who makes the above requirement can arise only after state registration of such a right on the basis of a judicial act, which indicates the fact of satisfaction of this requirement.

5. An investment agreement cannot be qualified as an independent type of civil law agreement

Key clarification: an investment agreement cannot be considered an independent type of agreement. That is why, in each case, it is necessary to determine the legal nature of such an agreement.

Paragraph 4 of Resolution No. 54 clarifies the fact that contracts that are related to investment activities cannot have special legal regulation of the obligation relations that develop between the parties.

The Plenum of the Supreme Arbitration Court of the Russian Federation noted that in this case, arbitration courts must first establish the legal nature of such agreements (contract, sale and purchase, simple partnership). In addition, he drew attention to the fact that the ownership of a real estate object, which is created in accordance with the provisions of the “investment agreement,” may arise among the persons who entered into this agreement from the moment when state registration of the right is carried out. This fact is enshrined in paragraph 2 of Article 223 of the Civil Code of the Russian Federation.

6. Conclusion of a preliminary contract for the purchase and sale of real estate

Key clarification: a preliminary contract for the purchase and sale of real estate, which was concluded on the basis of advance payment, can be considered a contract for the purchase and sale of a future real estate property.

The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 7 of Resolution No. 54 explained that preliminary contract for the purchase and sale of real estate between persons who undertake to enter into a contract for the purchase and sale of property created in the future, on the terms of prepayment of the majority of the total cost or the full price of the object should be defined as a contract for the sale and purchase of future real estate.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the requirement for individualization of the object of the purchase and sale agreement also applies to the subject of the future agreement, which is indicated in the preliminary agreement. That is why this preliminary agreement cannot be considered unconcluded if the object was properly individualized in the preliminary agreement, but, for example, without indicating the cadastral number of the property.

7. Procedure for registering a residential purchase and sale agreement

Key clarification: the procedure for state registration of contracts for the sale and purchase of residential premises is necessary only if at the time of concluding this contract the seller is the owner of the specified object.

In accordance with the provisions of paragraph 9 of Resolution No. 54, the Plenum of the Supreme Arbitration Court of the Russian Federation explained that state registration must be carried out in relation to the agreement for the sale and purchase of residential premises if, at the time of its conclusion, the subject of the agreement is owned by the seller (according to paragraph 2 of Article 558 Civil Code of the Russian Federation). Otherwise, it will be considered that from the moment of its signing the contract is not concluded.

It has also been established that the expression of refusal on the part of the territorial bodies of Rosreestr regarding the state registration of ownership of residential premises that does not belong to the seller at the time of concluding the purchase and sale agreement and is not registered accordingly can be considered illegal in the event that the refusal is explained solely by the lack of this registration.

8. Conclusion of a shared construction agreement.

Key clarification: the explanations of the Plenum of the Supreme Arbitration Court of the Russian Federation, which follow from Resolution No. 54, do not apply to those relations that are associated with the shared construction of apartment buildings.

This statement applies to objects regulated by Federal Law dated December 30, 2004 No. 214-FZ “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation.”