7.5. What you need to know about the contract for the sale of real estate?
The real estate purchase agreement is governed by paragraph 1 (general provisions on sale) and paragraph 7 (sale of real estate) chapter 30 of the Civil Code of the Russian Federation (hereinafter - "Civil Code of the Russian Federation").
Determination of the contract of sale of real estate
Under the contract of sale of real estate (real estate sales contract) The seller undertakes to transfer land plot, building, building, apartment or other real estate (Art. 549 of the Civil Code of the Russian Federation), and the buyer undertakes to accept this property and pay for it a certain monetary amount (price) (Art. 454 of the Civil Code of the Russian Federation).
Real Estate Purchasing Agreement
According to Article 550 of the Russian Federation, the real estate sales contract is in writing by drawing up one document signed by the parties. This means that the real estate purchase agreement cannot be concluded by sharing documents through postal, telegraph, telegraph, telephone, electronic or other connection, allowing to reliably establish that the document comes from the contract.
Failure to comply with the form of the contract for the sale of real estate entails its invalidity, namely, insignificance.
However, the provision that the Agreement is "through the preparation of one document", does not limit the number of copies of the real estate purchase and sale agreement, which any quantity can be. To register the transfer of property ownership of the property, at least three copies are required: a seller instance, a buyer instance and an instance that will remain in the register business of Rosreestra.
State registration of the transfer of property rights of real estate
It must be borne in mind that the current legislation does not contain requirements for registration of the sales contract itself non-residential real estate. The state registration is subject to only the contract for the sale of a residential building, an apartment, parts of a residential building or apartment. Such an agreement is considered concluded from the moment of such registration (Art. 558 of the Civil Code). Trade and sale non-residents The premises are considered to be concluded since its signing by the Parties, and not from the moment of registration of the transfer of ownership.
State registration requirements apply to the transfer of property rights, but not to the contract for the sale of non-residential real estate.
Subject of the contract for the sale and purchase of real estate and other essential conditions
According to Article 554 of the Civil Code of the Russian Federation in the Real Estate Sales Agreement, data must be specified to determine the real estate to be transferred to the Buyer under the Agreement, including data that determines the location of real estate at the relevant land plot or as part of another real estate.
In the absence of these data in the contract, the condition of immovable property to be transmitted is considered not agreed by the parties, and the corresponding contract is not considered concluded.
This means the need to describe and detail the real estate object so that there is no doubt about its certainty. This is usually achieved by an indication of the contract for the cadastral number of the selling land plot or on a conditional number for other real estate objects, as well as an indication of the area of \u200b\u200bthe object, the exact address of the location of the property, floor or floors, on which the real estate object is located, the rooms of the premises belonging to The objective object on the explication, and the design as an annex to the Treaty of a Floor Plan of the acquired property of real estate, in which the acquired premises were allocated by any color. It is reasonable to indicate in the contract that the purchasing building, structure, the construction is located on a land plot that has such a cadastral number and apply the plan of this land plot.
According to paragraph 2 of Art. 455 of the Civil Code of the Russian Federation contract of sale can be concluded for the sale of real estate, which will be created or purchased by the seller in the futureunless otherwise established by law.
The Supreme Arbitration Court of the Russian Federation in the Decree of its Plenum dated July 11, 2011 No. 54 "On some issues of resolving disputes arising from real estate agreements, which will be created or purchased in the future" indicated that the lack of the seller at the time of the conclusion of a real estate contract Property ownership rights in itself is not a basis for recognizing such a contract invalid. However, for state registration of the transfer of ownership of real estate to the buyer (Articles 131 and 551 of the Civil Code of the Russian Federation), the Seller must have the right to ownership of it. This means that the parties can conclude a sales contract for non-existent real estate, which will be created or purchased by the Seller in the future, but for the transition of ownership of such property from the Seller to the buyer, the Seller must have ownership of it at the time of registration of the transition of this right Property to the buyer.
The subject of such a contract for the sale of a future thing may be a land plot, which at the time of the conclusion of the contract is not yet educated in the manner prescribed by the Federal Law.
If the parties are concluded by the contract of sale of the future real estate, then the individualization of the subject of the contract can be carried out by specifying information to establish real estate to be transferred to the Buyer under the contract (for example, the location of the future real estate, the estimated area of \u200b\u200bthe future building, premises, land, other Characteristics, property properties, specific, in particular, in accordance with project documentation). At the same time, such treaties should provide for the price of the selling property, which can be established for the unit of its area or otherwise (paragraph 3 of Article 555 of the Civil Code of the Russian Federation) (paragraph 2 in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No. 54 "On some issues of permission Disputes arising from agreements on real estate, which will be created or purchased in the future. "
In accordance with paragraph 1 of Art. 555 of the Civil Code of the RF real estate sales contract must provide price of this property. Real estate price is a significant condition of the contract.
In the absence of a condition for the price of real estate in a contract in writing, the condition of its sale is considered to be nonconnected.
At the same time, according to paragraph 2 of Art. 555 of the Civil Code of the Russian Federation, unless otherwise provided by law or the agreement for the sale of real estate, which is established in it, the price of the building, facilities or other real estate, located on the land plot, includes the price of a corresponding part of the land registered with this real estate. Thus, if the contract price of the land plot or is not listed on it, it is considered to be included in the price that is in this land plot of the building, structures or other real estate.
In the event that the purchase agreement provides for the payment of real estate in installments (Art. 489 of the Civil Code of the Russian Federation), contract
it is considered concluded if in it along with other material conditions of the contract of sale of the property, order, deadlines and amounts of payments are indicated. If the contract does not contain these provisions, then the Agreement cannot be considered concluded.
Rights to the land plot when selling buildings, structures or other real estate on it
As a general rule (paragraph 1 of Art. 552 of the Civil Code of the Russian Federation) under the contract of sale of the building, facilities or other real estate to the Buyer simultaneously with the transfer of ownership for such real estate pass rights to landThis real estate and necessary for its use.
However, the transfer of rights to the land plot from the seller to the buyer depends on whether the land plot belongs to the seller on the right of ownership or not.
I. In the case when the seller is the owner of the landwhere the property is sold, the buyer is transferred to ownership of landemployed by such real estate and necessary for its use, unless otherwise provided by law (paragraph 2 of Art. 552 of the Civil Code of the Russian Federation).
II. Sale of real estate on the land plot, not belonging to the seller on ownershipallowed without the consent of the owner of this plot if this does not contradictterms of use by such a plot established by law or contract. When selling such real estate buyer acquires the right to use corresponding land plot under the same conditions as the seller of real estate.
Conditions on the quality of the property
Describing and detailing the object of real estate, it is recommended to avoid disputes and misunderstandings to reflect the conditions for the quality (physical and legal) object of real estate.
This Recommendation is based on article 557 of the Civil Code, which in the case of the transfer of the seller to the buyer of real estate that does not comply with the terms of the real estate agreement, allows us to apply the rules of Article 475 of the Civil Code with the exception of The provisions on the right of the buyer will require the replacement of the goods of improper quality to the goods corresponding to the contract. Article 475 of the Civil Code, taking into account the specified exception, in turn, provides the Buyer the right to refuse to fulfill the contract of sale and demand the return of the estate amount paid for the estate in the event of a significant violation of the quality of real estate (Detection of unreal deficiencies, disadvantages that cannot be eliminated without disproportionate expenses or time costs, or are revealed repeatedly, or appear again after they are eliminated, and other similar shortcomings). If the disadvantages of the real estate facility were not agreed by the seller, the buyer, who was transferred to the object of real estate inappropriate quality, has the right to demand from the seller in his choice:
- proportionate to reducing the purchase price;
- free elimination of the shortcomings of goods within a reasonable time;
- reimbursement of its expenses to eliminate the shortcomings of goods.
Risk transition of random death or accidental damage to real estate
Unless otherwise provided by the purchase and sale agreement, the risk of random death or accidental damage to the property is transferred to the buyer from the moment that in accordance with the law or contract the Seller is considered to fulfill its obligation to transfer real estate to the buyer.
Registration of the transition of ownership of the buyer does not mean that the property is transferred to the buyer. According to paragraph 1 of Art. 556 of the Civil Code of the Russian Federation Transfer Real Estate by the Seller and accepting it by the Buyer are carried out on the submitted parties to the gear ratio or other transmission document.
Unless otherwise provided by law or contract, the seller's obligation to transfer the property to the Buyer is considered to be fulfilled after the provision of this property to the buyer and signing by the Parties of the relevant application document. However, it will be incorrect to think that it is after this that the risk of random death or accidental damage to the acquired real estate passes to the buyer. These risks go to the buyer only at the time of registration of the transfer of ownership. This is due to the fact that according to Art. 211 of the Civil Code of the Russian Federation The risk of random death or random damage to the property bears his owner, unless otherwise provided by law or contract. But the parties can still point out that the risk of random death or accidental damage to the acquired property proceeds to the buyer at the time of the real estate transfer to the buyer on the transfer act or other transmission document.
Guarantees of the parties and the obligation of the seller to transfer the goods free from the rights of third parties
A well-prepared real estate sales contract implies guarantees and assurances in relation to the real estate and seller itself.
Since the main risks in the transaction takes on the buyer, it is, it must first of all be praised to point out the guarantees in the contract that he would like to receive from the seller and the violation of which can lead to the emergence of the buyer of losses, loss of rights to the acquired property Or retract buyer in litigation on various reasons. The list of guarantees depends on the conditions and scheme of the transaction, from how the property object is decorated, from its legal fate, the state of the real estate object, as well as the parties of the transaction by individuals or legal entities. Preparation of a list of those guarantees that should be given by the seller and are included in the sale agreement - the task that the transaction organizer must put before the lawyer carrying out the execution of the transaction.
The number of guarantees issued by the Buyer, as a rule, significantly less seller's guarantees and are presented in essence guarantee regarding the authority of the buyer to conclude a contract and restrictions on negotiating the purchase of real estate and the conclusion of real estate purchase and sale agreements with other persons.
Article 460 of the Civil Code of the Russian Federation established the obligation of the seller to transfer real estate to the buyer free from any rights of third parties, except in the case when the buyer agreed to take the goods burdened by third parties. Failure by the seller of this duty gives the buyer the right to require reducing the price of real estate or termination of the contract of saleIf it is not proved that the buyer knew or had to be aware of the rights of third parties on this property. These rules are applied and in the case when the buyer has been applied to the serviceable real estate by the time of its transfer to the buyer, about which the seller was known if these claims are subsequently recognized in the prescribed manner legitimate.
Responsibility of parties for violation of the contract, including for violation of guarantees
The contract of sale should provide for responsibility (conditions, type and size) for violation by the parties to the obligations and guarantees. Responsibility can be expressed in the possibility of recovery from the part of a violation of the contract, penalties, fines, losses, interest, etc. In addition, the violation by one side of the duties determined by law or the contract may lead to the emergence of the rights necessary for its protection. An example may be the norms of the above article 460 of the Civil Code of the Russian Federation.
Conditions relating to the exit from the transaction
In order not to be in a hopeless situation, when the contract is concluded, but due to various reasons or circumstances can not be executed, we recommend it in detail to prescribe the conditions for the sale of the seller and / or the buyer from the transaction and conditions, upon the occurrence of which the contract will be considered terminated . Description and formulation of such conditions - the task of your lawyer.
Under the contract of sale of real estate (real estate sales contract), the seller undertakes to transfer land plot, building, building, apartment or other real estate in the property, and the buyer undertakes to accept this property and pay for it a price-defined price (paragraph 1 of Art. 549, paragraph 1 of Art. 454 GK).
The main conditions for the sale of real estate are the conditions on the subject of sale and the price of the sold real estate.
The law requires that the real estate sales contract indicate data that can definitely establish immovable property to be transferred to the Buyer under the Agreement, including data that determines the location of real estate at the appropriate land plot or as part of another real estate. In the absence of the specified data in the contract, the condition for sold and subject to transfers is considered inconsistent, and the contract is not shut-off.
IN difference from the purchase and sale agreement Movable property The property selling real estate should contain a condition coordinated by the parties in writing. In the absence of the condition about the price of the property, the property of real estate is considered not shown (paragraph 1 of article 555 of the Civil Code). As a general rule, the price of real estate in the land plot agreed by the Parties includes the price of the corresponding part of the land or right to it (paragraph 2 of Art. 555 of the Civil Code, transmitted with this real estate. However, this rule is disposed.
Real Estate Price The real estate sales contract can be determined by the parties in various ways. In cases where the price of real estate is established for a unit of its area or another indicator of its size, the total price of such real estate payable is determined on the basis of the actual size of the real estate transferred to the buyer (clause 3 of Article 555 of the Civil Code).
Main duty Buyer under the Treaty of Real Estate Sales Along with the obligation to accept purchased real estate is the obligation to pay. The form, order and method of payment are determined by the parties to the contract independently. The law is allowed to pay for purchased real estate in installments and on credit, as well as preliminary payment.
In the absence of conditions on the distribution of expenses on state registration of the transfer of ownership of the right of ownership, these expenses should be assigned to the seller.
The real estate sales agreement lies in writing by drawing up one document signed by the parties.
Non-compliance The shape of the real estate contract shall entail its invalidity. The transition of property rights under the Treaty of Real Estate Sales to the Buyer is subject to state registration.
Agreement of enterprise sales
Under the contract of sale of the enterprise, the Seller undertakes to transfer the company in general as a property complex (Art. 132 of the Civil Code of the Russian Federation), with the exception of the rights and obligations that the seller is not entitled to transmit to other persons (paragraph 1 of Art. 559 of the Civil Code of the Russian Federation).
Allocation of a contract for the sale of an enterprise as an independent variety of real estate sales contract is due to the specifics of the subject - enterprises as a property complex used for business activities.
The contract for the sale of an enterprise is a consensus, compensated, mutual.
The object of this contract is an enterprise as a property complex. The company as a property complex includes all types of property intended for its activities, including land, buildings, structures, equipment, inventory, raw materials, products, rights, demand, debts, and rights to designations, Individualizing enterprise, its products, work and services (corporate name, trademarks, service signs), and other exceptional rights. Other property and non-property elements may be included in the company by law or contract.
The parties under the contract are the seller - a natural or legal person ownership of the property in question in question, and the buyer is usually an individual - an entrepreneur or a legal entity whose property can be a property complex of a certain target.
The requirements for the shape of the contract for the sale of an enterprise should be considered as special. First, this is an indication of the actual form of the contract and its registration, and secondly, the instructions for the documents attached to the contract, the list of which is exhaustive. Failure to comply with those and other requirements entails the invalidity of the contract.
Delivery contract: concept, types and elements
Under the supply contract, the supplier - a seller who carries out entrepreneurship undertakes to convey due to the term or deadlines or purchased goods to the buyer for use in business or for other purposes that are not related to personal, family, home and other similar use.
This contract is a consensual, compensated and mutual.
The delivery is most often related to the supply contract for state needs, an energy supply contract, a contracting contract.
Elements of the supply contract are as follows: Parties, subject, price, term, form and procedure for concluding, the content of the contract.
Parties to the contract - persons leading entrepreneurial activities, i.e. According to Art. 2 GK Commercial organizations (sometimes non-profit) or citizens are individual entrepreneurs.
The subject of the contract is usually things defined by generic signs. The buyer's rights include the right to replace the poor-quality goods, the replenishment of the misuse of others with the assumption of the costs of their acquisition. Things individually-defined cannot be the subject of the contract. The contract price is determined by agreement of the parties (except for those types of goods in respect of which state regulation of prices is carried out).
The term of execution of obligations for the transfer of goods and its payment is also established by agreement of the parties.
The form of the contract is written, which in practice is issued, as a rule, by signing and drawing up by the parties to one document. The content of the contract is obligations of the parties (supplier - to transfer the goods to the buyer with all the necessary accessories and documents in the agreed quantity, assortment and set, set of quality, free from the rights of third parties, in proper packaging or packaging, and the buyer - take the goods and pay it).
Supply of goods for state needs
The supply of goods for state needs is carried out on the basis of a state contract for the supply of goods for state needs, as well as concluded agreements to the supply of goods for state needs.
State needs recognize the procedure of the Russian Federation or the subjects of the Russian Federation established in the procedure established by law, provided at the expense of budgets and extrabudgetary sources of financing.
The state contract for the supply of goods for the state for the state is a type of contract of delivery and in this sense can be characterized as compensated, 105 onsensen and mutual agreement.
According to the state contract for the supply of goods for state needs, the supplier (performer) undertakes to transfer the goods to the state order of the State Transportation or to its instructions to another person, and the State Transpasser undertakes to ensure payment of the goods delivered.
The State Contract is based on the order of the State Transportation for the supply of goods for the ICC adopted by the supplier (the Contractor).
For the State Transportation, which has been placed by the order adopted by the supplier (performer), the conclusion of the state contract is mandatory. The conclusion of the contract is mandatory for the supplier (performer) only in cases established by law, and provided that all losses that can be caused by the provider (Contractor) will be reimbursed in connection with the execution of the contract.
If the order for the supply of goods for the state is placed by the contest, the conclusion of the contract with the supplier (performer), declared the winner of the competition, is obligatory for the State Transportation.
In cases provided for by law, the State Transpasser has the right to fully or partially abandon the goods, the supply of which is provided for by the state contract, subject to the reimbursement of the supplier of losses caused by such a refusal.
Contract contract
Under the contracting contract, the manufacturer of agricultural products undertakes to convey the agricultural product grown (manufactured) by the procurement of such products for processing or selling.
This contract is a consensus, compensable and bilateral.
Specific for contracting are parties and subject matter. The seller under the contract of contracting may be not only agricultural commercial organizations and peasant (farmer) farms, for which the production and sale of agricultural products is entrepreneurial activities, but also citizens producing agricultural products on households, gardening and garden sites. The buyer is a person who purchases the procurement of agricultural products for subsequent processing or sale, i.e. For use in business activities.
Under the contracting contract, only those agricultural products are being implemented, which is grown (manufactured) by the seller, in the amount and assortment provided for by the Treaty. It may be products of the future harvest or existing in the extension producer at the conclusion of the contract. Under the supply contract can be implemented both manufactured and purchased by the seller products.
Under the contracting contract, agricultural products are implemented that has not been subjected to any processing. Recycled agricultural products refers to industrial products, which is implemented under the supply contract or under a retail sales contract.
Power supply contract
The power supply contract is a public contract.
Under the energy supply contract, the energy supply organization undertakes to submit to the Subscriber (consumer) through an attached network of energy, and the Subscriber undertakes to pay for accepted energy, as well as to comply with the agreement provided for by the Agreement, to ensure the safety of the operation in its conduct of energy networks and the health of the appliances and equipment related to it With energy consumption.
The power supply contract is to the Subscriber if it has a power acquisition device that meets the established technical requirements attached to the networks of the power supply organization, and other necessary equipment, as well as while ensuring the consumption of energy consumption.
This is a contract consensualsince the rights and obligations of the parties arise from the date of the conclusion of the contract and the supply organization undertakes to submit energy to the Subscriber during the Agreement; In addition, this contract is paid and mutual and relates to the number of public contracts.
The parties to this contract are the power supply organization and the subscriber. Energy supplying is recognized by commercial organizations that sell consumers produced or purchased electrical and (or) thermal energy.
Subscriber under the energy supply contract (energy buyer) can act legal or individual. Entity May receive energy either for direct consumption or for resale. CitizensAs a rule, the power supply contract for the use of energy for household consumption is concluded. However, the contract may be provided for the use of energy and to ensure entrepreneurial activities.
GK does not contain special requirements for the form of an energy supply contract. Therefore, during its design, general provisions on the form of transactions should be observed. When concluding a power supply contract with a subscriber - a legal entity requires compliance with simple written form. Registration of contractual relationship occurs by "actual connection" in the prescribed manner to the attached network (clause 1 of article 540 of the Civil Code). The actual connection is preceded by a statement by a statement of an energy supply organization, an inspection of its electrical wiring, the sealing of the meter, etc., after which, if their compliance with the current technical requirements, the power supply organization opens the personal account in the name of the subscriber and gives it a "Calculation Book" to payment documents for used electricity. Break in feed, termination or limitation of energy supply is possible: - by the coordination of the parties; - if the unsatisfactory state of the subscriber's energy settings threatens an accident or creates a threat to life or security of citizens; - In case of the need to take urgent measures to prevent or eliminate accidents in the energy supply company's system.
Case N 11-B02-49
(Extraction)
K. appealed to the court with a claim to E. - relatives L. On recognition of the sale of the sale and sale of land and buildings to the actual and recognition of ownership of these objects, justifying the requirements as follows. In June 1999, there was an agreement between her and L. an agreement was reached on the sale of a land plot in the consumer society of the gardening partnership (post) "Spring-2" with buildings located on it for 35 thousand rubles and in August 1999 - about the transfer of garden Domika in property. On July 19, 1999, L. issued the most power of attorney to represent her interests on the issue of collecting documents for the sale of a garden house and a land plot. K. paid a monthly amount paid on the bill at home on receipts, total passed 25 thousand rubles, and the remaining amount was obliged to pay after the conclusion of the contract of sale. However, on June 21, 2000, after registration of all documents, she learned that on June 5, 2000 L. Died. On December 1, 2000, the plaintiff appealed to the notarial office and made money due from it to the nonotarus deposit, and therefore believed that the obligations on its part were fulfilled.
By the decision of the World Judge of the Judicial Piece of the Tukayevsky district of the Republic of Tatarstan dated November 13, 2001, refused to satisfy the requirements.
The appeal decision of the Tukaevsky District Court of the Republic of Tatarstan dated December 10, 2001, the decision of the magistrate was canceled, a new decision was made to meet the requirements.
The Presidency of the Supreme Court of the Republic of Tatarstan on August 21, 2002, the appeal decision was unchanged, and the protest of the Deputy Chairman of the Supreme Court of the Russian Federation, which was raised about the cancellation of the appeal decision - without satisfaction.
The judicial board on civil cases of the Supreme Court of the Russian Federation on October 8, 2002, protest the Deputy Chairman of the Supreme Court of the Russian Federation on the abolition of the appeal decision and the Decision of the Presidium, with the leaving of the decision of the magistrate, satisfied on the following grounds.
Canceling the decision of the magistrate and making a new decision to satisfy the claim, the appellate court referred to the fact that the contract for the sale of a garden plot with the buildings was actually executed, this is confirmed by the evidence submitted in the case, in particular L. Statement of July 13, 1999 In which she asked to exclude it from members of the horticultural partnership in connection with the sale of the garden plot K., as well as a statement by K. from the same number about adopting it in the post "Spring-2" post.
It is impossible to agree with this conclusion.
By virtue of Art. 30 of the Federal Law of April 15, 1998 N 66-FZ "On Horticultural, Gardening and Country Non-Profit Associations of Citizens" Owners of Sadovy, Garden and Country Lands Affairs has the right to sell them, give, pass on the deposit, rent, urgent use, exchange, conclude Rental contract or a lifetime agreement with dependency, as well as voluntarily refuse the specified areas.
The indication of the Supervisory Court for the fact that L. submitted to the Horticultural Partnership Application to exclude it from members of the Partnership, and the plaintiff appeared with a statement about making it in the post, paid for tax debts and contributions, and therefore the contract of sale can be considered Prisoners can not be recognized with legitimate, since there is no protocol of the General Meeting of the Horticultural Partnership on the exclusion of L. from members of the Partnership and acceptance of K.
In addition, by virtue of Art. 550 Civil Code of the Russian Federation The real estate sales contract lies in writing by drawing up one document signed by the parties (clause 2 of Art. 434). Failure to comply with the form of a real estate sales contract entails its invalidity.
In accordance with Art. The 554 of the Civil Code of the Russian Federation in the Treaty of Real Estate Sales must be indicated, allowing to definitely establish real estate to be transferred to the Buyer under the contract, including data that determines the location of real estate at the corresponding land plot or as part of another real estate.
In the absence of these information in the contract, the condition of immovable property to be transmitted is considered not agreed by the parties, and the corresponding contract is not considered prisoners.
In art. 555 of the Civil Code of the Russian Federation it is envisaged that in the absence of a condition for the price of real estate in a contract, the condition of its sale is considered to be nonconnected.
According to Art. 556 of the Civil Code of the Russian Federation Transfer Real Estate by the Seller and accepting it by the Buyer are carried out on the submitted parties to the gear ratio or other transmission document.
No documents confirming that the transaction took place in the case file is not contained. The proofs presented can only testify only to the intention of the parties to conclude a contract for the sale of land and garden house.
Under such circumstances of the grounds stipulated by law, for the abolition of the decision of the magistrate's refusal to the lawsuit, the court decision should be recognized as a legitimate, and the appellate decision and the decree of the Presidium are subject to cancellation with the leaving of the decision of the court of first instance.
The real estate sales agreement lies in writing through the preparation of one document signed by the parties (paragraph 2 of Article 434).
Failure to comply with the form of a real estate sales contract entails its invalidity.
Comment on article 550
1. Paragraph 1 comment. Art. Provides special rules regarding the form of a real estate sales contract. Such an agreement should be concluded in writing by drawing up a single document signed by both parties. Other known domestic law enforcements for the written form of the contract, such as the exchange of documents through postal, telegraph, electronic and other communication (see paragraph 2 of Article 434 of the Civil Code), are insufficient for its conclusion (see Resolution of the FAS Volga-Vyatka District of July 2, 2007 G. N A43-2514 / 2007-23-64).
2. In accordance with paragraph 1 of Art. 452 GK Agreement on the change or termination of the contract is committed in the same form as the contract, if the law, other legal acts, contracts or customs of the business turnover does not flow out otherwise. Consequently, the agreement on the change or termination of the real estate sales agreement should also be in the form of a single document subscribed by the parties.
3. The real estate purchase and sale agreement is considered concluded from the moment of signing a single written document by both parties. The exceptions are a contract for the sale of residential premises (see Art. 558 GK) and the contract for the sale of an enterprise (see Art. 560 GK), which are subject to state registration and enter into force from the moment of their registration (clause 3 of Article 433 of the Civil Code).
4. Paragraph 2 comments. Art. establishes special consequences of violation of the written form of this contract (cf. with the general rules of paragraph 1 of Art. 162 of the Civil Code). Failure to comply with the form of a real estate agreement - the commission is orally or with violation of the requirements of a single written form - entails the invalidity of the contract.
The real estate sales agreement lies in writing through the preparation of one document signed by the parties (paragraph 2 of Article 434).
Failure to comply with the form of a real estate sales contract entails its invalidity.
Comment to Art. 550 GK of the Russian Federation
1. The commented rate is limited to a simple written form of real estate sales contract. At the same time, it should be recalled that the GC of the RSFSR 1964, without operating such a category as "real estate", established an imperative rule about the need to notarize the contracts for the sale of residential buildings.
Currently, the decision on the use or non-use of the notarial form of a real estate sales agreement takes parties.
2. Despite the fact that, as a general rule, the written form of the contract is possible in different types (see Art. 434 of the Civil Code), a commented article establishes a requirement about one document expressing its content and signed by the parties (or by them authorized).
3. in paragraph. 2 commented on the article indicates that non-compliance with the form of the real estate sales agreement entails its invalidity. At the same time, the following conditions are also required to render real estate transactions.
First, it is necessary that the transaction content does not contradict the law. In particular, transactions aimed at alienation of common use of an office building (such as technical basement) or an apartment (for example, a kitchen).
Secondly, it is necessary to have the side of legal capacity and legal capacity. Since the transaction is a volitional action, only capable citizens can make it. Obviously, if a citizen does not have complete legal capacity, the sale of real estate owned by him (or the acquisition) is carried out by its legal representative (on behalf of young, incapacitated citizens) or with the written consent of the legal representative of citizens aged 14 to 18 years or citizens limited court in legal capacity. Legal entities can also be parties to the transaction, taking into account the specifics of their legal status, for example, enterprises based on the right of economic management or operational management, while limiting their disposal of real estate.
Thirdly, it is necessary that the real estate real estate belongs to the right of ownership. If a state or municipal organization is an alienator, the facility should belong to either state and municipal enterprises on the principle of economic management or state and municipal institutions, as well as government enterprises on the right of operational management. Legal possession, use and disposal of real estate is confirmed by a guideline document - a contract of sale, a transfer agreement, etc.
Fourth, it is necessary that the willing of the transaction participant corresponds to its actual will, i.e. Understanding the transaction should be right, and its commission is voluntary.
Fifth, as already specified, a written design of these transactions is required in the form of one document.
Sixth, binding state registration of real estate sales contracts (for example, contract of sale of residential premises, etc.) in cases provided for by law. According to paragraph 1 of Art. 165 of the Civil Code Non-compliance with the requirements for state registration of the transaction entails its invalidity. From state registration of the Agreement, it is necessary to distinguish the state registration of the transition of property rights to immovable property. "Double" state registration of both contracts for the sale of residential premises and the transition of ownership of such agreements, as well as some other real estate transactions and the transfer of rights to it, was relevant within the transitional period of the development of the legislation of the Russian Federation and the formation of legal conditions for civil turnover of real estate When citizens have faced transactions with residential premises with numerous fraudulent actions. Currently, the necessary conditions have emerged to eliminate the requirement of state registration of contracts for the sale of residential premises while maintaining the current requirements for the state registration of the transfer of rights to any object of real estate, including a housing facility.
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See the explanatory note to the draft federal law N 121907-5 "On Amendments to Part Two Civil Code of the Russian Federation" (in terms of excluding the requirement of state registration of certain treaties). Made by deputies of the State Duma FS RF P.V. Krasheninnikov, V.S. Gruzdev, A.G. Nazarov, OD Galtsova // ATP "ConsultantPlus".
During the retreat from the above-mentioned conditions, the transaction is considered invalid.
The deal, invalid by virtue of the recognition by its case, is recognized as an arbitrary, such as the transaction, committed by limitedly capable or minors aged 14 to 18 years (Art. 175 and 176 of the Civil Code), as well as under the influence of violence or threats (Art. 179 GK).
4. The transaction, invalid, regardless of the court decision, is negligible, for example, the transaction committed incapable or under the age of 14 (Art. Art. 171 and 172 of the Civil Code) or committed without intent to create relevant legal consequences (paragraph 1 of Art. 170 GK ).
In art. 168 of the Civil Code of the Russian Federation establishes the principle of attributing transactions to a category of invalidity, if the law does not indicate the challenge of the transaction. Transactions that do not meet the law or other legal acts are considered insignificant.
