Sample claim to the owner of the apartment for the return of the advance. Application for a refund under a preliminary contract
A deposit to the seller is a confirmation of the serious intentions of the buyer, a guarantee that the transaction will take place. By providing part of the amount in advance under a formal contract, the buyer wins a lot. Firstly, he reserves the right to make a purchase in which he is interested, and secondly, if the transaction fails through no fault of his own, the second party returns to him the amount of the deposit in double the amount, although this will have to go through legal proceedings.
The buyer can lose money: if he suddenly wants to refuse the transaction on his own whim, the seller has every right not to return the funds to him. Another thing is the presence of objective reasons due to which the buyer refuses the transaction. In this case, he can get the money back if it was provided for by the contract.
In what cases the seller is obliged to return the deposit
Any transaction between the seller and the buyer must be supported by an agreement. This is the basis, without which it is impossible to give the seller either a deposit, or, even more so, the entire amount, especially when it comes to buying real estate, where the amounts amount to hundreds of thousands of rubles (the deposit is usually 5-10% of the total amount).
According to the established legal norms, the deposit is transferred after the execution of the preliminary contract indicating the cost of the apartment, the amount of the deposit, the wishes and requirements of the parties, for example, with the requirement to discharge all people who previously lived in the premises. It must also indicate in which cases the deposit can be returned. Usually, circumstances are indicated that may prevent the completion of the transaction for reasons that do not depend on the parties planning to complete it, namely:
- sudden illness;
- refusal to issue a mortgage;
- a sharp deterioration in the financial situation.
The deposit can be returned if both parties agree to terminate all obligations before the start of the transaction, that is, the decision of one party not to sell, and the decision of the other party not to buy the premises. In this case, the matter can be settled peacefully, without disagreements.
If the case goes to court, then they may be required to return the deposit in double size if the contract fails due to the fault of the seller who has not fulfilled his obligations prescribed in the preliminary contract. Well, if the buyer himself does not fulfill the obligation, for example, deciding to buy another apartment or spend the money differently, the court most likely will not require the seller to return the funds, since the seller himself will be the injured party in this case.
The deposit agreement is drawn up in two copies. It will have greater legal force in the case of notarization. Although the law does not oblige this document to be certified by a notary, without its seal it will be more difficult to prove the validity of the document. In addition to the agreement drawn up by both parties, the seller also writes a receipt for the receipt of funds, indicating the amount of the deposit, the passport data of the parties, the date of the preliminary transaction and its purpose. If the receipt is drawn up on a computer, it must be certified by a notary., since a printed document, even with an existing signature, is not the best evidence in court. If there is no notary, it is advisable to exchange money and a receipt in the presence of outside witnesses (not from among relatives).
The buyer has the right to apply to the court to recover money from the seller if he believes that the transaction has been disrupted for reasons beyond his control or through the fault of the selling party. Previously, he can send a written claim to the seller demanding that the funds be returned by a certain date, before the case is taken to court.
The statement of claim with an explanation of the reasons for the appeal and the requirements for the defendant is sent to the judicial authorities at the place of registration of the seller. It must be said that even in the absence of a contract, the buyer can count on a positive court decision. In the 329th article Civil Code Russian Federation it is written that if the main obligation (in this case, the preliminary contract itself) is recognized as invalid, the obligations securing this contract will also be invalid. If the transaction is declared invalid, the parties will be obliged to return to the original owners everything received under this transaction. This also applies to the deposit, which will no longer be considered as such. True, you should not hope for a return of the amount in double equivalent, most likely the court will recognize the fact that the seller received the amount of the deposit as a sign of unjust enrichment and will require the return of the money indicated in the receipt.
It is quite another matter if the conditions for the transfer of the deposit and the receipt itself were notarized. In this case, the court may require the return of funds to the failed buyer in double the amount, but for this he still needs to prove the seller’s non-compliance with the requirements written in the preliminary contract.
If you have any questions or need help preparing statement of claim to the court for the return of the deposit for the apartment, then write about it in the form below. Our duty lawyer is ready to help you promptly.
The applicant entered into a deal with the organization, the subject of which is the organization of a banquet in a restaurant. The transaction was made by the applicant solely as a result of a misunderstanding about its terms and deliberately false information. The applicant asks to ensure the return of the advance payment.
Head
Restaurant ______________
legal address: __________________
_______________________
address: __________________________
tel.: _________________
P R E T E N Z I A
about the refund of the advance payment
For a year, I concluded a deal with your organization, the subject of which was the organization of a banquet in the Restaurant __________. At the same time, I would like to draw your attention to the fact that this transaction was made by me solely as a result of my delusion regarding its terms, due to the provision of deliberately false information by the Restaurant employees.
I'm interested in the spec. the offer posted by you on your official website ______________: “2 tr. per person, when ordering a banquet. ______________ year I visited your restaurant. The purpose of my visit to the Restaurant was only an inspection and comparison with other restaurants.
I did not plan to order a restaurant that day, intending to come for this later, after consultations with people close to me, when I finally decide on the choice of a restaurant. To my deep regret, the false sense of fear inspired by me of fear of missing out on a successful purchase persuaded me (thanks to the excellent eloquence of the restaurant staff, who described in more than detail the extraordinary, according to her, the possibility of booking a banquet hall, which is now difficult anywhere, anywhere was to reserve, given that in 2 months it will be September, and even at such a cheap price) to the idea of the need to make an advance immediately, so that for me the Restaurant in __________ __________. A banquet hall for 25 people was reserved.
In order to persuade me to urgently make an advance payment, the restaurant staff told me that in your restaurant: 1) we can bring our own cake and not order it additionally at the restaurant; 2) we can use the musical accompaniment that we will order independently from third parties, etc.
I had no intention of making an advance payment that day. At the same time, the employees of the Restaurant assured me that making an advance payment does not oblige me to anything: I can take the amount of the advance payment at will at any time. On that day, I would never have made an advance, if my direct question about whether the amount of the advance paid would be returned to me in full if I canceled the reservation of the banquet hall, the employee would not have assured that in this case the entire amount of the advance would be instantly and without any problems are returned to the customer, because it is in September that the order of banquet halls is in great demand, as this is the best time for weddings. Trusting the representative of your restaurant, I gave my consent to make a deal on these terms. I draw your attention to the fact that the condition on the price of a major purchase (including prepayment, payment) is an essential condition for the formation of the voluntary will of the buyer.
Separately, I note that the specified assurances addressed to me about the allegedly problem-free return of the advance, in addition to me, were heard by ___________, who came with me to the Restaurant to inspect the banquet hall, which guaranteed me that, if necessary, would ensure the presence in court to testify. These testimonies will confirm the fact that your employees disseminated false information when concluding a transaction. Meanwhile, according to articles 8 and 10 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On Protection of Consumer Rights", the seller is obliged to bring to the attention of the buyer all the necessary information about the product being sold, which must contain information about the price and conditions for purchasing goods.
After much persuasion, I was required to make an advance payment in the amount of __________ rubles. I paid and asked for a contract, which will specify all the conditions on which an agreement was reached. ___________ accepted money from me and said that in this case I was not supposed to have a contract, I also did not need to know anything about the exact legal name of the restaurant. However, in accordance with Art. 8 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights”, the consumer has the right to demand the provision of the necessary and reliable information about the manufacturer, the seller, his mode of operation and the goods (works, services) he sells, which, in violation of the law, was done did not have.
After making an advance payment, they gave me a piece of paper that cannot be called in any other way: the piece of paper has no name legal entity, its details, the seal of the organization, a KKM check is not attached to it. In addition, on this piece of paper there is both the name "_______________", and, at the same time, the stamp "______________". The phrase appeared in the text of the piece of paper: “a deposit in the amount of ______ rubles. accepted. ______________, ___________. signature".
A few days after the payment, I called the Restaurant to once again hear the guarantee about the details of the banquet, which was agreed upon at the conclusion of the transaction. During the conversation, it turned out that the Restaurant has no desire and technical ability to see any musicians in its hall, except for its own, that you cannot bring your own cake - it must be ordered at the restaurant itself. However, all these additional services are subject to separate additional payment. However, by virtue of Article 16 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights”, the contractor is not entitled to perform additional services for a fee without the consent of the consumer. The terms of the deal, according to which I had the right to hire my musicians and order exactly the cake that we dreamed of, was an essential condition for ordering a banquet hall. Thus, in violation of Art. 10 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights”, the necessary and reliable information about works and services was not provided in a timely manner, enabling me to make the right choice for me as a consumer. By virtue of the same article, I have been granted the right to demand from the contractor compensation for losses caused by unreasonable evasion from concluding the contract, and if the contract has been concluded, to refuse to perform it within a reasonable time and demand the return of the amount paid for the goods and compensation for other losses.
In turn, after the payment was made, I visited several more restaurants, and it became clear to me that the banquet hall of your restaurant does not suit me at all because of your violation of the original guarantees, dimensions of the banquet hall, furnishings, inflated prices and quality of service, which I later learned from my friends. The employees of your restaurant were immediately notified of my refusal of the transaction. I received a rude refusal to my legitimate demand for the return of the deposited amount. I was very outraged, and, based on their guarantees received from the employees of your restaurant, I felt cheated. In addition, I informed you about my decision more than a month before the appointed date of the banquet, and, given the specifics restaurant business(preparation of perishable products) and the "wedding seasonality" of the autumn period, I do not understand your refusal to return the money.
When you try to resolve the dispute out of court, you refer to the fact that, according to the terms of the current legislation, it is not returned. However, we additionally draw your attention to the fact that the ADVANCE payment was made before the issuance of a piece of paper with a record of the deposit. Thus, the provision of incomplete and false information to me by the staff of the Restaurant has formed a deliberately wrong idea in me regarding the terms of the transaction I have made that are essential to me. And if, trusting in deceivers, I had not been mistaken, I would not have made the indicated transaction. At the same time, I really want to believe that the manifestation of this dishonesty in the actions of the Restaurant employees is a rare and unworthy exception from general rule, and not accepted in such a well-known company as the standard of customer service.
In accordance with Art. 12 of the Law of the Russian Federation "On Protection of Consumer Rights", the contractor is responsible for not providing information about the service. In this case, the consumer has the right to demand from the contractor within a reasonable time to refuse to execute the transaction and demand the return of the amount paid and compensation for other losses.
I hereby inform you about the termination of the transaction due to the fact that the said transaction was made by me solely as a result of my delusion regarding its terms, due to the provision of deliberately false information.
I also additionally inform you that, on the basis of Art. 13 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On Protection of Consumer Rights", the contractor is liable for violation of consumer rights. If the court satisfies the requirements of the consumer established by law, the court shall exact from the contractor for non-compliance with the voluntary satisfaction of the requirements of the consumer a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer.
In view of the foregoing, and guided by Articles 8, 10, 12, 13 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On Protection of Consumer Rights", 167, 178 and 179 of the Civil Code of the Russian Federation, I ask you to ensure that the amount of the advance payment is returned to me in the amount of 30,000 (thirty thousand) rubles received from me by deceit and intentional misrepresentation.
In case of failure to satisfy the requirements specified in this claim, I will be forced to apply to the court to protect my legal rights and interests with a claim for the return of the specified advance amount; the amount of interest for the illegal use of other people's money; reimbursement moral damage and all legal costs incurred, as well as to initiate a criminal case on the fact of fraud, in which the legitimacy of using the name of the Restaurant, its relationship with "________________", the correspondence of legal addresses to the actual ones, as well as the presence of signs of one-day firms (with subsequent blocking of the account and forced liquidation).
I hope to understand the need for a pre-trial solution to the above problem, and if the above requirements are met, for my part, I guarantee the refusal to send relevant complaints to the state regulatory authorities (the Prosecutor's Office of the city of Moscow, Rospotrebnadzor, the Federal Tax Service, etc.) about the actions of your Restaurant.
Applications:
1. Approximate form of a Complaint to the Prosecutor's Office of Moscow - 3 sheets;
2. Approximate form of a Complaint to the RPN - 3 sheets;
___________________ of the year
__________________ ___________________
Obligations of the Civil Code of the Russian Federation must be duly performed in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements. According to Art. 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation and a unilateral change in its conditions are not allowed, except as otherwise provided by law. In accordance with Art. 381 of the Civil Code of the Russian Federation, upon termination of the obligation before the start of its execution by agreement of the parties or due to the impossibility of performance (Article 416 of the Civil Code of the Russian Federation), the deposit must be returned. If the party that gave the deposit is responsible for non-performance of the contract, it remains with the other party. If the party that received the deposit is responsible for non-performance of the contract, it is obliged to pay the other party the double amount of the deposit.
How is the return of the deposit for the apartment processed?
- Contract of carriage, chartering, transport expedition
- Contract of transfer, alienation
- Contract agreement: household, construction, subcontract
- contract of assignment, contract of guarantee
- Supply contract, contracts
- Rental agreement: household, construction
- Contract for life annuity, life maintenance
- Loan agreement, gratuitous provision of services
- Insurance contract, reinsurance
- Employment contract with an employee
- Contract of assignment of rights and transfer of debt
- Student agreement with an employee
- Memorandum of association, joint venture agreement
- Storage agreement, liability
- Other contracts
Contracts by tags Quote for the Ages One minute is enough to be surprised; it takes many years to do an amazing thing. (TO.
Claim for refund of advance payment for goods
Unless otherwise provided by law or an agreement, a person who has not performed or improperly performed an obligation shall be liable unless he proves that proper performance was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, breach of obligations on the part of the debtor's counterparties, the absence of the goods needed for execution on the market, and the debtor's lack of the necessary funds.
According to Art. 395 of the Civil Code of the Russian Federation for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds is payable.
Info
Home → Forms → Requirements → Demand for the return of the deposit in double size by the party that received the deposit, responsible for non-fulfillment of the obligation Subject of the document: Requirements Text version file: 1.9 kb Save document: Download document » Sample document: (name of Party-1) Address : from (name of Party-2) Address: DEMAND for the return of the deposit » » between Party-1 and Party-2, an agreement on the deposit was concluded (hereinafter referred to as the “Agreement”). Deposit in the amount of () RUB. was paid by the Party - » » , which is confirmed.
» » d. The Party- became aware of the violation by the Party- of its obligations under the Agreement, viz. P. Agreement, as well as paragraph 2 of Art. 381 of the Civil Code of the Russian Federation provides for the responsibility of the Party receiving the deposit for failure to fulfill the Agreement in the form of paying a double amount of the deposit.
Attention
Usually, circumstances are indicated that may prevent the completion of the transaction for reasons that do not depend on the parties planning to complete it, namely:
- sudden illness;
- refusal to issue a mortgage;
- a sharp deterioration in the financial situation.
The deposit can be returned if both parties agree to terminate all obligations before the start of the transaction, that is, the decision of one party not to sell, and the decision of the other party not to buy the premises. In this case, the matter can be settled peacefully, without disagreements.
If the case goes to court, then they may be required to return the deposit in double size if the contract fails due to the fault of the seller who has not fulfilled his obligations prescribed in the preliminary contract.
Sample pre-trial claim for the return of a deposit for the purchase of an apartment
Important
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My mother entered into a preliminary contract for the sale of a private house in the amount of 1,100,000 rubles, of which she paid 100,000 rubles in cash in advance, because. the seller said that they asked for a deposit in order to purchase an apartment for him. She gave him the money in front of witnesses. Shortly thereafter, it turned out that the house was on unregistered land.
Mom decided not to take risks and refused to buy this house.
Amount (the amount to be returned if the buyer refuses to complete the transaction). The refinancing rate of the Bank of Russia from
at the time of filing a claim is %. Calculation: . The amount of interest for the use of other people's money will be. Based on the foregoing, in fulfillment of the obligations stipulated by the Agreement of the year, I ask you:
- Pay me rubles, the rest of the deposit provided for [p.