[ Ivanov Vladimir Vladimirovich]

Address: [ 125171, Moscow, st. 3rd Radiatorskaya, 1, apt. 2]

From [ Petrov Yuri Anatolyevich]

Address:

Claim

Dear [ Ivanov Vladimir Vladimirovich], due to failure to fulfill the obligations imposed on you by the Agreement dated [11/26/2014], I address you with this Claim and explain the following:

[11/26/2014] years between me, [ Petrov Yuri Anatolyevich] (Buyer), and you, [ Ivanov Vladimir Vladimirovich] (Seller), an Agreement was concluded, according to which the Seller undertakes to sell to the Buyer, and the Buyer to purchase and pay for the property (apartment) located at the address: [ Moscow, st. Marshala Katukova, 1, bldg. 2, apt. 3] .

In accordance with clause 12 of the Agreement, to secure the obligations assumed to purchase the Object, the Buyer transferred, and the Seller received, funds in the amount of [100,000 (one hundred thousand)] rubles.

Based on this fact, [11/26/2014], you wrote a receipt for receipt of funds in the amount of [100,000 (one hundred thousand)] rubles as a deposit under the Agreement dated [11/26/2014].

In accordance with clause [15] of the Agreement, the Sales and Purchase Agreement is signed by the parties no later than [12/10/2014]. The estimated date for signing the purchase and sale agreement is [12/06/2014], which can be changed by agreement of the parties.

For the proper fulfillment of obligations under the Agreement, I took appropriate measures: namely, I prepared funds to pay for the Apartment under the purchase and sale agreement, and repeatedly sent letters and messages requesting approval of the place and time of concluding the agreement for the sale and purchase of the apartment. The apartment suited me completely, and I was not looking for another option for purchase. But, as it later turned out, that on your initiative, [ apartment located at the address: Moscow, st. Marshala Katukova, 1, bldg. 2, apt. 3], was sold to a third party for a higher price. I was not properly notified of your refusal to fulfill obligations under the Agreement dated [11/26/2014]. These circumstances put me in a difficult situation and caused me significant losses.

According to Art. 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly 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 customs or other usually imposed requirements.

According to Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law.

In accordance with Art. 381 of the Civil Code of the Russian Federation, if the obligation is terminated before the start of its performance 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 who gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for the failure to fulfill the contract, he is obliged to pay the other party double the amount of the deposit. In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.

According to [clause 20] of the Agreement, if, within the period specified in clause 15 of the Agreement, and on the terms agreed upon in accordance with this Agreement, at the initiative of the seller, the signing of the purchase and sale agreement for the Object did not take place (including due to its failure to fulfill of its obligations) the amount specified in this Agreement must be returned to the Buyer in double amount within 2 business days from the date of request.

Thus, you, having received as security for the obligation to conclude an agreement for the sale and purchase of the Apartment and in payment for the Apartment a deposit in the amount of [100,000] rubles, did not fulfill (or rather, evaded fulfilling) this obligation and, therefore, are obliged to pay me a double amount a deposit in the amount of [200,000] rubles.

[01/05/2015] [100,000] rubles were returned to me, but in violation of the terms of the Agreement, you refused to return the deposit amount in double amount, citing the rapid increase in the exchange rate against the ruble and the fact that this fact is a circumstance force majeure (force majeure).

According to paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, a person who has not fulfilled or improperly fulfilled an obligation is liable unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, violation of obligations on the part of the debtor's counterparties, lack of goods on the market necessary for execution, or lack of necessary funds from the debtor.

According to Art. 395 of the Civil Code of the Russian Federation for the use of someone else’s funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment. The amount of interest is determined by the discount rate of bank interest at the place of residence of the creditor, and if the creditor is a legal entity, at its location on the day of fulfillment of the monetary obligation or its corresponding part. When collecting a debt in court, the court may satisfy the creditor's claim based on the discount rate of bank interest on the day the claim was filed or on the day the decision was made. These rules apply unless a different interest rate is established by law or agreement. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount. Interest for the use of someone else's funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or agreement.

According to the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 No. 13/14, when calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to 360 and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs.

Interest is accrued until the moment of actual fulfillment of the monetary obligation, determined on the basis of the conditions on the procedure for payments, the form of settlements and the provisions of Article 316 of the Civil Code of the Russian Federation on the place of fulfillment of the monetary obligation, unless otherwise established by law or agreement of the parties.

Within the framework of Art. 395 of the Civil Code of the Russian Federation, I distinguish two periods:

1. The period for which the calculation was made from [11/26/2014] to [01/05/2015]. Number of days of delay: [41].

Amount [100,000] rubles (amount of deposit in accordance with [clause 12] of the Agreement).

Calculation: [100000x41x8.25/36000=939.58] rubles.

The amount of interest for the use of other people's funds will be [939.58] rubles.

2. The period for which the calculation was made from [01/05/2015] to [01/12/2015].

Number of days overdue: [8].

Amount [100,000] (amount to be returned if the buyer refuses to complete the transaction).

The refinancing rate of the Bank of Russia from [11/26/2014] at the time of filing a claim is [8, 25]%.

Calculation: [ 100000x8x8.25/36000=183 rubles] .

The amount of interest for using someone else's money will be [183 rubles].

Based on the above, in fulfillment of the obligations provided for in the Agreement dated [11/26/2014],

I ask you to:

1. Pay me [100,000] rubles, the remainder of the deposit provided for in [clause 20] of the Agreement and Art. 381 Civil Code of the Russian Federation.
2. In case of refusal to fulfill obligations, please inform me in writing of the reasons and send a response to the address: [ 123592, Moscow, Stroginsky Blvd., 1, bldg. 2, apt. 3]

Additionally, I inform you that in the event of voluntary fulfillment of obligations under this Agreement, I will refuse to make claims against you

On payment of interest for the use of other people's funds in the amount of [939.58] rubles.

On payment of interest for late return of funds in the amount of [183 rubles].

Otherwise, I will be forced to go to court to protect my legal rights. Legal expenses spent on state fees in court, legal fees, as well as compensation for moral damages will be recovered from you in court.

Application:

1. Copy of the Agreement dated [11/26/2014].
2. A copy of the receipt dated [11/26/2014].
3. Copy of correspondence.

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Classmates

When purchasing an apartment, you may be required to make a certain cash contribution as an advance payment. After reviewing the title documents for the residential premises and checking the owners’ passports, it is necessary to draw up a preliminary agreement. It specifies all the conditions for purchasing an apartment, the main ones being the price and payment procedure.

After drawing up the contract, you must make an advance payment as a guarantee of fulfillment of the contractual terms and confirmation of the seriousness of your intentions. This could be an advance or a deposit.

Difference from deposit

Advance and Deposit is a certain amount of money that the buyer makes to the home owner as payment for the purchased property. Documents are drawn up in writing on paper and serve as an addition to the preliminary agreement.

• Prepaid expense– this is an advance payment, which is not a legal document and if the transaction fails, it is returned to the buyer. In this case, the party through whose fault the transaction did not take place does not incur financial losses.
• Deposit– these are certain financial obligations of the parties to the transaction. If the transaction fails, the culprit incurs monetary losses equal to the amount of the deposit ().

Important! The difference between an advance and a deposit is only in the financial consequences. If the advance can be taken over by a real estate agency, then the deposit can only be paid by the owner of the apartment.

The concept of advance and deposit. The difference between an advance and a deposit is discussed in this video:

The main reason for problems with the return of advance payments

Under certain circumstances, the purchase and sale of an apartment may not take place, even after concluding a preliminary agreement and making an advance payment. In this case, the entire amount of money is returned to the buyer, regardless of the reasons for which it did not take place.

If the seller changes his mind about selling the apartment, he returns the entire amount to the buyer. However, he is not obliged to explain the reason for his refusal to purchase. However, the seller may refuse to return the advance payment, citing the fact that he paid this amount as an advance payment for another apartment.

If it is not possible to come to an amicable agreement, then it is necessary to write a statement of claim to the judicial authorities demanding the return of the entire amount of the advance, drawn up according to the sample. In this case, you can count on final success and the court's decision will be in your favor.

An advance is an intention to purchase, not a commitment. You are not obligated to purchase a property if you change your mind or have other reasons to refuse to purchase this apartment.

Return if the buyer fails the deal

If the transaction did not take place due to your fault and you want to return the advance payment, then apply for a refund to the owner of the apartment. The seller returns the money voluntarily, and all preliminary agreements and agreements are terminated. In this case, each participant remains in his own interests.

However, the seller may not return the advance and not issue documents, citing the fact that since you paid the money, you are obliged to buy the apartment. In this case, you must send a written notice requesting a refund of the advance.

If this does not help, then a statement of claim is filed with the judicial authorities at the place of registration or registration of the owner of the apartment. Copies of all documents are attached to the application:

• preliminary agreement;
• advance agreement;
• receipt;
• notice or note of delivery of this demand.

Reference: All documentation is submitted in triplicate. One is sent to court, the other remains with the plaintiff, and the third is transferred to the defendant.

There are situations when the seller deliberately includes a non-refundable advance clause in case of refusal to purchase an apartment. The trick of such an agreement is that obligations are imposed only on the buyer, and the owner is not responsible for the failure of the transaction. If you go to court, then in this case you may lose the case, since you yourself signed the agreement.

Also You can demand monetary compensation for late repayment of the advance (). Typically, such requirements are specified in the preliminary agreement. Court proceedings can last more than one hearing and all legal costs are borne by the losing party.

How to get it back from a realtor or real estate agency?

If the owner of the apartment lives in another city, he can entrust the sale of the property to a real estate agency. At the same time, he enters into an agreement with him for the provision of intermediary services, provides copies of the passport and title documents for the residential premises.

In this case, you will deal with realtors who will draw up a preliminary agreement and an advance agreement. After signing, a certain amount of money is made as an advance payment and the agency director takes it against receipt for temporary storage.

Attention! A real estate agency can only enter into a preliminary agreement with you and issue an advance payment in the form of an advance payment. The deposit can only be received by the apartment owner or an agency on the basis of a notarized power of attorney.

The realtor will try to include in the preliminary contract a clause on the non-return of the entire amount of money (advance payment) in case of refusal to purchase the apartment. He will warn you about this in advance, since he does not need subsequent proceedings that could affect his reputation. By signing this agreement, you agree that in case of refusal to purchase an apartment, the advance payment remains with the agency.

When signing such an agreement, the real estate agency is not responsible for the failure of the transaction and, if the owner refuses to sell the apartment, will return the entire amount to you. If you refuse, you must write a claim.

However, if you change your mind about buying an apartment and would like to return the amount paid, you can file a claim in court. An advance payment does not bear the financial responsibility of the parties and the introduction of a clause on non-refund of money is contrary to legislative norms (422 of the Civil Code of the Russian Federation).

Article 422 of the Civil Code of the Russian Federation. Treaty and law

1. The agreement must comply with the rules obligatory for the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion.
2. If, after the conclusion of an agreement, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the agreement, the terms of the concluded agreement remain in force, except in cases where the law establishes that its effect extends to relations arising from previously concluded agreements.

In this case, you can count on a positive outcome of the case, but it is better to think about everything in advance before signing documents and depositing money.

Can you return it by receipt?

If you are purchasing an apartment yourself and do not want to deal with realtors, then you will not be able to draw up a competent preliminary agreement and down payment. In this case, all agreements and prepayments can be made by receipt. It states:

1. data of the parties to the transaction;
2. data about the object (address, floor, area, cadastral number);
3. price;
4. deposited amount.

After drawing up the receipt, the owner puts his signature, thereby confirming that he has received a certain amount of money. You still have the receipt in your hands, and the seller has the money.

Making an advance against a receipt does not impose material obligations on the parties to the transaction. The receipt is written by hand by the owner of the apartment and is analogous to an advance payment. If he changes his mind about selling the apartment, he returns the entire amount of money.

The buyer may also refuse to purchase the property and demand a refund of the entire amount. In this case, the owner returns your money in exchange for a receipt. If the seller refuses to return the money, then the return procedure is similar to when making an advance payment.

Claim for return

If the transaction does not take place, then you can demand the return of the advance in full. In case of refusal, you must send a return request by telegram or letter with notification. Then draw up a statement of claim to the court at the place of registration and attach copies of documents on the basis of which the refund of the amount of money is requested, namely:

• a copy of the plaintiff’s passport (front side and registration);
• preliminary agreement and advance payment (copies);
• receipt for receipt of money (copy);
• notification by letter or telegram;
• statement of claim (copy);
• receipt for payment of state duty (copy).

The sample claim for refund states:

1. the name of the court to which you are applying;
2. information about the plaintiff and defendant;
3. a detailed description of the circumstances under which the advance was made;
4. measures taken to peacefully resolve disputes;
5. the amount of debt, plus additional expenses (drawing up a claim, receipt of payment of state duty, etc.).

Reference: If the contract did not stipulate penalties, then if the claim is drawn up correctly, the advance payment will be returned to you and all confirmed expenses will be reimbursed. You can also request compensation for moral damages.

In what cases is it not returned?

An advance payment is an advance payment that is not a legal document and is returned to the buyer if the transaction fails. Wherein the party through whose fault the transaction did not take place does not suffer financial losses.

The advance payment is not refundable if the contract specifies the conditions under which it remains with the seller (fine, moral damages for refusal to purchase, etc.), but not in others.

However, the advance payment does not bear the financial responsibility of the parties and the introduction of a non-refund clause is contrary to legislative norms (422 of the Civil Code of the Russian Federation).

Prepayment is not refundable if it is made as a deposit. In this case, if the deal fails due to your fault, then you will not be able to return the funds (clause 2 of the Civil Code of the Russian Federation). You can file a return claim using the sample.

When signing contracts, be careful and pay attention to the terms of the deal. If you have never encountered the purchase of an apartment and paperwork, then contact a realtor or lawyer. He will advise you, help you draw up the necessary documents and bring you to the registration chamber.

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Under the Civil Code of the Russian Federation, obligations must be fulfilled properly 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 customs or other usually imposed requirements. According to Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law. In accordance with Art. 381 of the Civil Code of the Russian Federation, if the obligation is terminated before the start of its performance 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 who gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for the failure to fulfill the contract, he is obliged to pay the other party double the amount of the deposit.

How is a refund of the deposit for an apartment processed?

• Contract of carriage, chartering, transport expedition
• Agreement of transfer, alienation
• Contract: household, construction, subcontract
• Contract of agency, contract of guarantee
• Supply agreement, contracting
• Rental agreement: household, construction
• Life annuity agreement, life maintenance
• Loan agreement, free provision of services
• Insurance and reinsurance agreement
• Employment contract with the employee
• Agreement on assignment of rights and transfer of debt
• Student agreement with employee
• Foundation agreement, agreement on joint activities
• Agreement of storage, liability
• Other agreements

Agreements by tags Quote for centuries To be surprised, one minute is enough; It takes many years to make an amazing thing. (TO.

Claim for refund of advance payment for goods

Civil Code of the Russian Federation, unless otherwise provided by law or contract, a person who has not fulfilled or improperly fulfilled an obligation is liable unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, violation of obligations on the part of the debtor's counterparties, lack of goods on the market necessary for execution, or lack of necessary funds from the debtor.
According to Art. 395 of the Civil Code of the Russian Federation for the use of someone else’s funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment.

Info

Home → Forms → Requirements → Request for the return of the deposit in double amount by the party who received the deposit, responsible for failure to fulfill the obligation Subject of the document: Requirements Text version file: 1.9 kb Save the document: Download the document » Sample document: (name of Party-1)Address : from (name of Party-2) Address: REQUIREMENT 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 - » » g., which is confirmed.

» » The Party became aware of the Party's violation of its obligations under the Agreement, namely. Clause of the Agreement, as well as clause 2 of Art. 381 of the Civil Code of the Russian Federation provides for the liability of the Party receiving the deposit for failure to fulfill the Agreement in the form of payment of double the amount of the deposit.

Attention

Usually, circumstances are indicated that may prevent the completion of a 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 financial situation.

The deposit can be returned if both parties agree before the start of the transaction to terminate all obligations, 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 disagreement.

If the case goes to court, they may be required to return the deposit in double amount if the contract breaks down due to the fault of the seller who has not fulfilled his obligations specified in the preliminary contract.

Sample pre-trial claim for the return of the deposit for the purchase of an apartment

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My mother entered into a preliminary agreement for the purchase and sale of a private house in the amount of 1,100,000 rubles, of which she paid 100,000 rubles in cash in the form of an advance payment, because The seller said that they were asking for a deposit to purchase the apartment. She gave him the money in front of witnesses. Soon after, 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). Bank of Russia refinancing rate from
at the time of filing the claim is %. Calculation: . The amount of interest for using someone else's money will be . Based on the above, in fulfillment of the obligations stipulated by the Agreement of the year, I ask you:

1. Pay me rubles, the remainder of the deposit provided for [p.

20] Agreements and art. 381 Civil Code of the Russian Federation.

In case of refusal to fulfill obligations, please inform me in writing of the reasons and send the answer to the address: )