Provision of services for the obligation to sell real estate. What should be foreseen in an agreement with a realtor when buying and selling real estate? Real estate services agreement

The rights and obligations of the consumer of real estate services (client) are governed by general provisions Civil Code of the Russian Federation for obligations repayable rendering services, agency obligations, commission and surety, as well as agreements concluded between the client and the real estate company.

A. A. Batyaev points out that the contract for the provision of real estate services is governed by the provision of Ch. 39 of the Civil Code of the Russian Federation ... “this product is public and subject to Art. 426 of the Civil Code of the Russian Federation. From the content of Art. 426 and 427 it follows that the real estate firm is obliged to provide its services to everyone who turns to it. The firm has no right to give preference to anyone. " The main contingent of consumers of real estate services are individuals, therefore, to the client - natural person the rules of the RF Law of February 7, 1992 No. 2300-1 "On Protection of Consumer Rights" (as amended on December 21, 2004) will apply. Let's list these rights:

The real estate firm must submit full information about the services provided. When a client only contacts a real estate company without concluding an agreement with it for the provision of real estate services, it is most expedient to explain to the client the whole range of services that can be provided to him based on the client's requirements. At the same time, the approximate terms of the services and their cost can be negotiated. The real estate firm does not provide the client with all information regarding its services. This is done for the reason that information (for example, about the location necessary for the client apartment, its value, etc.) can be attributed to the trade secret of this real estate company.

In the event that the consumer of real estate services is ready to use the services of this real estate company, he is provided with information about the services of the contract for the provision of real estate services. In addition to the contract for the provision of real estate services, depending on the nature of the actions that must be performed for the client, it may be necessary to conclude an agency contract, commission, order.

In these cases, the real estate company must advise the client on all the terms of the specified contracts. But the realtor is not obliged to do this, he only answers the questions asked by his client. Before signing any contracts with a real estate company, the consumer needs to carefully study all the proposed conditions. It is important to pay attention to the subject of the services that the real estate company should provide. If, for example, a client needs to buy a one-room apartment in the city center (preferably on some specific streets), located on the third floor, then it is necessary to describe in detail all these nuances in the contract, otherwise the realtor will be considered to have properly fulfilled his contractual obligations, even if he does not take into account the wishes of his client. And the client will be obliged to accept everything performed under the contract by the realtor and pay for his services. Therefore, all the "wishes" of the client about the location of the apartment (or, for example, where the windows should go) should remain not oral wishes, but be recorded in the contract for the provision of real estate services.

The client should inquire about such important issues as the transfer of the risk of accidental death, the liability of the parties, the right to retain by the realtor everything that he received under the transaction concluded in the interests of the client, the encumbrance of real estate with the rights of third parties.

The real estate firm must provide and legal information about all legal actions that need to be performed by the realtor in order to fulfill the client's requirements. In the course of transactions with real estate, it may be necessary to privatize residential premises, acquire ownership of a land plot, formalize an inheritance, register a real estate transaction, go to court and represent the client's interests in court.

The requirement for the quality of services in each case will be different. They directly depend on the conditions stipulated in the contract for the provision of real estate services.

If the client needs, for example, to exchange apartments, the realtor will be deemed to have fulfilled the contract if he transfers the apartments to the client, where it is possible to stay based on sanitary requirements... These are apartments in houses that are not in emergency condition and are connected to gas, electricity and water supply. In these cases, when the apartment is in a new building, it must be a house handed over to the housing office. In practice, cases are quite common when the buyer is moved into an apartment in a new building, which has not yet been commissioned by construction, has not been accepted for service in the housing office. This threatens that at the onset of the heating season, the house will not be heated, gas and energy will not be supplied to it. Nobody will bear responsibility for all this. While the sides ( Building company, the owner of the building, the buyer, the housing office, the real estate company) will be in court to find out who is to blame and who will bear property responsibility, the issues of utilities at home will not be resolved.

“The construction market is in a fever again: one after the other, there are reports of rallies and hunger strikes by failed new settlers who were left without money and apartments paid for at the stage of the foundation pit,” writes I. Nevinnaya and T. Efremenko. According to the analytical center "Indicators of the real estate market", of the new houses put up for sale last year, 20% were not even prepared for construction sites, and 55% were new buildings, the bulk of the apartments in which were sold out in the early stages of construction.

Thus, the Russian construction business today is primarily focused on attracting funds from equity holders, most of whom are citizens.

Ways such as using own funds and the development of bank loans is practiced to a lesser extent.

When allocating a land plot for a residential microdistrict, the municipality received not only a certain share of apartments, but also negotiated with the developer the "social component" of the project for the construction of engineering networks, or the construction of a kindergarten. This naturally increased the cost of construction and, ultimately, was paid for by the buyers of the apartments.

A. Korsak, head of the Moscow economic security department, believes that deliberately unscrupulous organizations are still frequently encountered on the market. They offer potential buyers of apartments other people's sites and houses as their own and collect money. Other firms, having won a tender for building a house, attract co-investors, receive money from them, but they are in no hurry to build. Acquiring more and more new sites and putting up a future new building for sale, these companies accumulate huge funds, “spend” them without spending on construction, and make money on this. After some time, the company can return to the equity holders the amounts paid several years ago, but without interest and penalties.

If the contract specifies that the apartment must be located in a certain place (on some specific streets, certain floors), then the contract will be considered fulfilled in accordance with the quality requirement if all additional client requirements are met and the house meets the requirement previously indicated.

If the requirement for the quality of the service provided is not met and the defects of the goods were not agreed by the seller, the buyer, to whom the goods of inadequate quality were transferred, have the right, at his choice, to demand from the seller:

a commensurate reduction in the purchase price;

gratuitous elimination of defects in the goods within a reasonable time;

reimbursement of their expenses for the elimination of defects in the goods.

In the event of a significant violation of the requirements for the quality of the goods (detection of fatal deficiencies that cannot be eliminated without disproportionate costs or time expenditures, or are revealed repeatedly, or appear again after their elimination and other similar shortcomings), the buyer has the right, at his choice:

refuse to fulfill the contract of sale and purchase and demand the return of the amount of money paid for the goods;

demand the replacement of goods of inadequate quality with goods that comply with the contract.

These rights are provided for by Art. 475 of the Civil Code of the Russian Federation.

A significant violation of the requirements for the quality of the goods will manifest itself just in the event that the client was transferred to an apartment that does not meet the requirements specified in the contract for the provision of real estate services. The client also has the right to receive goods free of the rights of third parties. According to Art. 460 of the Civil Code of the Russian Federation, the real estate company is obliged to transfer the goods to the buyer free of any rights of third parties, except for the case when the buyer agreed to accept the goods encumbered with the rights of third parties.

Failure by the seller to fulfill this obligation gives the buyer the right to demand a reduction in the price of the goods or terminate the purchase and sale agreement, if it is not proven that the buyer knew or should have known about the rights of third parties to this product. For example, a realtor buys an apartment for his client, in which a citizen lives (the legatee of the inheritance). The realtor must seek the client's consent to purchase such an apartment. If the realtor does not do this, the client has the right to demand from him the reimbursement of part of the purchase price, or the termination of the sale and purchase agreement and the contract for the provision of real estate services, compensation for all losses.

When the goods are withdrawn from the buyer by third parties on grounds that arose before the execution of the sales contract, the seller is obliged to reimburse the buyer for the losses incurred by him, unless he proves that the buyer knew or should have known about the existence of these grounds.

The agreement of the parties on the release of the seller from liability in the event that the purchased goods are reclaimed from the buyer by third parties or on its limitation is invalid. If a third party, on the basis that arose before the execution of the sale and purchase agreement, brings a claim for the seizure of the goods, the buyer is obliged to attract the seller to participate in the case, and the seller is obliged to enter into this business on the buyer's side. The buyer's failure to involve the seller in the case relieves the seller from liability to the buyer if the seller proves that by taking part in the case, he could have prevented the seizure of the sold goods from the buyer. The seller, attracted by the buyer to participate in the case, but did not take part in it, is deprived of the right to prove the incorrectness of the business by the buyer. These rules are specified in Art. 461 of the Civil Code of the Russian Federation.

Among the duties of the consumer of the services of a real estate company, one can name, first of all, their obligation to pay for the services of a real estate company. In connection with the payment for services, the question often arises of the realtor withholding everything received under the transaction with the client (on the basis of Articles 359, 360 of the Civil Code of the Russian Federation) and the client's responsibility for late payment or non-payment for the services of the real estate company. Withholding is expressed in the fact that a realtor, for example, who bought an apartment on behalf of a client, retains it and does not transfer it to the client, since the client has not paid in full for the services of the real estate company. Further, the realtor has the right to sell this apartment and satisfy his remuneration from this amount. These retention rules apply regardless of whether they are specified in the contract or not.

But if the contract directly provides for a prohibition on retention by the realtor, then the rules of Art. 359, 360 of the Civil Code of the Russian Federation will not apply to the legal relations of the parties and, accordingly, the realtor will not be able to legally retain the client's property received by him.

In addition to timely payment for the goods, the client must comply with the requirement of the realtor on the commercial secrets of his company (not to disclose information to third parties that the realtor will not allow to disclose). Non-compliance trade secrets real estate firm may entail property liability of the client. The contract must necessarily stipulate what information the client does not have the right to disclose, and what responsibility is provided for their disclosure.

Often, a real estate company provides in the contract a condition that the client is not entitled to contact other real estate companies for the provision of services with which he applied to this real estate company. For violation of this condition, the real estate company may collect from the client the cost of the service that it could provide to him. This rule will apply if it is provided for by the contract.

The consumer of the services of a real estate company is also obliged to transfer to the realtor property (for example, an apartment for sale), of the quality agreed with the realtor. For example, he must warn the realtor about all the rights of third parties in relation to the apartment being sold, in the condition specified in the contract.

If this requirement is not met, the realtor has the right to refuse to fulfill the contract of real estate services and demand compensation for losses from the client. But this must be necessarily provided for by an agreement for the provision of real estate services (with detailed description the order in which the realtor's losses will be determined).

Batyaev A.A. Realtor's guide. Rostov-on-Don. "Phoenix". 2006.S. 54.

Innocent I., Efremenko T. Apartment deception // Russian newspaper... 10/27/05 No. 241 (3910).

When intending to conclude a transaction for the sale and purchase of a property, the seller wants to sell it as quickly as possible and at a favorable price. Before listing his property for sale, he wonders how it would be better - or should he trust a real estate agency? If you decide to conclude an agreement with a realtor, then you need to imagine what it is, all its pros and cons. This will be discussed further.

Definition of an exclusive contract

It is important to understand that when listing your apartment for sale, other realtors will also sell it without your consent. Whoever implements the fastest gets the commission. You can also trust only one agency, conclude a so-called exclusive contract with it and free yourself from endless calls and inquiries about the apartment. But the realtor will give a guarantee that he will sell the object in as soon as possible and for the benefit of the seller.

There is no need to conclude an exclusive contract with the first agency that comes across. The choice of a realtor should be approached carefully.

An exclusive contract is a contract that provides preemptive right the agency's work to complete a transaction for the sale and purchase of a property with a specific client. This document contains a bilateral obligation, both on the part of the client (customer) and on the part of the real estate agency (executor).

The client fully trusts the agency to sell his property and accept funds by power of attorney, and the employees undertake to conscientiously engage in or sell for a commission. The agency will do its best to please the client, since each transaction provides for a benefit for him - profit. Realtors always take a commission, and it is not even very small.

Note very important point: An exclusive contract can be concluded with only one company, otherwise it will not be considered as such.

The seller pays nothing when concluding such an agreement. Sell ​​his object for the real market. The commission is added to this amount. The buyer pays it. He, in turn, also knows that such services are not provided free of charge.

A realtor who respects his work always works on exclusive contracts. So he will be sure that his efforts will not go unrewarded.

Signing conditions

The exclusive contract is concluded on the following general conditions:

1. The client must provide the agency with all the necessary information regarding the property being sold and collect all documents of title. This is necessary for the initial analysis of the object (how it was acquired, its detailed description, how much);
2. The specialist will carry out work on the assessment of the sold object, give legal advice on the documents. It may turn out that it is necessary to collect additional documents (consent of the owners, certificates, orders of state institutions, etc.);
3. A detailed explanation of the sale technology and the passage of the transaction itself;
4. When concluding an exclusive contract, you must pay close attention to the sale period. As a rule, it is 3-4 months (advertising brings the result only after one month);
5. It is very important to read the contract in person. It must specify a certain period, a clause providing for automatic extension of the period, or a clause containing the terms of termination of the contract (at the end of the validity period or by writing a statement by the customer).

Advantages and disadvantages of an exclusive contract

The pluses include the following points:

1. Protection of the seller from unprofessionalism and crime. By giving information to several agencies at once, sellers run the risk of becoming a victim of fraud. Information leakage may also occur, because realtors do not give any guarantees in words. It also happens that thieves can walk under the guise of buyers. In the future, the consequences will not be very pleasant, it is extremely difficult to find ends in such cases;
2. Protection of the legal and economic interests of the seller. Agencies can give a guarantee for the successful completion of a transaction, its specialists follow literally every step: for sale, displaying an object, fixing data potential buyers, conclusion, transfer of money to the seller and the object to the buyer. That is, the organization works for the client and strictly monitors its reputation;
3. Real estate appraisal and demand analysis. The seller may ask for a too high price for his apartment. It is necessary to rely on a real assessment of consumer demand. The appraisal of the apartment is impossible to make by eye. To find out the real price of an apartment, a realtor does a great job of assessing it, studying the market, in comparison with analogues, the cost of real sales;
4. Significant time savings. The seller wastes a lot of time explaining the same information to different people. Plus, even more time is spent on showing the apartment. If you entrust the sale of a reliable company, the number of risky contacts is significantly reduced and the chances of selling the object on favorable terms increase;
5. Effective advertising at the expense of the agency. The realtor gives the widest possible advertising for the sale of the object. All selling Internet resources work for a fee, so the seller saves not only time, but also money.

The only disadvantage is that the seller gives a kind of "oath of allegiance" to one realtor. This is where the main snag lies - the choice of the agency. This should be given the proper time. It is best to contact the same company where your loved ones or just acquaintances applied.

Reviews on the Internet should not be particularly trusted, without any problems you can write both positive and negative reviews.

There is a risk that you can get to unscrupulous specialists who will deliberately begin to discount the price in order to sell faster and get their commission. When concluding an exclusive contract, make sure that you are dealing with a professional specialist who works in a good company.

As a conclusion, we note that the pros far outweigh the cons. Selling real estate under an exclusive agreement is more profitable, although sellers may not understand this. But practice shows that apartments under such an agreement are much more successful and are sold faster than conventional options. Commercial rewards can work wonders.

Sample of an exclusive contract for the sale of real estate

AGREEMENT No. 77

paid rendering of services for the sale of a real estate object

Society with limited liability"AN" Azbuka Real Estate "represented by General Director Abramov Fedor Nikolaevich, acting on the basis of the Charter, hereinafter referred to as the" Contractor ", and citizen Yakovlev Andrey Arkadievich, passport series 97 15 No. 144912, subdivision code 212-045, issued by the Department of the Federal Migration Service of Russia for the city of Moscow, registered at the address: Moscow, the third street of Builders, house 25, apt. 13, hereinafter referred to as the "Customer", have entered into an agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Customer instructed, and the Contractor undertook to provide a range of services for the sale of the property located at the address: Moscow, Third Stroiteley Street, 25, Apartment 13 (hereinafter referred to as the Object).

1.2. The provided services the Customer undertakes to accept and pay.

1.3. Full description The object is indicated in Appendix No. 1 to this agreement.

2. OBLIGATIONS OF THE CONTRACTOR

The Contractor undertakes to provide the following services:

2.1. Consultation on emerging issues of purchase and sale of the Object.

2.2. Search for a buyer for the Object specified in clause 1.1.

2.4. Negotiations with Buyers, agreeing on a method of payment, deadline, registration of a transaction.

2.5. Preparation of documents for the implementation of a transaction with the Object, subject to the issuance of an appropriate power of attorney by the Customer.

2.6. Ensuring the safety of documents that were transferred by the Customer.

3. OBLIGATIONS OF THE CUSTOMER

In accordance with this Agreement, the Customer undertakes:

3.1. Provide copies of title documents for the Object.

3.2. Fill in Appendix No. 1, where you indicate a complete and reliable description of the Object. Inform the Contractor about the encumbrances on the Object, if any.

3.3. Do not conclude a similar agreement with other persons during the validity of this agreement, do not look for buyers. If proposals are received from buyers, then inform about the existence of this agreement and send them to the Contractor.

3.4. During the term of the agreement, do not perform actions without the Contractor that are aimed at encumbering the Object with the rights of third parties or alienation.

3.5. Provide access to viewing the Object for the Contractor and buyers.

3.6. Complete all the necessary formalities and actions required to complete the transaction for the sale and purchase of the Object.

3.7. Pay off all existing debts for electricity, heating, utility bills, telephone subscription fees by the time the transaction is completed.

3.8. Do not damage the Object or other actions that reduce its market value.

3.9. Provide the Contractor with information about your location, indicating your phone number and address.

3.10. Pay for the services provided by the Contractor in the manner and amount provided for in clauses 5.1, 5.2 of this agreement.

3.11. Sell ​​the Object to the buyer offered by the Contractor.

3.12. Within 3 (three) business days from the date of finding a potential buyer, give the Contractor consent or refusal to conclude a contract for the sale and purchase of the Object.

3.13. Provide exclusive rights to the implementation of the Object to the Contractor.

3.14. Pay for the services of the Contractor upon fulfillment of obligations.

4. TERM OF THE CONTRACT

4.1. The Agreement comes into force after signing by the Parties and is valid until September 14, 2017.

4.2. Termination of the contract is possible at the request of one of the parties, while the other party must be notified in writing about this 2 weeks before the termination of the contract.

4.3. Early dissolution of the contract by the Contractor is possible if he becomes aware of the violation of guarantees and obligations on the part of the Customer.

4.4. In case of unilateral termination of the agreement, the Customer and the Contractor are liable under section 6 of this agreement.

4.5. The obligations under the contract are considered fully fulfilled by the Contractor after state registration transfer of ownership under the contract of sale and purchase of the Object.

4.6. The customer instructs the Contractor to accept funds (deposit, advance payment) from the buyer on their own terms.

5. CALCULATIONS

5.1. The customer must pay a commission to the Contractor in the amount of 100,000 (one hundred thousand) rubles.

5.2. The commission is payable by the Customer within 1 (one) day after the registration of ownership of the Object.

5.3. The expenses for the implementation of the Object are paid as follows:

6. RESPONSIBILITY OF THE PARTIES

6.1. If the Customer refuses to sell the Object, he undertakes to pay a fine in the amount of 10 (ten) percent of the amount of the commission specified in clause 5.1.

6.2. Both parties are exempt from liability for failure to fulfill obligations under the contract in the event of:

• force majeure actions;
• loss of legal capacity by the owner or his death;
• by the authorities local government or the state authority of the act, which excludes the possibility of fulfilling the obligations under the contract.

7. PROCEDURE FOR RESOLUTION OF DISPUTES

7.1. Disagreements and disputes that may arise during the implementation of this agreement, if possible, will be resolved through negotiations between the parties.

7.2. If it is impossible to resolve the dispute through negotiations, the dispute will be considered in court.

8. OTHER CONDITIONS

8.1. This agreement is made in 2 (two) copies - one for each party. Instances have the same legal force... Termination and amendment of the contract is possible only by mutual agreement of the parties.

8.2. The parties undertake to maintain confidentiality and not disclose the terms of the agreement to third parties.

The contract for the provision of real estate services by its legal nature refers to mixed contracts (the subject of this contract is representation services, which, in turn, are expressed in such contracts as a contract of agency, commission, agency). Hence, the contract for the provision of real estate services contains elements of such civil law contracts as a commission contract, commissions, agency services, paid services.
Based on this, it is advisable to note that when establishing the rights and obligations of the parties to a contract for the provision of real estate services, it is necessary to take into account the provisions of the above contracts that can be applied to the contract under consideration, if this does not contradict the mandatory rules established by the current legislation in relation to contracts for the provision of compensation services as such, as well as the subject of the contract for the provision of real estate services.
The main obligation of the customer, as follows from Art. 779 Civil Code, is the need to pay for services rendered. Payment for the services of the contractor in accordance with Art. 781 of the Civil Code is carried out by the customer within the time frame and in the manner specified in the contract for the provision of services for compensation. The service under the considered contract for the provision of real estate services must be paid by the customer (consumer) after the provision of its final result by the contractor (realtor), and with the consent of the customer (client), the service can also be paid by him in full upon concluding the contract or by issuing an advance (Article 735 of the Civil Code) ...
The client is obliged to pay a fee to the realtor, and in the case when the realtor has assumed a guarantee for the execution of the transaction by a third party (del credere), also additional remuneration in the amount and in the manner established in the contract for the provision of real estate services. It should also be noted that in addition to paying remuneration, the client is obliged to reimburse the realtor for the amounts he spent on the execution of the order under the contract. But at the same time, the realtor does not have the right to reimbursement of the costs of storing the client's property, unless otherwise stipulated in the law or in the contract for the provision of real estate services (clauses 1, 2 of article 972 of the Civil Code, clause 2 of article 975 of the Civil Code, Clause 1 of Art. 991 of the Civil Code, Art. 1001 of the Civil Code).
If the contract for the provision of real estate services has not been executed for reasons depending on the client (through the fault of the client), the realtor retains the right to remuneration, as well as to reimbursement of expenses incurred, i.e. services are payable in full (clause 2 of article 781 of the Civil Code, clause 2 of article 991 of the Civil Code). In cases where the impossibility of performance was caused by circumstances for which neither of the parties is responsible, the client must reimburse the realtor for the actual costs incurred by him, unless otherwise provided by law or the contract for the provision of real estate services (clause 3 of article 781 of the Civil Code).
In addition to timely payment for the services of the realtor, the client must comply with the requirements of the realtor on commercial secrets (not to disclose information to third parties that the realtor has forbidden to disclose). In accordance with Art. 727 of the Civil Code, a party that, thanks to the fulfillment of its obligation under a contract for the provision of services for a fee, received information about new solutions and technical knowledge, including those not protected by law, as well as information that may be considered a commercial secret (Article 139 of the Civil Code), is not entitled to communicate them to third parties without the consent of the other party. The procedure and conditions for the use of such information are determined by agreement of the parties. Failure to comply with the realtor's commercial secrets may entail property liability of the client. The contract must necessarily stipulate what information the client has no right to disclose and what responsibility is provided for their disclosure.
The consumer is also obliged to transfer property to the realtor (for example, residential premises for sale), the quality and characteristics of which have been agreed in advance with the realtor. In particular, he must warn the realtor about all the rights of third parties in relation to the residential premises being sold or transfer the residential premises in the condition specified in the contract. In case of non-compliance this requirement the realtor has the right to refuse to fulfill the contract and demand from the client to compensate for losses. This rule must be necessarily provided by the contract for the provision of real estate services (with a detailed description of the order in which the realtor's losses will be determined).
The client has the right to complete and accurate information. The realtor must provide full information about the services provided. When a client only contacts a realtor without concluding an agreement with him for the provision of real estate services, the realtor is obliged to explain to the client the whole range of services provided by him, based on the client's requirements. At the same time, approximate terms for the provision of services and their cost can be negotiated. When the consumer is ready to conclude an agreement for the provision of real estate services, the realtor is obliged to provide him with all the information about the terms of this agreement.
In addition to the contract for the provision of real estate services, depending on the nature of the actions that must be performed for the client, it may be necessary to conclude an agency contract, commission, order. In these cases, the realtor must advise the client on all the terms of the specified contracts.
In the course of transactions with real estate, it may be necessary to privatize residential premises, acquire ownership of a land plot, formalize an inheritance, register a real estate transaction, go to court and represent the client's interests in court. In this case, the realtor must provide the client with legal information regarding the legal actions that he needs to take in order to fulfill the client's instructions. For the provision of incomplete or inaccurate information to the client, the realtor must bear the responsibility provided for by the current legislation.
The client has the right to quality rendering services by a realtor. Requirements for the quality of services in each specific case will be different. They directly depend on the conditions that are stipulated in the contract for the provision of real estate services (i.e., they will depend on the specifics of the subject of the contract).
If the client needs, for example, to make a change of living space, then the realtor will be deemed to have fulfilled the contract if he transfers to the client a living space suitable for permanent residence: such living quarters should not be in a dilapidated, emergency condition and should have the necessary amenities (gas, electricity and water supply, etc.). In the case when the residential premises (apartment) is in a new building, this multi-apartment residential building must be handed over for service to the housing maintenance organization. In practice, it is quite common for a buyer to be moved into a dwelling in a new building that has not yet been commissioned by construction and has not been accepted for service by a housing maintenance organization. This threatens with the onset of the heating season, the residential building will not be heated, there will be no gas and power supply. Nobody will bear responsibility for all this. While the parties (construction organization, construction customer, apartment buyer, housing maintenance organization, real estate company) will be in court to find out who is to blame and who will bear property responsibility, issues of public services apartment building will not be allowed and the consumer will ultimately suffer.
If the contract specifies that the dwelling must be located in a certain place (on a certain street, a certain floor), then the contract will be considered fulfilled in accordance with the quality requirement, if all additional requirements of the client are met and the dwelling meets the requirements, previously indicated.
In general, the requirements for the quality of the subject of performance under the contract for the provision of real estate services are determined according to the same rules as in the work contract (Article 783 of the Civil Code), i.e. taking into account the specifics of real estate services in the case of poor quality of their provision, some of the consequences specified in Art. 723 CC. So, in case of non-observance of the requirements for the quality of the service provided, as well as in the case of poor-quality provision of services, the customer (client) has the right, unless otherwise provided by law or contract, to demand from the realtor a commensurate reduction in the price established for the provision of the service, or to demand in the event of deficiencies in the service provided. , for which the realtor is responsible, to provide the service again free of charge with compensation for the losses caused to the consumer by the delay in performance.
However, if the customer (client) discovers significant shortcomings, the presence of which does not allow to achieve the goal of the contract for the provision of real estate services, he is given the right to refuse to perform the contract and demand compensation for damages. A significant violation of the requirements for the quality of the services rendered will manifest itself precisely in the event that the client was transferred a residential premises that did not meet the requirements specified in the contract for the provision of real estate services. For example, a real estate company buys for its client a dwelling in which a citizen-consignee is registered and lives. The real estate firm must seek the consent of the client to purchase such a dwelling. If the real estate company does not do this, the client has the right to demand from it reimbursement of part of the purchase price or termination of the purchase and sale contract, the contract for the provision of real estate services and compensation for all losses.
Since the services are provided by the contractor in accordance with the assignment of the customer (the client's instructions), the latter (the client) is given the right at any time to check the progress and quality of the services provided, without interfering, however, in the operational and economic activities of the contractor (realtor) (Article 715 of the Civil Code) ... Consequently, the customer under a contract for the provision of services for a fee, as well as under a work contract, has the ability to influence the course of the provision of services and, accordingly, the result obtained. So, the client under the contract for the provision of real estate services has the right to receive information from the realtor about the progress of the execution of the order.
In the event that the contractor (realtor) does not proceed in a timely manner to the execution of the contract for the provision of real estate services or provides services so slowly that their execution by the deadline becomes clearly impossible, the customer (client) acquires the right to refuse to perform the contract and demand compensation for the losses caused to him.
The customer (client) is obliged, in the cases, to the extent and in the manner provided for by the contract for the provision of real estate services, to assist the contractor (realtor) in the provision of services. So, the client is obliged to provide the realtor with the necessary funds to execute the order (clause 2 of article 975 of the Civil Code). In particular, the client is obliged to timely transfer to the realtor the property (for example, residential premises for commercial lease) of a certain quality (stipulated by the contract), which is necessary for the realtor to fulfill the order under the contract. If he fails to fulfill this obligation, the performer (realtor) has the right to demand compensation for damages caused, including additional costs caused by the suspension of the provision of services, or the postponement of their provision, or an increase in the price of services specified in the contract (Article 718 of the Civil Code).
A paid service agreement, like a work contract, is bilateral, therefore the consequences of the customer's failure to fulfill counter-obligations under the contract apply to it (Article 719 of the Civil Code). In this regard, in relation to the situation we have considered above, it must be added that, in accordance with Art. 719 CC, the performer (realtor) may also be endowed with other rights. So, the contractor (realtor) has the right not to start providing services, but to suspend the actions begun in cases where the violation by the customer (client) of his obligations under the contract for the provision of real estate services prevents the realtor from properly fulfilling the contract (for example, the client handed over to the real estate company for sale an improper quality or in a condition that does not comply with the terms of the contract, preliminary agreement with the real estate company, etc.), as well as in the presence of circumstances that clearly indicate that the performance of these obligations will not be performed in set time(for example, the client kept silent when concluding the contract that he would not be able to receive the title documents for the residential premises that the real estate company should sell in a timely manner). In addition, in the presence of these circumstances, the contractor (realtor) has the right to refuse to execute the contract and demand compensation for losses, unless otherwise provided by the contract for the provision of real estate services.
Due to the fact that the performer provides services by performing certain actions or carrying out certain activities that are inseparable from himself, the completion of such actions or related activities means performance under a contract. Therefore, in Art. 779 of the Civil Code does not indicate the customer's obligation to accept the result of the service. There is also no indication in the law regarding the obligation of the contractor to hand over such a result to the customer. From this we can conclude that the procedure for acceptance, regulated in detail by clauses 1, 6, 7 of Art. 720 of the Civil Code, does not apply to the relations of the parties to the contract for the provision of real estate services, since it contradicts the peculiarities of its subject.
At the same time, the customer, upon completion of the provision of services, must evaluate the result obtained by the contractor. So, if any deviations from the contract are found that worsen the result of the service provided, or other shortcomings, the client must immediately notify the realtor about this.
If, after the end of the service, deviations from the contract for the provision of real estate services or other shortcomings that could not be established at the time of the end of its provision with the usual method of using the result of the service (latent shortcomings), including those that were deliberately hidden by the contractor (realtor) , the customer (client) is obliged to notify the contractor about this within a reasonable time after their discovery.
In the event that a dispute arises between the customer (client) and the contractor (realtor) about the shortcomings or their reasons, an examination must be appointed at the request of either of the parties to the contract. The costs of the examination are borne by the contractor (realtor), except for cases when the examination established that there were no violations by the contractor of the contract for the provision of real estate services or a causal relationship between his actions and the defects discovered. In these cases, the costs of carrying out the examination are borne by the party that demanded the appointment of the examination, and if it was appointed by agreement of the parties, then the costs are borne by both parties in equal shares.
The client is obliged to accept from the realtor everything he performed under the contract for the provision of real estate services, and if the realtor acted on his own behalf when executing the client's order, the client is obliged to release the realtor from the obligations assumed by him to a third party to execute the order in accordance with the terms of the contract (Article 1000 of the Civil Code).
According to Art. 782 of the Civil Code, the customer is granted the right to unilaterally refuse to execute the contract for the provision of services for compensation, subject to payment to the contractor for the expenses actually incurred by him. In contrast, as noted earlier, the contractor has the right to refuse to fulfill the obligations under the contract for the provision of services for compensation only on condition that the customer is fully reimbursed for losses. Thus, the client has the right at any time to refuse to execute the contract for the provision of real estate services, provided that the realtor pays for all expenses actually incurred by him before the termination of the contract, as well as paying him remuneration for all transactions made by him before the termination of the contract in the interests of the client (for the executed order) ... The client must notify the realtor of the termination of the contract no later than 30 days, unless a longer notice period is provided for in the contract for the provision of real estate services.
In the event of cancellation of the order (unilateral refusal from the contract for the provision of real estate services), the client is obliged to within the period established by this contract, and if such a period is not established, to immediately dispose of his property held by the realtor. If the client does not fulfill this obligation, the realtor has the right to deposit the property for storage at the expense of the client or sell it at the most favorable price for the client (clause 3 of article 1003 of the Civil Code).
The rights and obligations of consumers of real estate services (clients) are regulated general rules, enshrined in the Civil Code of the Russian Federation for the obligations of paid provision of services, agency services, commissions and sureties, as well as contracts that are concluded between clients and real estate firms.
The bulk of consumers of real estate services from real estate firms are individuals. It is for this reason that the services provided by real estate firms to this part of clients will be regulated by the provisions of the Law of the Russian Federation of February 7, 1992 N 2300-1 "On Protection of Consumer Rights" (as amended and supplemented by June 2, 1993, 9 January 1996, December 17, 1999, December 30, 2001, August 22, November 2, December 21, 2004, July 27, October 16, November 25, 2006).
A natural question arises - what can be attributed to the rights of consumers of real estate services?
The first is the right to information. The real estate company must provide complete information about the services provided. When a client only contacts a real estate company without concluding an agreement with it for the provision of real estate services, it is most expedient to explain to the client the whole range of services that can be provided to him based on the client's requirements. At the same time, the approximate terms of the services and their cost can be negotiated. At this stage of the relationship between the client and the realtor, the real estate company does not provide the client with all information regarding its services. This is done for the reason that information (for example, about the location of the apartment needed by the client, its cost, etc.) can be attributed to the trade secret of this real estate company.
If the consumer of real estate services is ready to use the services of a certain real estate company, he must be provided with information on the conditions for concluding an agreement on the provision of real estate services.
In addition to the agreement on the provision of real estate services, if necessary, the realtor and the client can enter into agency agreements, commissions, orders. In such situations, the real estate company is obliged to provide the client with the necessary information about all the conditions of the named contracts. However, it should be remembered that the realtor is not obliged to fully disclose the entire "legal essence" of the contracts of interest to the client, he only has to answer the questions asked by the client.
Before signing any contracts with a real estate company, the consumer needs to carefully study all the conditions offered. It is important to pay attention to the subject of the services that the real estate company should provide. If, for example, a client needs to buy a one-room apartment in the city center (preferably on some specific streets), located on the third floor, then it is imperative to describe in detail all these nuances in the contract, otherwise the realtor will be considered to have properly fulfilled his contractual obligations, even if he does not take into account the wishes of his client. And the client will be obliged to accept everything performed under the contract by the realtor and pay for his services. Therefore, all the "wishes" of the client about the location of the apartment (or, for example, where the windows should go) should not remain oral wishes, but be recorded in the contract for the provision of real estate services.
The client should inquire about such important issues as the transfer of the risk of accidental death, the liability of the parties, the right of the realtor to retain everything he received from the transaction concluded in the interests of the client, the encumbrance of real estate with the rights of third parties.
The real estate company must also provide legal information about all legal actions that the realtor must take to fulfill the client's requirements. In the course of transactions with real estate, it may be necessary to privatize residential premises, acquire ownership of a land plot, formalize an inheritance, register a real estate transaction, go to court and represent the client's interests in court.
In the area of ​​information rights, it should be borne in mind that real estate firms cannot collect and process certain types of information. This applies to personal data. Realtors can form their base according to clients who have contacted them and now, in accordance with the provisions Federal law dated July 27, 2006 N 152-FZ "On personal data", it is impossible to collect information classified by this Law as personal data. It is also prohibited to process and transmit such information. Personal data includes information related to a specific or determined on the basis of such information an individual (subject of personal data), including his last name, first name, patronymic, year, month, date and place of birth, address, family, social, property status , education, profession, income, other information.
Secondly, the client has the right to high-quality performance of his services by the realtor. Requirements for the quality of services in each specific case will be different. They directly depend on the conditions that are stipulated in the contract for the provision of real estate services.
If the client needs, for example, to exchange apartments, then the realtor will be deemed to have fulfilled the contract if he transfers the apartments to the client, the accommodation in which is possible based on sanitary requirements. These are apartments in houses that are not in emergency condition and are connected to gas, electricity and water supply. In cases where the apartment is in a new building, it must be a house handed over to the housing office. In practice, cases are quite common when the buyer is moved into an apartment in a new building, which has not yet been commissioned by construction, has not been accepted for service in the housing office. This threatens that at the onset of the heating season, the house will not be heated, gas and energy will not be supplied to it. Nobody will bear responsibility for all this. Until the parties (construction organization, building owner, buyer, housing office, real estate company) are in court to find out who is to blame and who will bear property responsibility, the issues of public services at home will not be resolved.
If the contract specifies that the apartment must be located in a certain place (on some specific streets, certain floors), then the contract will be considered fulfilled in accordance with the quality requirement if all additional client requirements are met and the house meets the requirements previously specified ...
If the requirement for the quality of the service provided is not met and the defects of the goods were not agreed by the seller, the buyer, to whom the goods of inadequate quality were transferred, have the right, at his choice, to demand from the seller:
1) a commensurate decrease in the purchase price;
2) gratuitous elimination of defects in the goods within a reasonable time;
3) reimbursement of their expenses for the elimination of defects in the goods.
In the event of a significant violation of the requirements for the quality of the goods (detection of fatal deficiencies, deficiencies that cannot be eliminated without disproportionate costs or time expenditures, or are revealed repeatedly, or appear again after their elimination and other similar shortcomings), the buyer has the right, at his choice:
1) refuse to execute the contract of sale and demand the return of the money paid for the goods;
2) demand the replacement of goods of inadequate quality with goods that comply with the contract.
These rights are provided for by Art. 475 of the Civil Code of the Russian Federation.
A significant violation of the requirements for the quality of the goods will manifest itself just in the event that the client was transferred to an apartment that does not meet the requirements specified in the contract for the provision of real estate services.
The client also has the right to receive goods free of the rights of third parties. According to Art. 460 of the Civil Code of the Russian Federation, the real estate company is obliged to transfer the goods to the buyer free of any rights of third parties, except for the case when the buyer agreed to accept the goods encumbered with the rights of third parties. Failure by the seller to fulfill this obligation gives the buyer the right to demand a reduction in the price of the goods or the termination of the purchase and sale agreement, if it is not proven that the buyer knew or should have known about the rights of third parties to this goods. For example, a realtor buys an apartment for his client, in which a citizen is registered and lives (legacy recipient). The realtor must seek the client's consent to purchase such an apartment. If the realtor does not do this, the client has the right to demand from him or her reimbursement of part of the purchase price or termination of the sale and purchase agreement and the contract for the provision of real estate services, compensation for all losses.
When the goods are withdrawn from the buyer by third parties on grounds that arose before the execution of the sales contract, the seller is obliged to reimburse the buyer for the losses incurred by him, unless he proves that the buyer knew or should have known about the existence of these grounds. The agreement of the parties on the release of the seller from liability in the event that the purchased goods are reclaimed from the buyer by third parties or on its limitation is invalid (Article 461 of the Civil Code of the Russian Federation).
If a third party, on the basis that arose before the execution of the sale and purchase agreement, brings a claim against the buyer for the seizure of the goods, the buyer is obliged to involve the seller in the case, and the seller is obliged to enter into this business on the buyer's side. The buyer's failure to involve the seller in the case relieves the seller from liability to the buyer if the seller proves that by taking part in the case, he could have prevented the seizure of the sold goods from the buyer. The seller, attracted by the buyer to participate in the case, but did not take part in it, is deprived of the right to prove the incorrectness of the business by the buyer. These rules are specified in Art. 461 of the Civil Code of the Russian Federation.
Among the duties of the consumer of the services of a real estate company, one can name, first of all, the obligation to pay for the services of a real estate company. Payment for the services of a real estate company can be determined in the contract for the provision of real estate services different ways, we will discuss this in more detail in Ch. 3 of this book. In connection with the payment for the services of a real estate company, the question often arises about the retention of everything received by the realtor from the transaction with the client (on the basis of Articles 359, 360 of the Civil Code of the Russian Federation) and the client's responsibility for late payment or non-payment of the services of the real estate company. Withholding is expressed in the fact that a realtor, for example, who bought an apartment on behalf of a client, retains it and does not transfer it to the client, since the client has not paid in full for the services of the real estate company. Further, the realtor has the right to sell this apartment and satisfaction from this amount of his remuneration. These retention rules apply regardless of whether they are specified in the contract or not. But if the contract directly provides for a prohibition on retention by a realtor, then the rules provided for in Art. Art. 359, 360 of the Civil Code of the Russian Federation, will not apply to the legal relations of the parties and, accordingly, the realtor will not be able to legally retain the client's property received by him.
In addition to timely payment for the goods, the client must comply with the requirements of the realtor on the commercial secrets of his company (not to disclose information to third parties that the realtor will not allow to disclose). Failure to comply with the commercial secrets of the real estate company may entail property liability of the client. The contract must necessarily stipulate what information the client has no right to disclose and what responsibility is provided for their disclosure.
Often, a real estate company provides in the contract a condition that the client is not entitled to contact other real estate companies for the provision of services with which he applied to this real estate company. For violation of this condition, the real estate company may collect from the client the cost of the service that it could provide to him. This rule will apply if it is provided for by the contract.
The consumer of the services of the real estate company is also obliged to transfer to the realtor the property (for example, an apartment for sale) of the quality agreed with the realtor. For example, he must warn the realtor about all the rights of third parties in relation to the apartment being sold, in the condition specified in the contract. If this requirement is not met, the realtor has the right to refuse to fulfill the contract of real estate services and demand compensation for losses from the client. But this must necessarily be provided for by an agreement for the provision of real estate services (with a detailed description of the order in which the realtor's losses will be determined).
The duties of a real estate company should also include the duty to protect and respect the interests of its client.
A real estate company (by agreement with its client) can represent his interests in court if there are any claims of third parties to the client's real estate. We talked about this in the first question of this chapter. By the legal service(or a lawyer of the firm) by power of attorney from the client can be provided with services to represent interests in court.
As a rule, when selling an apartment, there are often cases when one spouse sells joint property without the consent of the other. Or an apartment is being sold, in which a minor is registered, and the guardianship and guardianship authority did not give consent to its sale.
In all these cases, the real estate company represents the interests of its client in civil proceedings... Cases in such cases are considered in action in the court of general jurisdiction of the first instance. It is important to know that all claims related to real estate are filed in court, on the territory of which the real estate is located, the place of residence of the plaintiff and the defendant does not matter here.
There are, however, cases when a consumer of real estate services is bought an apartment in a house with a recently completed construction, but not commissioned in accordance with the established procedure in the housing office. In these cases (depending on the content of contracts between the consumer and the realtor, developer, owner), the realtor can be both a defender of the rights of his client to the developer, the owner, and he himself can be a defendant in the client's claim.
If the client of a real estate company is an organization or an entrepreneur that makes transactions with real estate for the purpose of making a profit (not for personal residence), all disputes in such cases are considered in arbitration court in the course of action proceedings.
When considering disputes in court, there are often times when it is possible to conclude an amicable agreement, abandon a claim, increase or decrease the amount of claims. For all these actions, the realtor must have the permission of the client (consumer of real estate services). This permission is expressed in a power of attorney that the consumer of real estate services issues to his realtor. The power of attorney must directly record the client's consent to the realtor to perform these actions. Otherwise, the realtor will be limited in his powers to represent the client's interests in court.
When deciding on the provision of a real estate company legal services representing the interests of your client in court, you can also resolve the issue of who will bear the material costs incurred during the trial. When resolving a dispute in court, it is necessary to pay a state fee (without paying it, the court simply will not accept the statement of claim), it may be necessary to conduct an examination, which also requires certain material costs. In addition, the very process of presenting evidence (photocopies, drawing up notarized copies of documents, requesting evidence, sending them) also requires certain material costs.
In the contract for the provision of real estate services, it is necessary to separately provide for the conditions for reimbursing the costs of the real estate company for representing the client's interests in court, and the procedure for paying the remuneration of the real estate company for the services of representation in court and other law enforcement agencies should also be separately provided.
The realtor is obliged to keep confidential information about the client and the transaction. The secrecy must be kept for the duration of the contractual relationship with the client and after its termination.
The realtor has no right to use confidential information about the client against him, for his own benefit or for the benefit of a third party without the consent of the client.
According to the Standards governing relations between members of the Russian guild of realtors and clients, it is possible to disclose confidential information of a client to a realtor in the following cases:
1) based on a request authorized bodies government controlled or by court order;
2) when the realtor became aware of the client's intention to commit an illegal act and the disclosure of this information is necessary to prevent this crime;
3) when a realtor is forced to defend his legally protected rights from charges of unlawful behavior.
Clients' money intended for transfer to other participants in the transaction may be accepted by the realtor for safekeeping as a thing, and they must be kept separately from the realtor's own funds in a subscriber bank depository for storing things or in a specially equipped storage facility, unless otherwise provided by the contract and current legislation (Standards governing relations between members of the Russian guild of realtors and clients).
The realtor, representing the interests of the seller at the conclusion of the contract, must inform him:
1) on the principles and practice of cooperation between the realtor and other realtors to carry out the transaction as soon as possible;
2) his intention to enter into a contractual relationship with the buyer and represent the interests of both parties in the transaction (clause 1.2.20 of the Standards governing relations between members of the Russian guild of realtors and clients).
The realtor representing the interests of the buyer at the conclusion of the contract must inform him of the following:
1) on the principles and practice of cooperation between a realtor and other realtors;
2) about his intention, if possible, to enter into a contractual relationship with the seller and to represent the interests of both parties in the transaction (clause 1.2.21 of the Standards governing relations between members of the Russian guild of realtors and clients).
Entering into negotiations on the terms of work on a cooperative transaction with other realtors and stipulating the conditions for receiving and the amount of their commissions, the realtor is free to choose the size and procedure for payment of remuneration within the framework of the concluded agreement and current legislation (clause 1.2.22 of the Standards governing the relations of members of the Russian Guild realtors and clients).

So, the real estate agency with which you intend to start cooperation has been selected. Taking into account all the recommendations already published in our newspaper. The next stage is ahead - the conclusion of an agreement with a real estate company.

Mikhail Barsukov, head of legal department"GIPORT.RU":

In practice, the relationship between the client and the realtor is governed by a contract for the provision of services for compensation.

The main goals of concluding agreements with realtors for the provision of services for transactions with real estate are:

Securing legal relations for the search, inspection of real estate objects,

Negotiation of conditions and preparation of a real estate alienation agreement,

Registration of documents for acceptance and transfer of title documents.

In practice, these contracts are mainly concluded in a simple writing(in the form of agreements for the provision of information services, agency agreements (agency agreement), less often commission agreements, etc.). And they contain the following sections: the preamble, the subject of the contract, the value of the contract and the procedure for payment, the rights and obligations of the parties, the responsibility of the parties, the term of the contract, and other conditions.

There may be other sections that are less common.

Preamble to the treaty.

Who signs.

The Preamble of the contract must necessarily indicate who (surname, name, patronymic, position) and on what grounds from the agency's side signs it.

Important! Before signing, the client should make sure that a specific person has the authority to sign the contract for this moment- request and familiarize yourself with the charter and / or power of attorney.

It should be remembered that the heads of organizations have the right to conclude contracts on the basis of the charter without a power of attorney.

Other persons: deputy heads, as well as heads of branches, representative offices, divisions, must act on the basis of a duly executed and certified power of attorney.

The power of attorney must contain the signature of the head and the seal of the company, the period for which it was issued and the scope of authority of this person are indicated.

Important! When a contract is signed by a person who does not have the appropriate authority, there is a risk that the contract will be invalidated.

Who is performing.

Unless otherwise provided by the contract, the executor (the person who signed the contract) is obliged to provide services personally.

The client needs to know who exactly will provide him given view services, since he has to notarize the power of attorney for the contractor (realtor).

Power of attorney.

If the client does not provide for the right of substitution in the power of attorney for the realtor, this means that all legally significant actions will be personally performed by the person for whom the power of attorney is issued. Particular attention should be paid to the list of powers (actions) that a realtor will have the right to carry out, including the right to receive money for the property being sold.

Subject of the contract.

The wording of the subject of the transaction should be clearly and unambiguously stated here, i.e. the general obligations of the realtor and the client (customer), that is, the main actions that the agent or agency must perform, and it is written that the client must pay for these services.

From this point it should be clear what specific services are provided to the client. Most often, the content of the subject of the contract is expressed in the form of the provision of information services by the realtor, less often in the form of the implementation of specific actions. The further possibilities of the client to protect their rights, including in court, depend on the completeness and correctness of the presentation of the content of this section.

V this section the object of sale (purchase) and its main parameters must be described in detail. Perhaps the client wants to buy an apartment on a specific floor, in a specific area of ​​the city. And this must be reflected in the contract. Otherwise, any residential premises that a realtor offers to his client will be considered a proper execution of the contract for the provision of real estate services.

Important! The client must remember that in the overwhelming majority of cases, the primary information on the search for real estate, potential buyers is extracted from open sources of information, and the realtor is not legally responsible for its accuracy.

In large real estate companies, which occupy a stable position in the real estate market, so-called exclusive contracts have appeared in recent years. When preparing them, clients have a real opportunity to enter their conditions into the text of the agreement. But an exclusive contract is still the exception, not the rule.

The cost of the contract and the procedure for payment.

Each real estate company has its own rules (size and procedure) of payment. The cost of services of a real estate agency is established either as a percentage of the value of real estate (transaction value), or in a fixed fixed amount.

As a rule, the contract provides for an advance payment for the services provided. This prepayment can be fixed both in the form of an advance payment and in the form of a deposit.

Important! The client needs to know that in case of impossibility of performance arising through the fault of the client (customer), services are subject to payment in full, unless otherwise provided by law or the contract for the provision of services for compensation.

In the event that the impossibility of performance has arisen due to circumstances for which neither of the parties is responsible, the client (customer) shall reimburse the contractor (realtor) for the actual costs incurred by him, unless otherwise provided by law or the contract for the provision of services.

Rights and obligations of the parties.

Here the rights and obligations of both the customer (client) and the executor (realtor) are enshrined.

Obligations of the client.

As a rule, the client's responsibilities include the provision of the required documents for the transaction, payment for services provided and participation in certain legally significant actions (such as notarization of a power of attorney, participation in shows, presence in registration authorities, etc.).

Obligations of the performer.

As for the duties of a realtor (performer), here the client should pay special attention to the fact that his actions are clearly spelled out, and not formulated in general view... For example, search for real estate objects, in accordance with the client's application, in a certain amount; spend so many shows; if the purchase goes along with the sale, then search for a buyer.

The timing of the shows in practice is verbally agreed with the client.

As for the number of impressions, it is most often limited. The contract may contain the total number of impressions for the entire duration of the contract, or not at all.

It is important for the client that the duties of the realtor formulate specific actions to verify the "legal purity" of the transaction (apartment), that is, what exactly needs to be checked, namely:

1. Has the object been seized? Or maybe there are other encumbrances, restrictions on rights in relation to this dwelling, which the seller is silent about?

2. Is the person selling, renting out this apartment eligible for this transaction?

3. Are there other rights of third parties in relation to this dwelling, which the seller deliberately keeps silent about?

4. Have uncoordinated (unauthorized) reorganization and redevelopment been carried out in the dwelling?

Responsibilities are assigned to the client. The buyer is usually obliged to provide the initial documents for the upcoming transaction, at the agreed time to arrive at the show or submit the object for the show, fill out the appropriate act in the prescribed form with the introduction of his comments on this show, as well as the obligation to perform a number of other actions, which were mentioned above.

Failure by the client to make comments in the act or in another document drawn up based on the results of the show, deprives him of written evidence in a possible dispute about the compliance of the shown object with his stated requirements.

Important! The transfer of documents should be carried out by issuing an appropriate receipt or inventory for the transfer of documents.

Very often, the contract for the provision of real estate services contains conditions according to which the client does not have the right to contact another company for the provision of a similar service. Moreover, in some cases, the text of the contract includes conditions under which the client will be obliged to reimburse the real estate company material damage related to a similar case.

Material damage in this case can be expressed in lost profits, that is, the unscrupulous client is obliged to pay the remuneration that he would have paid if he was properly provided with the service.

Responsibility of the parties.

Here, the responsibility of the client for the payment of funds - advance payment and final payment - in the form of penalties is often prescribed.

And the realtor's responsibility is formulated in the form of a general phrase - "in accordance with applicable law." This wording does not give the client a clear idea of ​​the agency's responsibility (due to the lack of a complete understanding of its types), which should include measures for non-fulfillment of certain obligations, as well as for non-compliance with the deadlines for their fulfillment.

According to Article 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be secured by a forfeit, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or agreement.

The contract can fix either one of the measures or their combination.

Duration and procedure for termination of the contract.

The contract for the provision of real estate services is urgent - it is concluded for a certain period. It is important for the client that the deadline for the fulfillment of his duties by the realtor is reflected in the contract. In practice, things turn out differently:

Or this period is not indicated at all,

Or it is not stipulated by a specific calendar date, but depends on the occurrence of an event. For example, "the firm undertakes to sell the client's apartment no later than three months from the date when the privatization of the client's apartment will be formalized."

Important! If the client is firmly committed to completing the transaction, then the specific time frame should be reflected.

There is another subtle point. In the event of the expiration of the contract, the further actions of the parties, as a rule, are not described. And a situation may arise when the client made an advance payment, handed over the documents to the realtor, but did not receive the proper service under the contract (the required property was not found for him). And it is unclear what to do in this case, because the contract does not stipulate that the advance payment will be returned to him, the procedure for returning the documents handed over is not specified.

The deadline for the fulfillment of the obligation under the contract is the date of the document confirming the acceptance of the service by the client, i.e. date of the acceptance document.

Important! The absence of a specific deadline for the fulfillment of obligations under the contract complicates the legal relationship between the parties, creates uncertainty in the application of mutual sanctions for violation of contractual obligations:

When determining the deadline for the provision of services by the realtor,

Payment of fines and penalties for failure to fulfill obligations on time,

Leads to the difficulty of proving the circumstances of the realtor's fault in violation of these terms.

When agreeing on the text of the contract, the client also needs to know:

An agreement for the provision of real estate services cannot contain more discriminatory terms than are usually contained in such agreements. A direct prohibition on this can be traced from the analysis of the provisions of Art. 428 of the Civil Code of the Russian Federation.

All terms of the contract can be divided into essential and non-essential. An essential condition of the agreement is the agreement on which has been reached between the parties, it is contained in the text of the agreement and allows such an agreement to be considered concluded. All other conditions may not be included in the text of the agreement for the provision of real estate services, but they will be respected by the parties, based on the customs of business.

Before signing the contract, the client must have complete clarity about its content, which is not always possible in the absence of appropriate theoretical knowledge and practical experience... Therefore, before signing the contract, it is advisable for the client to consult with an independent lawyer specializing in real estate in order to avoid negative consequences in the future, including financial losses, caused by the inclusion or non-inclusion of certain conditions in the text of the contract.

Prepared by Natalia Sergeeva

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The process of relations between clients and realtors often raises a lot of questions. With whom exactly should the contract be concluded - with the specialist who will carry out the transaction, or with the agency where he works? What exactly is the realtor responsible for? Finally, is it possible to count on compensation if you were provided with a poor-quality service? Let's try to figure it out.

The other side of the law

BN has already told its readers how to choose a real estate agent and why such a specialist is needed. It makes sense to dwell in more detail on the legal features of the relationship between realtors and their clients. Since 2002, compulsory licensing of real estate activities has been canceled in Russia. Since then, the state does not actually control the profession: there is no definition of real estate services, generally accepted requirements for the work of agencies and their employees. And the only document that regulates the relationship of professional operators of this market with clients is the contract concluded between them. Mandatory requirements to him, again, are absent.

Agencies offer clients different kinds agreements: commission agreement, agency service, paid services. All of them are provided The Civil Code RF and are quite legal. The choice of a specific form of agreement depends on the specifics of the transaction being carried out and the volume of services provided by the agency.

If the work will be carried out under an exclusive contract, then here the agreement must be concluded with the real estate agency, since it is this that guarantees the fulfillment of obligations under the transaction. Including - is responsible for the actions of the agent in front of the client. On the part of the agency, the contract is signed general manager or a designated representative. It is possible to enter into an agreement with a private agent only if he has the status individual entrepreneur... This is the only way he can give his client any guarantees.

Considering that legal requirements to the content of the agency agreement is absent, the amount of responsibility that the company or its employee bears to the client must be specified in detail in the document itself.

It makes sense for the client to remember that he has every right to insist that certain additional clauses be included in the model contract that the agency will offer him. Of course, if they do not violate applicable law.

Along with the basic agreement for the provision of services, the agency often concludes an agency agreement with clients. For example, if a client does not want to independently register ownership, collect documents necessary for a transaction, etc., then the agent does it for him.

However, according to experts, commission agreements can pose a potential danger to clients, therefore, their conclusion should be treated with utmost care, clearly understanding what actions and to what extent you are instructing.

We check the cleanliness

Many agency agreements say that the realtor is obligated who wants to purchase his client. But the practice is that if in the future the transaction is declared invalid, the agent will not bear any responsibility for this. According to the law on state registration of rights to real estate (122-FZ), a registered property right can be canceled through a court. And the compensation for the failed buyer provided for by the same 122-FZ is limited to the amount of 1 million rubles.

To receive this payment, you need to go to court and find out whose fault the buyer was caused the damage. That is, to find the culprit and, again, through the court to receive compensation from him. However, according to lawyers, this is more of a theory; in practice, it is almost unrealistic to prove the agent's dishonesty, and even more so to collect a penalty from him.

In addition, according to the current laws, the realtor is not obliged to be responsible for the good faith of the seller. The client needs to be aware that - even if the agency carried out its work without mistakes. For example, if, after registering the rights of the buyer, an heir unexpectedly appeared, the existence of which was not known to anyone.

Responsible for the deal

In the absence of legislative regulation of real estate activity, all conflicts between agents and their clients are resolved on the basis of the provisions of the Law on the Protection of Consumer Rights. In accordance with the 29th article of this document, in the event of termination of the contract with the real estate agency, the consumer can demand "full compensation for losses caused to him in connection with the shortcomings of the work performed."

However, according to experts, cases when a realtor paid compensation to a client are extremely rare. In practice, the realtor's liability is almost always limited to the amount of commission received by him. Fines and penalties prescribed in the contract are rarely accepted by the courts - the servants of Themis qualify any form of agreements concluded between the parties as contracts for the provision of services. A main feature such agreements is that in the event of their unilateral termination, it is practically impossible to collect a penalty.

The bottom line is the following: arbitrage practice on the resolution of conflicts between realtors and their clients today did not work out. Largely due to the fact that regulation, legal norms and mandatory property liability of realtors do not exist today.

Clients can only hope that bona fide real estate agencies value their reputation, which can serve as a certain guarantee of the quality of their services.

Plus, cases of fraud in the secondary housing market have long ceased to be widespread. Here, both the system of state registration of rights and the significant work of the professional community to popularize the civilized housing market played a role.

An additional guarantee for the client can be the membership of the agency chosen as an intermediary in any professional association, since the liability of their members is usually insured. In the event of force majeure, this will, to one degree or another, cover financial losses client.

It might make sense to insure the title deed yourself. The cost of this service depends on the cost of the home and the insurance period.
In any case, you need to remember: no one will give you a 100% guarantee of the purity of the transaction. It is extremely difficult to assess all the risks associated with buying a home on the secondary market.

Text: Sergey Bardin, Andrey Gryaznov Photo: Alexey Alexandronok