Validity of the contract of real estate services. Exclusive contract for the sale of real estate

The rights and obligations of the consumer of real estate services (client) are governed by the general provisions of the Civil Code of the Russian Federation on obligations paid provision services, agency obligations, commissions and guarantees, as well as agreements concluded between the client and the real estate company.

A. A. Batyaev indicates 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 is 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 company is obliged to provide its services to everyone who applies to her. The firm has no right to give preference to anyone. The main contingent of consumers of real estate services are individuals, so the client - to an individual the rules of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights” (as amended on December 21, 2004) will apply. We list these rights:

The real estate company must provide full information about the services provided. When a client only applies to a real estate company without concluding an agreement with it for the provision of real estate services, it is most advisable to explain to the client the full range of services that can be provided to him, based on the requirements of the client. At the same time, it may be stipulated approximate dates services and their cost. The real estate company does not provide the client with all the information regarding their 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 classified as a commercial secret of this real estate company.

In the event that a 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 need to be performed for the client, it may be necessary to conclude an agency contract, commission, or assignment.

In these cases, the real estate firm must advise the client on all conditions these 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 should carefully study all the proposed conditions. It is important to pay attention to the subject of services that a 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 the contract must describe all these nuances in detail, 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 verbal 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 received under a transaction concluded in the interests of the client, 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 needs to take to fulfill the client's requirements. In the course of real estate transactions, it may be necessary to privatize a dwelling, acquire ownership of a land plot, register 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 that are provided for in the contract for the provision of real estate services.

If the client needs, for example, to exchange apartments, then the realtor will be considered to have fulfilled the contract if he transfers apartments to the client, 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 these cases, when the apartment is in a new building, it should be a house handed over for maintenance to the Housing Office. In practice, there are quite common cases when a buyer is moved into an apartment in a new building, which has not yet been commissioned by construction, has not been accepted for service by the housing office. This threatens that when the heating season begins, the house will not be heated, it will not be supplied with gas and energy. No one will be held responsible for all of this. While the sides Building company, the owner of the building, the buyer, the housing office, the real estate company) will find out in court who is to blame and who will bear property responsibility, issues of public services at home will not be resolved.

“The construction market is in a fever again: one after another, there are reports of rallies and hunger strikes of failed new settlers left without money and apartments paid for at the stage of excavation,” 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 sites that were not even prepared for construction, and 55% were new buildings, the bulk of apartments in which were sold out in the early stages of construction.

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

Developers practice such methods as using their own funds and attracting bank loans on a smaller scale.

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 kindergarten. This naturally increased the cost of construction and, ultimately, was paid by the buyers of apartments.

A. Korsak, head of the Moscow Economic Security Department, believes that there are often knowingly unscrupulous organizations on the market so far. 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 the construction of a house, attract co-investors, receive money from them, but are in no hurry to build. By acquiring more and more new sites and putting up a future new building for sale, these companies accumulate huge amounts of money, “spend” them without spending money on construction, and make money on this. After some time, the company can return to equity holders the amounts paid several years ago, but without interest and penalties.

If the contract states that the apartment must be located in certain place(on some specific streets, certain floors), then the contract will be considered fulfilled in accordance with the quality requirement if all additional requirements of the client 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 specified by the seller, the buyer, to whom the goods of inadequate quality were transferred, has the right, at his choice, to demand from the seller:

proportional reduction of 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 irreparable defects that cannot be eliminated without disproportionate costs or time, or are detected repeatedly, or reappear after their elimination and other similar defects), the buyer has the right to choose:

refuse to fulfill the contract of purchase and sale 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 in Art. 475 of the Civil Code of the Russian Federation.

A significant violation of the quality requirements of the goods will manifest itself just in the event that the client was given an apartment that does not meet the requirements specified in the contract for the provision of real estate services. The customer is also entitled to receive goods free from the rights of third parties. According to Art. 460 of the Civil Code of the Russian Federation, a real estate company is obliged to transfer the goods to the buyer free from any rights of third parties, unless 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 termination of the contract of sale, unless it is proved that the buyer knew or should have known about the rights of third parties to these goods. For example, a realtor buys an apartment for his client, in which a citizen (legatee of the inheritance) lives. The realtor must seek the consent of the client 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 contract of sale 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 contract of sale, the seller is obliged to compensate 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 case of reclaiming the purchased goods from the buyer by third parties or on its limitation is invalid. If a third party, on grounds that arose before the execution of the purchase and sale contract, files a claim for the seizure of goods, the buyer is obliged to involve the seller in the case, and the seller is obliged to intervene in this case on the side of the buyer. If the buyer fails to involve the seller in the case, the seller is released 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 conduct of the case by the buyer. These rules are specified in Art. 461 of the Civil Code of the Russian Federation.

Among the obligations 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 payment for services, the question often arises about the retention by the realtor of 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 liability for late payment or non-payment for the services of a real estate company. Withholding is expressed in the fact that a realtor, for example, who bought an apartment on behalf of a client, keeps it and does not transfer it to the client, since the client did not fully pay for the services of a real estate company. Further, the realtor has the right to sell this apartment and meet 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 expressly provides for a ban on retention by a 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 property of the client received by him.

In addition to timely payment for the goods, the client must comply with the realtor's requirement for the trade secret of his company (not to disclose to third parties information that the realtor forbids to disclose). Failure to comply with the trade secrets of a real estate company may entail the property liability of the client. The contract must necessarily provide for 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 apply to other real estate companies for the provision of services with which he turned to this real estate company. For violation of this condition, the real estate company may recover from the client the cost of the service that it could provide to him. This rule will apply if it is stipulated 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 a 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 indicated in the contract.

In case of non-compliance with this requirement, the realtor has the right to refuse to perform the contract of real estate services and demand compensation for losses from the client. But this must necessarily be provided for by the contract for the provision of real estate services (with a detailed description of the order in which the losses of the realtor will be determined).

Batyaev A.A. Realtor's Handbook. Rostov-on-Don. "Phoenix". 2006. P.54.

Innocent I., Efremenko T. Apartment fraud// Russian newspaper. 27.10.05 No. 241 (3910).

A contract is a means of regulating business relations and a tool for resolving disputes. At the disposal of the editors of the portal site were several agency contracts that are used in well-known Yekaterinburg agencies. The documents were analyzed by lawyers and told which points were clearly missing in them, and which should be changed in favor of the client.

For 20 years of development of the real estate market in Yekaterinburg, many professional and competent realtors have appeared. However, any market operates within the legal framework. However, in some cases, the work of a realtor goes beyond the scope of duties enshrined in the agency agreement. For example, there are cases when agency specialists helped their client when the seller was in no hurry to leave the sold apartment. Although the terms of the contract did not stipulate this.

However, it is not uncommon for there to be conflict situations. In the overwhelming majority, the reason for their occurrence lies in the crafty wording of the treaty. And in litigation, the client is likely to lose. Let's consider situations when the "weak link" of the contract can be corrected in favor of the client.

List of agency services

Lawyers recommend that clients of real estate agencies insist that the duties of a realtor be detailed and as accurately as possible set out in the agency agreement. The following are wordings that can be interpreted in two ways, as well as those clauses of the contracts that may harm the interests of the client. All formulations are quotations of contracts that are used in the work of real estate agencies in Yekaterinburg.

Points of contention:

1. "To search and display the Object that meets the requirements of the Client."

As a rule, the contracts do not specify the exact number of objects that will be offered to the client during the term of the contract. Of course, it is possible that the buyer will like the first shown apartment, and he will buy it. However, on city forums, users often express dissatisfaction with the work of realtors, who, it seems to them, select and display too few objects. Interestingly, if the client independently finds the object and acquires it during the period of the contract, he will be obliged to pay the realtor his commission. The same will happen in case of early termination of the contract at the initiative of the client.

For comparison, in the agency agreements of Moscow real estate companies, a similar clause reads as follows: "The Agency undertakes to ensure that the Customer views at least __ apartments that meet the requirements specified in clause 1.2 of the Agreement."

Market experts believe that such a clause should be added to the contracts of the Ural real estate agencies.

“I believe that agencies should write that the selection should show at least three to five objects during the term of the contract. In the contract, you need to prescribe the characteristics of the object that you want to purchase. After all, a client can be offered at least 200 objects, at least the entire price list, but none of them will suit.

To narrow the sample in the Ural Chamber of Real Estate, it is recommended to register all technical features desired apartment: maximum price, area of ​​the city, number of rooms, total area apartments, living space, kitchen area, balcony / loggia, floor, type of house, landline phone, etc. However, in practice, the description is sometimes limited to only indicating the maximum cost of the desired object, and all the details are voiced in words. This means that the contractor has the opportunity to select objects that comply with the contract, but do not satisfy the interests of the customer.

2. "Prepare Required documents for the proper execution of the transaction.

This paragraph does not disclose who exactly - the realtor or the client - will collect information. The “preparation of documents” in this case may mean both obtaining all the necessary documents for the transaction for the client, and checking the availability of all the certificates provided by the client and even placing them in a folder in a certain sequence for submitting documents for registration. Lawyers recommend fixing who will collect the document and reflect this in the contract.

3. "Assistance in the organization of mutual settlements between the parties to the transaction".

Perhaps the realtor on the buyer's side will lobby for the idea of ​​using a safe deposit box for mutual settlements, or at least insist on using a bank service for counting and checking banknotes. One way or another, but the role of the realtor in the settlement procedure is not clear. Will the real estate agent recalculate the amount or check the authenticity of the bills on his own, and is the mistake a reason to reduce his remuneration or even a reason to terminate the contract? These questions remain open.

4. “To carry out a set of marketing activities related to the search for a buyer for the Property for Sale and the search for the Property to be Purchased, incl. develop and place advertising (its types and volume are determined by the Realtor independently)»

Advertising of the object being sold is carried out at the expense of the agent, and he is tempted not to pay for it. For example, to advertise only on free information resources. The seller has no doubts about the effectiveness of the ads on these sites, as long as buyers actively call and go for inspections. However, it happens that buyers are not interested in the object, the sale is delayed, and the realtor refuses to place an ad on paid sites. And then the absence of an initial agreement on in what sources and to what extent the advertisement of the object will appear, will lead to a conflict between the client and the realtor.

For comparison, in Moscow, agency agreements indicate on which resources ads will be placed and whether they will get into the top of the best. The number of banners and streamers to be placed on the streets of the city is also specified in advance.

5. “After signing the contract with the buyer, together with the Client, search for options for the Purchased object”.

This paragraph is an excerpt from the contract for the exchange of an apartment (implies the sale of the client's apartment and the acquisition of another one). Ideally, two transactions for the alienation and purchase should be carried out with a minimum interval, preferably on the same day. However, in accordance with the paragraph above, the search for an object for purchase should only begin on the day the contract of sale is signed. Note that in Yekaterinburg, mutual settlements between the parties occur at the time of signing the contract. Thus, the client runs the risk of being left alone with the money from the sale of the apartment for several weeks or even months. And given the rate of growth in housing prices in Yekaterinburg, after a few months of searching, it may turn out that there is no longer enough money to buy the desired housing.

Lyudmila Plotnikova, UPN lawyer:

“There are cases when an agency has to sell and buy at the same time some object. For example, in 2011 there was a case when an apartment was sold and nothing was bought until 2013. During this time, prices have soared, and now you can’t buy anything for this amount. This situation is an egregious case of default by the real estate agency. How did the agency enter into a deal, realizing that its client was left with money on hand? In such cases, when the agency’s fault is established, a decision is made to return the commission by the agency in full.”

In order not to be left with cash for a long time, it is necessary to fix in the contract the period during which the counter transaction must be completed. In addition, the agent may be liable for depreciation of the proceeds from the sale (for example, payment of a penalty equal to the refinancing rate of the Central Bank).

Missing Responsibilities

A separate category includes items that are not in agency contracts. All these points are related to checking the history of the apartment. Realtors believe that it is impossible to prescribe in the contract a set of measures to check the legal purity of the apartment, since the term "legal purity" does not officially exist. Of course, a real estate agency is not the Ministry of the Interior. And agents are limited in their ability to obtain information. However, nothing prevents the client of the real estate agency from insisting that the following obligations of the realtor be included in the contract:

1. Receipt by the realtor of information about the encumbrance of the object - request for a certificate from the USRR;
2. Receipt by the realtor of information about the presence of debts for utilities;
3. Receipt by the realtor of information about persons registered in the apartment - request for information in the passport office;
4. Checking the owners of the apartment, as well as persons registered in the Apartment, for registration in a psycho-neurological or narcological dispensary.

The list is incomplete, and in each case it can be supplemented.

Note that realtors usually promise to perform these actions in words, and many actually do it, however, due to the great responsibility of the performer, these clauses are not fixed in most agency contracts.

Realtor's reward

1. “Payment of the Realtor's remuneration is made by __% prepayment, either after signing this agreement, or after signing an agreement with the buyer of the Object. By agreement of the parties, remuneration may be paid in a different manner».

When buying and selecting an apartment, the client needs to be prepared to make an advance payment for the services of a realtor. Thus, part of the fee must be paid before the work is completed. Moreover, if during the term of the contract the client does not have time to choose an apartment, then it is not a fact that the agent will return the prepayment, since the service is partially provided, the realtor spent time and incurred expenses. Therefore, the client is advised to write in the contract that the agent will receive a commission only after registration of ownership in the Rosreestr administration. Or specify in which cases the prepayment is refundable.

2. "The client undertakes to pay the Realtor's fee under this agreement in the amount of __ of the cost of housing."

As a rule, the commission of a real estate agency in Yekaterinburg is 3-5% of the value of the property. Experts recommend specifying the amount of remuneration in the form of a fixed amount in the contract. Otherwise, the realtor may be interested in offering the client the most expensive objects.

3. “In the event of the sale of the Object at a price exceeding the amount specified in clause 1.1. of the contract, the Realtor receives __% of the difference"

Definition of the current market value object - this is one of the duties of a realtor. This assessment is unofficial, but rather practical. It is believed that a realtor can give it, based on own experience and knowledge of the current market situation. If the contract assumes that the realtor will receive a percentage of the difference between the original price and the sale price, then the agent is tempted to initially underestimate the cost of the apartment. And only then, by agreement with the seller, raise the price and take part of this difference for yourself.

4. “The Realtor undertakes to provide the Client with the opportunity to inspect at least (recommended number of at least 3-5 options) __ options that fully comply with the requirements for the Object. If the Client refuses all the proposed options, the latter undertakes to pay the Realtor's remuneration under this agreement in the amount of __ ».

If the client does not like all the proposed options, and the apartment is not selected and purchased, he will still have to pay part of the remuneration to the real estate agency. In the purchase agreement, in small print, it is indicated that the recommended commission amount is 6-15 thousand rubles. Note that not all agencies conduct this practice of additional remuneration. When concluding a contract, you can write minimum size remuneration, or apply to another company where you do not need to pay for showing three to five apartments.

5. “The Client makes a partial payment for the Object in the amount of __ at the time of signing this agreement and an additional partial payment for the Object in the amount of not more than __ at the request of the Realtor, when making a partial payment to the sellers (right holders) of the Object or their representatives”.

At the conclusion of the contract, the owner agrees to put up for sale his object at a higher cost than he planned. The difference between the desired price and the sale price becomes the realtor's commission. When the buyer finds a suitable object, the realtor offers to immediately make an advance payment so that the object is withdrawn from sale and not offered to other persons. The advance is deposited with the real estate agency, which represents the seller's side. It is believed that it is more reliable for a real estate company to transfer money for safekeeping before the transaction than for an individual who can hide with the funds received in an unknown direction.

However, if the buyer changes his decision to buy before entering the deal, then it will not be easy to return the advance. The fact is that the service was partially rendered (the object was withdrawn from sale, no search was made for other buyers, the necessary certificates were collected), and the client must pay a fee. This amount is taken from the advance.

Lyudmila Plotnikova, UPN lawyer:

“Suppose I decided to buy a house and made an advance payment for the purchase of an apartment. The agency was preparing a package of documents for me to obtain a loan for the purchase of this apartment, they took me to the bank and helped me write an application. The bank approved the loan for me, the sellers are ready to enter into a deal, they have completed all the necessary documents, the agency has prepared a contract of sale. I am notified about the date of entry into the transaction. But at the last moment I decided that this apartment does not suit me. In this situation, the norms of the Civil Code apply, according to which the customer has the right to refuse to provide the service, but the work performed by the agency must be paid in proportion to the amount of work performed.

Service	Share of service in agent's remuneration
removal of the property from sale	10%
not taking actions aimed at acquiring the selected object by a third party	25%
preparation of the necessary documents for processing the transaction, including permission from the guardianship and guardianship authorities, if necessary for the alienation of the apartment	40%
provide all necessary information on documents relevant to the registration of a transaction	10%
deregistration of all persons residing in the object, before signing the contract of sale	10%
execution of a power of attorney from the owner of the apartment to receive an advance on the object	5%

Thus, the realtor will be able to prove that the service, for example, was provided by 85% and demand payment of remuneration. True, it is not clear whether a real estate specialist can prove in court that he rightfully withheld the advance. Most likely, the court will offer the realtor to return the advance to the client. And in order for the realtor to recover actual losses incurred from the former client, he will have to make a counterclaim.

Contract time

The contract for the provision of services must necessarily indicate the period of its validity, as well as the conditions for extending this period and terminating the contract. Experts recommend concluding a contract for no more than three months.

Lyudmila Plotnikova, UPN lawyer:

“You need to pay attention to the duration of the contract. We would not recommend concluding a contract for six months or more. Three to four months is enough. If everything suits you: how the agency works, what actions they perform, what kind of advertising comes out, then you can extend the contract, or terminate it due to the expiration date.

Termination of an agreement

Agency contracts for the provision of services can be terminated early without penalty only in three cases:

1. Action of force majeure (force majeure);
2. Death of the owner or loss of legal capacity;
3. Acts of public authorities ( local government), excluding the possibility of fulfilling obligations under the contract.

In other cases, if the contract is terminated unilaterally, penalties are provided. As a rule, the amount of the fine is equal to the amount of the remuneration of the realtor. However, lawyers are sure that the stipulated penalties are not lawful.

“We have such a concept as “refusal to execute a contract for the provision of services”. In accordance with Article 32 of the Law "On Protection of Consumer Rights", that the customer of the service may at any time withdraw from the contract for the provision of services and demand a return Money net of actual expenses incurred. However, if the client wants to terminate the contract, real estate agencies usually apply penalties for the fact that the contract is terminated unilaterally. It is not right. If there are actually incurred expenses, confirmed by payment documents, then the agency has the right to deduct. If the expenses are not confirmed by payment documents, then it is unlawful to collect any amounts from the client.

The client may insist that penalties for early termination of the contract unilaterally be replaced by the payment of expenses actually incurred by the realtor (which, by the way, must be confirmed by payment documents).

Liability under the contract

According to lawyers, realtors in Yekaterinburg are liable to clients only in three cases:

1. Refusal to fulfill obligations under the contract (punishable by the payment of a fine);
2. Loss of documents (realtor independently restores documents, no fines are provided).
3. Sale of the object to third parties (return to the buyer of the transferred funds for the purchase of the object and payment of a penalty in the amount of the refinancing rate of the Central Bank).

If the client fails to register the ownership of the apartment, which was chosen with the help of a realtor, or there are other difficulties with the object, in accordance with the contract, the client will have nothing to ask the real estate agent. However, the Civil Code provides for the responsibility of the contractor for a poor-quality service. And since the result of the realtor's service is the purchase of an apartment by the client, and the client was left without the purchased housing, it is considered that the service was not provided.

Marina Timoshenkova, co-chairman of the SROO "Society for the Protection of Consumer Rights of the Sverdlovsk Region":

“The buyer turned to a real estate agency, the agent picked up an apartment for him. After the conclusion of the contract of sale, it turned out that this apartment was pledged to the bank. The problem is that the real estate agency is not responsible for the property that it offers to its client, and immediately relieves itself of all responsibility. But Civil Code it is stipulated that under the contract of sale the apartment should not be encumbered, should not be under arrest, that is, it should be free from the rights of third parties. How the agency checked the documents - history is silent. The buyer, although conscientious, is obliged to return this property. In that case, losses were recovered from the real estate agency, the client was returned the paid remuneration to the realtor.

***

Even if the realtor has an impeccable reputation and is recommended by all friends and acquaintances, a service agreement that balances the interests of both parties should be written as carefully as possible. This will not only help keep business relationship with a realtor, but also do not destroy friendships.

The study conducted in the Rostov region allows us to note some aspects that consumers need to pay attention to when concluding contracts with real estate agencies:

1. Particular attention must be paid to the subject of the contract being concluded and the amount of remuneration for services rendered, which may be monetary form or in the form of any other consideration.

The conditions and procedure for the provision of a particular service largely depends on what kind of contract the contractor concludes with the customer (agency, commission or services), since the scope of the rights and obligations of the parties in the contract depends on this.

If the name of the contract does not indicate what type it belongs to, then it is necessary to pay attention to the obligations of the contractor.

Many realtors do not specify the remuneration clause in the contract in a clearly expressed form. However, the presence of a clearly defined remuneration condition can solve a number of problems that may arise in the future.

So, if the price is not agreed upon, the customer will have to pay for the services at the price usually charged for similar services under comparable circumstances (clause 3, article 424, articles 783, 709 of the Civil Code of the Russian Federation). The price determined in this way may not meet the expectations that the parties had at the conclusion of the contract. As a result, the customer will be obliged to pay more for the services than expected.

2. It is necessary to pay attention to the fact that the terms of the contract concluded with the contractor can significantly infringe on the rights of consumers.

So, in a number of contracts submitted for review, real estate agencies do not indicate the terms for the provision of services, and therefore, in all the above contracts there are no conditions on the responsibility of the service provider for its violation.

Also, attention should be paid to the risks associated with the completeness of the performance of services by real estate agencies and the conditions for the jurisdiction of disputes.

In the contract, depending on the specifics of the transaction, the parties may provide for a condition on the procedure for compensation for losses caused by improper performance or non-performance of contractual obligations.

3. As a rule, the cost of the real estate service provided to search for a property for sale or rent includes the cost of the so-called related services for the transaction (preparation of documents, consultations, etc.), but the performers may not directly prescribe that they are obliged to do in the interests of the customer, except for the search for a property.

Thus, the Customer needs to pay special attention to the subject of the contract being concluded and the scope of the rights and obligations of the contractor, i.e., what exactly is the contractor obliged to do within the framework of the contract being concluded.

The consumer must remember that according to paragraph 3 of Art. 16 of the Federal Law "On Protection of Consumer Rights", the contractor is not entitled to perform additional paid work, services without the consent of the consumer. The consumer has the right to refuse to pay for them, and if they are paid, to demand from the contractor the return of the amounts paid for such works (services).

In this norm we are talking about services (works) that are not the subject of the contract and the cost of which is included in its price (for example, the preparation of a contract, if the subject of the contract is only a property search service).

4. It is not uncommon for real estate agencies to stipulate in contracts a condition for the consideration of disputes under the contract in court at the location of the defendant, which can significantly complicate and even make it impossible court order protection of their interests by the client. The consumer has the right to demand to change this condition of the contract for the provision of real estate services, since the legislation of the Russian Federation provides for alternative jurisdiction at the choice of the plaintiff, therefore, the inclusion by real estate agencies in the contract of a provision on the jurisdiction of the dispute only at the location of the defendant can be considered as infringing on the rights of the consumer established by law.

5. A direct violation of the rights of consumers of services is the amount of penalties established by real estate agencies in contracts. The amount of the penalty specified in the contracts is several times higher than the allowable one, the Law "On Protection of Consumer Rights",

penalty amount. In this case, it is possible to recommend consumers to demand reduction of penalties to the amount allowed by the Law.

It is also a violation of the requirement of real estate agencies to establish the responsibility of the Customer in the form of penalties for the disclosure of "confidential information" received from the contractor to third parties, since in order to recognize information as confidential, it must meet a number of criteria provided for by the Law "On Commercial Secrets", one of which is the definition of a list of information constituting trade secret, as well as restricting access to information constituting a trade secret by establishing a procedure for handling this information and monitoring compliance with such a procedure, including access by third parties.

6. Article 32 of the Law “On Protection of Consumer Rights” provides for the possibility for the consumer to terminate the contract for the provision of real estate services unilaterally at any time, provided that the contractor pays the costs actually incurred by him related to the fulfillment of obligations under this contract.

Establishing prohibitions or restrictions on the exercise of this right is illegal and contrary to the rule of law provided for

7. At the time of the conclusion of the contract for the provision of real estate services, it is necessary to familiarize yourself with the documents containing information about the service provider (real estate agency). At the same time, attention should be paid to ensure that information about the services provided (list of services, type of services, cost of services, obligations and responsibilities of the parties) are clearly and fully spelled out in the contract.

It should be noted that the contract for the provision of real estate services is a subspecies of the contract for the provision of services for a fee (order, agency contract) and must comply with the requirements of the Civil Code of the Russian Federation established for this type of contracts.

If the term of the contract for the provision of services for the sale of real estate has expired and the additional agreement signed to it has also expired, is the Customer liable under this contract in accordance with paragraph 2 of Article 781, 783 of the Civil Code of the Russian Federation?
Marina

Hello Marina!

according to the Civil Code of the Russian Federation

Civil Code of the Russian Federation Article 781. Payment for services
1. The customer is obliged to pay for the services rendered to him within the terms and in the manner specified in the contract for the provision of services for compensation.
2. In case of impossibility of performance due to the fault of the customer services are subject to payment in full, unless otherwise provided by law or the contract for the provision of services for compensation.
3. In the event that the impossibility of performance has arisen due to circumstances for which none of the parties is responsible, the customer shall reimburse the contractor for the expenses actually incurred by him, unless otherwise provided by law or the contract for the provision of services for compensation.

Article 783 Legal regulation paid service contracts
The general provisions on the contract (Articles 702 - 729) and the provisions on domestic contracting (Articles 730 - 739) shall apply to the contract for the provision of services for compensation, unless this contradicts Articles 779 - 782 of this Code, as well as the specifics of the subject matter of the contract for the provision of services for compensation.

As for the timing, according to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165<Обзор судебной практики по спорам, связанным с признанием договоров незаключенными>

By virtue of Article 783 of the Civil Code of the Russian Federation general provisions on a contract are applied to a contract for the provision of services for a fee, if this does not contradict Articles 779 - 782 of the Civil Code of the Russian Federation, as well as the features of the subject matter of the contract for the provision of services for a fee.
From the essence of the contract for the provision of services, it is seen that the terms for the provision of services are not its irreplaceable condition: the fact that there is no express will of the parties for the specific terms of the provision of services is not a basis for recognizing the contract as not concluded, since the relevant relations of the parties can be applied general provisions of the Civil Code of the Russian Federation on civil law contracts and obligations (in particular, paragraph 2 of Article 314 of the Civil Code of the Russian Federation). By virtue of Article 783 of the Civil Code of the Russian Federation, the general provisions on the contract apply to the contract for the provision of services for a fee, unless this contradicts Articles 779 - 782 of the Civil Code of the Russian Federation, as well as the features of the subject matter of the contract for the provision of services for compensation .
From the essence of the contract for the provision of services, it is seen that the terms for the provision of services are not its irreplaceable condition: the fact that there is no express will of the parties for the specific terms of the provision of services is not a basis for recognizing the contract as not concluded, since the relevant relations of the parties can be applied general provisions of the Civil Code of the Russian Federation on civil law contracts and obligations (in particular, paragraph 2 of Article 314 of the Civil Code of the Russian Federation).

if you want to get a more complete consultation, you have the right to contact any lawyer in the chat.

The process of customer relationship with realtors often raises many questions. With whom exactly to conclude an agreement - with a specialist who will conduct a transaction, or with an agency where he works? What exactly is a 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 elaborate on the legal features of the relationship between realtors and their clients. Since 2002, compulsory licensing of real estate activities has been abolished in Russia. Since then, the state has not actually controlled the profession: there is no definition of a real estate service, no generally accepted requirements for the work of agencies and their employees. A the only document that governs relationships professional operators this market with customers is the contract concluded between them. Mandatory requirements to him, again, are absent.

Agencies offer clients different kinds agreements: contract of commission, agency, paid services. All of them are provided for by the Civil Code of the Russian Federation and are completely legal. The choice of a specific form of agreement depends on the characteristics of the transaction and the volume of services provided by the agency.

If the work will be carried out under an exclusive agreement, then here the agreement must be concluded with a real estate agency, since it is it 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 signature under the contract puts CEO or their designated representative. It is possible to enter into an agreement with a private agent only if he has the status individual entrepreneur. Only in this way can he give his client any guarantees.

Given that there are no legal requirements for the content of the agency agreement, the amount of responsibility that the company or its employee bears to the client must be spelled out in detail in the document itself.

It makes sense for the client to remember that he has every right to insist that in standard contract, which the agency will offer him, certain additional items were introduced. Of course, if they do not violate the current legislation.

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

However, according to experts, commission agreements can carry a potential danger for clients, therefore, their conclusion should be treated with the utmost care, clearly understanding exactly what actions and to what extent you entrust.

Checking the purity

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

To receive this payment, you need to go to court and establish by whose fault the buyer was damaged. 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, but in practice it is almost impossible to prove the agent’s dishonesty, and even more so to recover a penalty from him.

In addition, by 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 has carried out its work without errors. For example, if after registration of the rights of the buyer, an heir unexpectedly appeared, the existence of which was unknown to anyone.

Responsible for a deal

In the absence legislative regulation real estate activity, all conflicts between agents and their clients are resolved based on 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 due to shortcomings in the work performed."

However, according to experts, cases when a realtor paid compensation to a client are extremely rare. In practice, the responsibility of a realtor is almost always limited to the amount of commission received by him. The fines and forfeits prescribed in the contract are rarely accepted by the courts - the servants of Themis qualify any forms of agreements concluded between the parties as contracts for the provision of services for compensation. And the main feature of such agreements is that in the event of their unilateral termination, it is almost impossible to recover a penalty.

In the dry residue we get the following: arbitrage practice to resolve conflicts between realtors and their clients today has not developed. Largely due to the fact that regulation, legal regulations and mandatory property liability of realtors today does not exist.

Clients can only rely on the fact that conscientious 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. 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 here.

An additional guarantee for the client may be the membership of the agency chosen as an intermediary in any professional association, since the liability of their members is usually insured. In case of force majeure, this will more or less cover the financial losses of the client.

It may make sense to insure the title of the property yourself. The cost of such a service depends on the cost of housing and the term of insurance.
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