The concept of a real estate agency agreement
When it comes to using the services of an agent, there is no exception for a legal entity. An agency agreement is a local document, the main purpose of which is to consolidate agreements regarding actions in the interests of a citizen.
Let's give an example. A person owns real estate (for example, a country house) in another city and wants to sell it. Due to work or other reasons, the owner of the house is not able to go to another city and show the house, sell it and negotiate with realtors. It is in such cases that agents are needed; they draw up an agreement with the owner of the property and provide services for the sale of the building. An agency agreement can be concluded with both an individual and a legal entity - a company.
In order for the contract to be not only legal, but also productive, it is necessary to discuss in detail (write down in the lines of the document) all the specific tasks that are delegated - searching for potential and actual buyers, negotiating with them, setting prices, bidding, drawing up sales agreements, etc. d.
In order for an agent to be trusted (the legality of the contract depends on the legality of this person’s powers), he must have special permits and licenses.
It is important to remember: a real estate agent and a realtor (who may not only have a license, but also, as experience shows, secondary education) are completely different people.
- The person hiring the agent, i.e. Most often, the owner of a real estate object (less often a company or legal entity) is called a principal . He is also the customer and manager.
- The payment for the work of the agent under the contract is called rental compensation . This amount is discussed from the very beginning, long before the contract is drawn up. It is important to remember: the rental fee does not include the agent's operating expenses. Additional amounts (transport costs, office expenses, etc.) can also be agreed upon in advance.
Civil law. Responsibility of realtors for documents
What code, and what article, covers the actions of a realtor who uses documents for an apartment as a means of extorting money, while referring to void contracts? Do realtors generally have the right to keep original documents confirming the ownership of housing of those citizens who turned to them for services, or is this an initiative only of the realtors themselves, and only in Omsk?
Vereshchagin Igor Nikolaevich
It all depends on the specific situation. A realtor may be subject to both civil and criminal liability.
Real estate activities are carried out by real estate agencies (legal entities) and professional realtors (individual entrepreneurs).
The requirement of realtors to transfer for storage (sometimes as insurance so that the transaction does not “go away”) of original documents is a widespread practice.
In some cases, the need for the realtor to have original documents is determined by the type of services specified in the contract. Thus, services for preparing the necessary documentation for an apartment (for example, obtaining a technical passport) require the presence of originals, but when providing services to find buyers and further support the transaction, originals are needed only at the time of concluding a service agreement, when the realtor gets acquainted with the title documents.
In any case, you decide for yourself whether to leave the original title documents or not.
In the event that you decide not to leave the original documents, you need to be prepared to appear at some institutions yourself to present the original documents, which, of course, may not always be possible and may not always be convenient for you.
If you decide to hand over the originals, please exercise some caution.
First, read the contract carefully. Analyze the contents of the contract in advance, and it is better if such analysis is carried out by a competent person.
Secondly, any documents, and especially the originals, must be transferred according to the inventory. Double-check the document details in the inventory. Do not forget to take your copy of such an inventory, signed by the parties. Thirdly, when issuing a notarized power of attorney for a specific realtor, do not give him the right to complete a purchase and sale transaction. Fourthly, having decided to turn to specialists in the field of real estate services, give preference to those real estate agencies (or individual entrepreneurs) that have proven themselves to be impeccable work for more than one year.
Doc-Net , answers your questions
What are subagency leases?
Very often, when contacting a real estate agent, the owner of the property is informed that a subagency agreement will be drawn up. Often citizens are confused and embarrassed when they hear such terms, but this means that the principal is faced with mediation.
A subagency agreement means that the agent to whom you entrust the task does not personally perform the services, but reorders the assignment further. Those. technically he is your agent, but technically he is a third party. Most often, this happens when large firms and organizations entrust complex tasks to agents and the agent, trying to cope with them, redirects small and unconstructive tasks to sub-agencies.
It should be remembered: the responsibility for completing all tasks and all clauses of the real estate agency agreement is the direct agent, and not the subagent, etc.
Regulatory regulation
A real estate agency agreement is a type of agency agreement, which is provided for in Article 1005 of the Civil Code of the Russian Federation. The essence of this agreement, from a legislative and regulatory point of view, is the ability to grant rights to a party (agent) to sell, rent and purchase real estate.
The most basic thing from the perspective of civil law is the exact agreement of the price for which the agent must sell the property. Even if the owner of the property considers himself incompetent in matters of pricing, you cannot instruct the agent to set the price yourself. This is why there are professional real estate appraisals.
How to conclude an agreement with a realtor: main mistakes and ways to avoid them
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Real estate lawyer at the Etalon Consulting Group, Pavel Maksimenko, named the top 6 tricks of unscrupulous realtors and told how to avoid them.
1. Inaccurate wording
Avoid vague language in the contract such as: “The Contractor undertakes to provide services to support the purchase of premises.”
“This way of posing the question is dangerous for the wallet of a potential buyer, since it is not stated anywhere what exactly a realtor does, what services he provides and what you ultimately need to pay for,” says the expert. Thus, an unscrupulous realtor gets the opportunity to charge additional fees for services. For example, for checking documents for “legal purity”, for obtaining an extract from the Unified State Register of Real Estate, for personal selection of premises, etc.
Carefully study all the clauses of the contract before signing it, offer to change the clauses you don’t like, make clarifications to the contract indicating a specific list of services, it is advisable to write everything down in a separate document and have it certified. The best way to do this is to draw up a protocol of disagreements to the agreement: it records all changes, after which this document and the agreement are signed by both parties, the lawyer advises.
Types of AD for real estate
There are several types of contracts and several types of classifications of these types. On the one hand, contracts may differ from each other in the type of operations:
- contract for the sale of real estate;
- real estate rental agreement;
- contract for the purchase of an object;
- agreement for the provision of intermediary services;
- contract for legal support;
- an agreement coordinating real estate management issues;
- real estate selection agreement.
There are also other types of civil contracts that are provided for by the Civil Code:
- on behalf of the principal;
- by myself.
This classification of contracts is very accurate, as it identifies fundamental differences. A contract “on behalf of the principal” implies that the agent will act exclusively on behalf of the customer. Despite the fact that such a scheme seems to be the most rational, the “in itself” type agreement is more profitable.
Example: a company or individual hires an agent to build a store. To do this (concluding an agreement “on its own”), the agent will have to independently conclude (on his own behalf, and not on behalf of the principal) agreements regarding the lease of a land plot or its purchase. This may turn out to be more profitable, since only one task is set, and the type of contract itself does not require the customer to solve a number of issues independently.
It should be remembered that in this case, all funds that the agent pays for the implementation of intermediate tasks (rental cost of a land plot, etc.) are not part of the agent’s remuneration.
Blood pressure report
A report on the activities of an agent under a contract is not just a wish. According to Article 1008 of the Civil Code, a progress report is required even in cases where the principal does not need it.
- If the received report contradicts any clauses of the agency agreement, then the principal has the right to demand correction of the shortcomings. In such cases, the contract is considered unfulfilled.
- The agent is a full-fledged person in this transaction and may disagree with the principal. In order to object to the claims and dispute them, he has (according to the Civil Code of the Russian Federation) 30 days.
The video below will tell you about real estate AD:
Unilateral procedure for termination of the contract. How to avoid penalties and fines
If you terminate a contract unilaterally, you should act wisely; this will help you avoid paying penalties and fines.
In order to understand the risks of inevitable losses, it is necessary, at the stage of agreeing the contract, to provide for several options for the development of events related to the purchase and sale of real estate, and, if possible, to spell out in detail the obligations of the parties in the event of the intention of unilateral termination of the transaction by one of the participants.
It is necessary to take into account that a number of requirements previously stated in the contract may contradict the Civil Code of the Russian Federation, then their application is impossible.
Threats of fines and penalties will not have grounds according to the law.
In the situation of paid remuneration and subsequent unilateral termination of the contract, you can demand a refund, referring to the norms of the law.
The Agency can only retain the amounts spent, motivating the fulfillment of obligations under the contract. Realtors are obliged to return the rest of the money without delay.
Thus, it is possible to terminate the agreement unilaterally at any time, only by losing funds for the expenses actually incurred, confirmed by documents.
This is in accordance with the provisions of this legislation. If the decision to terminate the contract is made final, a number of actions must be taken to prove intention.
This will require written notification with a mandatory date.
Further two ways:
- or independently deliver the notification to real estate agency specialists with mandatory confirmation of receipt, this may be an employee’s signature on a copy of the notification
- or send a notification by registered mail to the legal address of the real estate company; a copy of the document must be kept with you along with the postal receipt
It makes sense to terminate a contract unilaterally if the financial benefit from its termination is obvious
Unilateral termination of the contract occurs when an independent decision with financial gain appears.
But the risk of receiving fines can cloud the prospect of a successful transaction.
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For example, an agreement with an agency has been agreed upon, signed, and entered into force.
But if a buyer of an apartment appears on terms that are better than those specified in the contract, you will want to terminate the contract unilaterally.
There is a risk of paying heavy fines and penalties for non-fulfillment of obligations, or improper fulfillment of obligations.
Resolution of controversial issues arising between citizens and real estate companies is carried out in accordance with the provisions of the Federal Law “On the Protection of Consumer Rights”
It is necessary to distinguish between two consonant concepts with different consequences.
Each service provided under the contract must be reflected in a duly executed and signed certificate of work (services) performed.
In case of their absence, penalties are not threatened; they are not provided for by law. If available, the money spent cannot be returned.
This again proves the need to adhere to certain positions and maintain order in previously reached agreements.
It should be remembered that relations between citizens and real estate firms are intermediary in matters.
Accordingly, the rights of individuals as clients are protected to a greater extent than the rights of contractors providing services.
The consumer is legally provided with the following guarantees:
- maintaining rights that do not infringe on the interests of the client, even if the terms of the contract are not met (Article 16): contacting other realtor companies, conducting an independent search for a buyer, etc.,
- payment of the penalty prescribed by the parties to the agreement in case of violation of the terms of the exclusive contract may worsen the consumer’s position, which means it is not necessary to pay it;
- refusal of the company's services for any period with reimbursement of expenses actually incurred; return of sums of money if the agency fails to fulfill its obligations within a certain period,
- the contract may be terminated, and within the specified 10 working days the remuneration must be returned to the Customer.
It should be noted that if the consumer does not want to voluntarily return the funds paid in advance, the contractor will have to pay the fines determined by the court decision.
