Both the sale and purchase of an apartment are subject to certain risks. Although it may seem that the buyer is taking a greater risk, the person selling the flat is also exposed to unfair actions. So how to safely sell an apartment? What is worth checking before selling, what to look for at the notary's office and how not to be deceived? These questions should be answered by everyone who is getting ready to sell an apartment.
Preliminary contract or immediate sale contract?
A preliminary contract in the form of a notarial deed is a certain security for the seller. It is signed in order to oblige the buyer and the seller to define the terms of sale and terms that will be included in the final form of the contract. Writing a preliminary contract is not necessary, it is rather a security, thanks to which you can request the final contract to be signed in court. The condition for this is to maintain the form of a notarial deed. An important point in the contract of sale itself is the fact that the buyer is subject to enforcement for the payment of the apartment price, which was included in the preliminary contract. On this basis, the seller may claim his rights by way of judicial enforcement as to the payment due to him under the contract.
What is the difference between an advance and a deposit?
Advances and advances are an extremely important issue in the sale of real estate. Although many people colloquially use the two terms interchangeably, legally they differ significantly from each other. The advance payment is part of the amount that the buyer has agreed to pay for the property. The paid earlier may be returned if the preliminary contract is not terminated or the previously agreed conditions have not been met.
The guarantor of the real estate sale agreement is a down payment. If the buyer breaches the contract, the down payment is non-returnable. On the other hand, in a situation where the seller fails to meet the conditions, the seller returns a double deposit. The down payment may be included in the final price if it is included in the final agreement.
The role of the bank
In principle, it is limited to issuing a positive or negative credit decision to the buyer on the basis of a preliminary contract. The loan is disbursed after the conclusion of the notarial deed. The seller is not a party to this transaction, however, as it turns out, it is not a guarantee that the sale price will be paid. Often, a loan agreement requires the buyer to meet certain additional conditions. If they are not met, the loan is not released and the funds are not disbursed. You can protect yourself against this by reviewing the arrangements between the buyer and the bank, but from a legal point of view, it will be courtesy on the part of the buyer. The seller may not become involved in such arrangements, change the content of the loan agreement, because he is not a party to this matter.
The situation is different when the buyer does not use the services of the bank and buys the flat for cash. The transaction is secured by a notary's deposit, i.e. money transferred to the notary's account, which the notary pays to the seller upon conclusion of the contract. This is how the safe sale of an apartment for cash looks like. The buyer does not risk transporting a large amount of funds, and the seller does not have to worry that the money will turn out to be counterfeit.
Worst case scenario for the seller
There is such a possibility that despite signing the deed at the notary's office, the apartment ceases to be owned by the seller, even though he has not received payment. The apartment becomes the buyer's possession at the time of concluding the sale contract. Paying the price of an apartment does not transfer ownership. Only the contract certifying the sale of real estate, in which the client acquires rights to it and the seller disposes of them, is the basis for the transfer of ownership. As for the entry in the land register, it is only a confirmation of the transfer of these rights. But there are also exceptions to this, but they concern the purchase of an apartment from a developer, not on the secondary market.
Interestingly, in the case of transactions of movables, it is possible to provide that the property rights are not transferred until the full payment is made. However, in the case of real estate, such a record is not possible. The Civil Code, section 157 clearly indicates that a definitive contract with disposable effect does not allow for the condition of transfer of movable property at the time of payment. This cannot be included in the contract as it will be open to legal challenge. Such a contract is simply invalid.
You can protect yourself in advance and avoid such unpleasant situations. Ideally, payment should be made before or immediately after the conclusion of the contract. A safe solution is to use the services of a notary public and make transactions through it.
How to choose the right notary and broker?
A verified notary by the Minister of Justice is an adequate person to support the transaction process, conclusion of the contract and such activities. It is worth reading opinions about a given person to protect yourself from the incompetence of a notary.
The real estate broker must have purchased the appropriate insurance policy, but this is not a guarantee of his skills. That is why it is worth checking such a person beforehand, confirming their reputation and only then decide to cooperate.