Perhaps you don`t use a notary deposit, but we'll tell you why (and when) it's worth doing. What are the three advantages of a deposit in front of a bank in terms of payments for real estate? Who owns the money on the deposit, until they have not been taken away by the lender, and can you change your mind and return the funds? However, it is worth knowing about the minuses of the institute. For example, the possibility of dishonestly getting rid of bail or surety, without actually paying the principal debt. Or about the risks associated with the bankruptcy of the bank. They are illustrated by a story with a multi-million-dollar deposit, for which the Deposit Insurance Agency and the country's chief notary are fighting.
Three advantages: why the deposit is better than a banking cell
In addition to corporate settlements, the deposit is often used in real estate purchase and sale transactions. And here the banking cell is losing to him, says Irina Shamileva, head of arbitration practice at the National Law Company “Mitra”. "The bank is not responsible for the content of the cell, and you can`t prove how much you put there," Shamileva argues. - In addition, the bank can open your cell after a certain time. Usually it's 20 days after the end of the lease period, which means that you will also have to control the terms. "
A notary, who certifies the transaction, will transfer money to the seller, as soon as the ownership of the buyer in Rosreestr will be registered, continues Shamileva. The deposit of the notary, according to her, is not more expensive than the banking cell, especially in those cases when the same notary certifies the transaction.
The one who receives money and doesn`t answer for them
A deposit of a notary allows you to overcome the difficulties that arose on the way of fulfilling the obligation, and thus avoid penalties and penalties for delay. And moreover, for the period of money on deposit, the interest that the creditor receives can be "run into" on them, and in case of a refund, the debtor, Shamileva notes.
An important guarantee of the deposit is that the funds paid are not the income of the notary and do not act, even temporarily, in his property, Shamileva says.
Temporary deposit tricks
The creditor receives what is due to him, not at the moment when the debtor pays, but later. Such a time gap allows the latter to change his mind and regain money or securities that the creditor has not yet had time to obtain (or present a claim). In this case, the debtor is considered not to fulfill the obligation (Part 3, Article 327 of the Civil Code). Thus, he can get rid of bail or surety - after all, if execution through the deposit terminates the basic obligation, then it is possible to "shake off" and accessory [and then regain the main debt - "Pravo.ru"] with bad faith. Glovov warns of this danger. However, he hopes for judicial practice, which should close such a loophole.
The lender, in turn, may not apply to the notary for debt - and not necessarily because he does not want to. There are other reasons, which Shamileva tells about. For example, an unscrupulous debtor only pretends that he can`t find a counterparty, but in fact knows perfectly well where he is. And the unsuspecting creditor continues to wait for the debt to be repaid in the usual way. "Only the creditor can make certainty with the help of a lawsuit to return the debt," Shamileva says. - The outcome of the dispute will depend on the limitation period. And the alleged execution of the debtor will not play any role, because he acted in harm. "
And what if the creditor himself went bankrupt? So, the bankruptcy trustee must claim the deposit. Up to this point, creditors of the bankrupt can`t claim the property, and it can`t be included in the bankruptcy estate. It turns out, money or securities on the deposit so far continue to belong to the debtor, although he can no longer dispose of them, explains Shamileva.
Materials were taken from “Pravo.ru”
