Martin Grosz
07/01/2021 6:01 AM
Clarín.com
Services
Updated 07/01/2021 6:01 AM
The
security deposit
is one of the main costs faced by the tenant when entering a home.
The new rental law sought to reduce it and set clear rules for its return.
But the issue still generates
doubts and discussions
because the rule, in force for a year, still does not apply to everyone.
And many owners are
determined to avoid it
.
The deposit is an amount that the landlord
withholds
to encourage the tenant to not leave
unpaid bills
or
unrepaired
damages
at the end of the lease
.
Since, in those cases, you will not be able to get the money back (or at least not all).
What was established by law 27,551 - highly criticized for having triggered strong price increases - is that the
deposit
required when renting a home:
It can no longer be "greater than the amount equivalent to the
first month's rent
."
Only one month for the
three years
that, at least, the contract has to last.
It must be returned with "a sum equal to the price of the
last month
" or a proportional amount to that sum if the deposit was less than one month's rent.
That is, with an
adjustment
at the expense of the owner.
The refund must "be made effective
at the time of restitution
of the property."
That is, when it is vacated and the keys are handed over.
All this marked a
sharp contrast
to the usual, which was to ask for a deposit equivalent to
one month
's rent
for each year
of the contract and return it without any adjustment, sometimes
30 or 60 days
after departure.
Before the law used to ask for up to 2 months of rent as a deposit in 2-year contracts.
Now only 1 month for 3 years.
Photo: Juano Tesone.
The new law is clear, but not its transfer to reality, which moves in
slow motion
, encounters
resistance
and causes various discussions.
To such an extent that in the Ombudsman's Office of the City
1 in 3 inquiries
about rents are about deposits and the problems that many tenants face to recover them.
Should the new rules already apply to returns that have to be made
in these months
?
Do the old conditions remain if the contract is extended or renewed?
In what specific cases can the owner
refuse to return
the money, and how to act in the event of a disagreement?
Here are
five big
questions
that appear today between owners and tenants about the deposit, and everything they both need to know.
1. In a contract that is about to end, what rules apply to the return of the deposit?
The new law entered into force on
July 1, 2020
, but in its text -article 23- it clarifies that all its provisions are only applicable to contracts that have been entered
into after that date
.
And not the previous ones.
The rentals that are currently ending, instead, mostly started in
2019
.
Thus, all those tenants
cannot demand
that their deposits be returned immediately or at current value, if that was not foreseen.
As contracts signed in the last year under the new law must last
at least three years
(one more than before), the most advantageous return conditions would only be widely applied as of
July 2023
.
The provisions of the new rental law do not affect contracts signed before July 1, 2020. Photo: Emmanuel Fernández.
"Likewise, even in old contracts, the delay to return the deposit should be
reasonable
,
never more than 30 days
after the house was vacated," said
Andrés Bernal
, lawyer for the Tenant Attention Program of the Buenos Aires Ombudsman.
"There are cases in which the tenant has been made to sign that they will receive it only after 60 or even
90 days
. There is no justification for something like that. Whoever is in that situation can
activate a claim
and we will seek to reconcile," he added.
2. If a contract is extended, what rules apply regarding the deposit?
In disagreement with the new law - which also only admits a single annual increase, tied to an official index - many owners today
are reluctant
to sign
new contracts
.
At the end of a current one - celebrated under the old law - they refuse to renew it.
They only allow
extending the current one
, changing the price, but maintaining all the conditions: among them, the deposit of more than one month and its return
without adjustment
.
"If it is renewed, the new law must be applied. But, if it is a contract signed before July 1, 2020, it can be extended
while maintaining the
previous
conditions
," explained Enrique Abatti, a lawyer specialized in Real Estate Law and president of the
Chamber of Property Owners
of Argentina.
The expert argued that once a two-year rental contract has expired, the extensions allow it to be extended for an additional
18 years
, during which time everything would continue to be governed by the old law.
"
Most
today are doing that to be able to continue applying
foreseeable
semi-annual adjustments
for both parties. Also, prices may be lower," justified Abatti, head of the Abatti & Rocca Study.
In the Buenos Aires Ombudsman's Office, on the other hand, they understand that this procedure
is not admissible
.
They say that you cannot speak of "extension" if there is a price change, since something like this alters the conditions of the original contract.
And they qualify the maneuver as a "
fraud to avoid
" the law.
According to Bernal, those who have signed such an extension can send a letter document
denouncing as invalid
all the clauses that are unknown to the law, and assume that the contract was renewed for
three years
.
In the Defensoría they offer legal assistance for that.
3. If a new lease is signed, can't the owner ask for more than a month's deposit?
The main objection of the owners to the provisions of the new law on the deposit is that
a single month
's rent, for a contract of
three years
or more, is insufficient to
fix the
most common
damages
that occur at the end of the contracts.
"If they broke the air conditioning, destroyed the hot water tank, ruined the parquet or had to paint walls,
$ 30,000 is not enough
for anything," said Abatti.
And he said that, also at this point, the owners find a way to "
surround the law without violating it
", to continue requiring larger deposits.
What does it consist of?
The law says that "
the tenant
cannot be required
" more than one month's rent as a deposit.
"But nothing prevents
a third party
, for example
a friend
or the guarantor, from increasing the deposit by another
1 or 2 months
, as an
accessory guarantee
," said Abatti.
The owners seek to take advantage of legal "grisis" to maintain the conditions precedent to the rental law.
Photo: Archive.
According to the representative of the owners, this could be done based on the principle of "
freedom of contract
" contained in article 958 of the Civil and Commercial Code.
In the
Buenos Aires
Tenant Ombudsman's Office
, however, they insist that such clauses
are invalid
because they go against the spirit of the law and only seek to avoid it.
"You can report and
request the return
of the money, in case they have charged a deposit greater than expected," they told
Clarín
.
4. When returning the deposit, what can the owner deduct and what not?
Many tenants complain that the landlord, at the end of the lease, refused to return the deposit or returned it
at a discount
, without valid reasons.
In fact, the law gives the owner the right to use that money in only two cases.
Cause 1: unpaid bills remained
The tenant must pay the electricity, gas and part of the expenses.
Photo: Archive.
The law clarifies that, if there is a
debt for
public
services
or expenses that at the time of delivery of the property had not been invoiced, "
its payment
can be agreed
taking for this purpose the values of the last service or expenses paid, or the landlord (owner ) may
retain
a sum equivalent to such amounts as a guarantee of payment ".
"In the latter case, once the tenant (tenant) pays the remaining bills, he must present the evidence to the landlord, who must
immediately return
the amounts withheld," adds the rule.
Cause 2: damage to the home
The Civil Code establishes that the tenant must “
keep it in good condition
”.
And that "upon concluding the contract, he must restore the thing to the landlord
in the state in which it was received
,
except
for damage arising from the
mere passage of time
and
regular use
."
Thus, if the unit is delivered with unrepaired damage that goes beyond the
expected deterioration
, the owner may refuse to return the deposit.
And even demand an
extra repair
.
If the tenant damaged the premises due to improper use, he must make the repair before leaving.
Photo: Shutterstock.
5. Can you retain the deposit for returning the unit unpainted?
This is one of the most frequent reasons that owners use to
keep the money
.
And it will depend on the case that is valid or not.
"If the house had been delivered
freshly painted
, they can not require the tenant to paint it before leaving, and take the deposit if he does not do it. Even if it appears in the contract, it is not valid," said Bernal.
"He should only take charge of painting a wall that has been left with a
complicated stain
or that the boys have
scratched
. But, if there was only a logical deterioration, no," he graphically.
At the City Ombudsman's Office they assist tenants so that they can recover unfairly appropriate deposits.
The agency provides advice to tenants through the line (011) 4338-4900, WhatsApp 11-2392-1644 and the email atencioninquilinos@defensoria.org.ar.
MG
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