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Rentals: after the new law, 5 key questions about the deposit and how it is returned

2021-07-01T10:42:10.071Z


The rule sought to lower that expense for the tenant. But it still doesn't apply to everyone. And the owners evade it.


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

Look also

Rentals: what the new law says about repairs and how to act before a failure or breakage in the house

Expenses: the 10 measures that neighbors can take so that they are not so expensive

Source: clarin

All news articles on 2021-07-01

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