August 2, 2021

What to do when the landlord insists on paying the last monthly payment with the deposit?


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When a rental agreement is about to end, or the tenant expresses his intention to end it, the temptation may arise, by either party, that the owner collects the last month’s rent at the cost of the deposit that was delivered at the signing of the contract.
A situation that can cause problems for both the landlord and the tenant
, and that when part of the owner’s interest can also hide that things have not been done in the right way.

The deposit is a guarantee for the landlord collected in the Urban Leasing Law (LAU), mandatory and equivalent to a monthly rent, although the two parties may agree to an additional guarantee. In fact, it is very common that the tenant is requested one month additional deposit, which is the maximum that the LAU allows in the rental of housing.

The purpose of the surety is to guarantee the fulfillment of the contract obligations, so that the landlord may refuse to return it in certain situations:

– If they exist non-payment of rent or supplies that have not been paid by the tenant at the end of the contract, such as electricity or gas.

– If the tenant has caused damage to the property that go beyond the deterioration caused by normal use.

– If the tenant fails to meet the deadlines established in the contract, due to lack of notice or completion of the same before agreed.

Therefore, the payment of the rent is not among the purposes for which the deposit can be used. Although this situation of paying the last month’s rent in charge of the deposit may seem at first to cause a greater damage to the owner, since it gives the impression that he thus loses the guarantee that he has before the end of the lease, the tenant may also suffer the consequences of this wrongdoing.

Non-payment of rent

In fact, although it has been agreed that the last month’s rent is paid out of the deposit, this deposit continues to exist, since it is in the possession of the landlord until the end of the contract, and can be returned within 30 days of its rescission.

What exists, therefore, if there is no document that proves otherwise, and if the rental contract does not state that the deposit will be used for this purpose, it is a non-payment of rent for the last month. In any case, if, as usual, the rental payment is made by bank transfer, complications can be avoided by entering the last month’s payment. You can also try to convince the landlord that the most beneficial thing for both parties is to comply with what the LAU establishes, which will also mean less complications for both parties.

If the landlord insists on paying the last month’s rent in this way, there is the possibility of recording this fact in writing, in the same document by which the contract is resolved, in which it will be necessary to state that both parties have reached an agreement to compensate the payment of the last month’s rent with the return of the deposit.

In any case, if after the termination of the contract, the landlord finds damage to the home, or if there are supply costs that have not been paid, he may claim the tenant for payment.

Obligation to post the deposit

On many occasions, behind the insistence of the owner to satisfy the last month’s rent on account of the deposit, there is a way of acting that is still quite frequent: that the landlord has not deposited the bond with the corresponding agency of the autonomous community, as required by the Urban Leasing Law, and that he probably does not have the money.

Failure to deposit the deposit within one month from the signing of the rental agreement is reason for termination, and it can also lead to a penalty for the landlord.

Beyond the fine that it may imply for the owner, not paying the deposit in the corresponding body may have tax consequences for the tenant, since in some regions this requirement is required to be able to benefit from the regional deductions for rent.

If the bond has not been posted, and the tenant includes that
deduction in your income statement
It may even be the case that the Tax Agency subsequently requests its refund.

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