This is the post you need to read if you want your deposit back when you leave the leased property in Spain.
Reuters Solicitors give you the clues in order to get the refund of the deposit.
Deposit back from the landlord
When and how you can claim the deposit back when you leave the property?
When a tenant rents a flat, he is obliged to give a month’s rent to his landlord as a deposit. This is what Ley de Arrendamientos Urbanos (LAU) of 1994 says in its article 36.1: “When the contract is signed, the requirement and provision of a deposit in cash in an amount equivalent to one month rent in the lease of houses and two month rent in leasing for a different use than housing. “
Article 36.2 also says: “During the first three years of the contract, the deposit will not be subject to updating. But each time the lease is extended, the landlord may demand that the deposit be increased, or the tenant that it decreases, until it becomes equal to one or two instalments of the current rent, as appropriate, at the time of the extension. “
At the time of leaving the rental property, the landlord must return the deposit given by the tenant and can only discount the outstanding debts: rents, the compensation stipulated in the contract if you leave it early, supplies and repair of damages that corresponds to pay the tenant. Of course, each amount that is deducted from the deposit must be perfectly justified with an invoice.
If a month goes by and the landlord has not returned deposit without any cause or excuse then the tenant can claim the deposit and his legal interests.
How much can be discount from the deposit?
1.- Unpaid Rents
If the tenant has stopped paying a month or part of a month, the landlord can collect the deposit. Of course, you must justify it.
2.- Agreed compensations if you leave the rental property before the end of the contract.
After six months of rent, the tenant can leave the rented flat at any time as long as he notifies the landlord with at least 30 days. However, there are cases where it has been agreed in the rental contract that the tenant will indemnify the landlord if he leaves the apartment prematurely and that compensation must comply with the provisions of the LAU in article 11:
“The tenant may withdraw from the lease, once six months have elapsed at least, as long as you notify the landlord at least thirty days in advance. The parties may agree in the contract that, in the case of withdrawal, the tenant must compensate the landlord with an amount equivalent to one month’s rent in force for each year of the contract remaining to be fulfilled. The periods of time inferior to the year will give rise to the proportional part of the compensation. “
Therefore, the landlord can demand compensation and collect the deposit if the tenant leaves the apartment prematurely, but to do so must have included the clause of dismissal and compensation in the rental agreement and collect it as stipulated by the LAU.
3.- Pending supplies
Generally, when a tenant leaves his apartment for rent he does not have time to pay all the household supplies (water, electricity, gas …) so, in many cases the landlord stays with the deposit to pay the last invoices of supplies and then return what is left over to the tenant. Another option is for the tenant to pay directly for the supplies (i.e. if he/she has a direct orders in his/her bank account), so the landlord delivers the deposit to the tenant the same day of the delivery of the keys if there is no other outstanding debt and the landlord would make the change of the utilities afterwards.
4.- Damages at the rental property
If the tenant has broken something in the rented flat should repair it or bear the cost of repair. If it is not repaired, the landlord can deduct it from the deposit as long as he accompanies the corresponding invoice. However, the questions are:
- What should be paid by the tenant? The answer is in article 21.4 of the LAU of 1994 when says: “The small repairs due to the ordinary use of the house will be the responsibility of the tenant.” So it is understood that if the tenant has been living on the property for some time and small repairs arise precisely because of the use of the house, he must assume the cost of these repairs. And, of course, if he breaks or damages the property he must also pay for it.
- And what should be paid by the landlord? He must take care of all the works that are necessary to do to maintain the habitability of the house.
Just to point out two issues:
- Painting: If a tenant has been living for several years on the property it is understood that there must have been a wear and tear on the paint and it is the landlord who must repaint the house for the next tenant. But if the tenant has damaged a wall (i.e. when placing furniture), then it should be the tenant who is responsible for the repair. Moreover, if the tenant decides to change the colour of the house paint without having the permission of the landlord, then the landlord may require the tenant to repaint it with its original colour or charge him the new paint.
- Cleaning: the tenant must return the house as it was delivered, but this point is difficult to argue if there is no evidence … Ideally, the rental agreement should include photographs of the state of the apartment when it is delivered in order to certify its cleaning and demand the return in the same state.
How we can ask for the deposit back?
It is important to sign the “documento de fin de alquiler” (document similar to a contract where it is said that the tenant hands over the apartment keys).
The document should indicate the termination of the rental agreement between both parties (landlord and tenant) and how the return of the deposit is made and any other additional security that may have been agreed.
If the deposit is not returned, you must indicate why and when it will be returned. The same happens with the additional guarantee, if any have been agreed.
Normally the landlords ask for two months of ‘deposit’, but legally they are not two months of deposit, it is a month of deposit and the other one is considered an additional guarantee.
In the case that these two months have been delivered, the end of contract document must detail if they are returned in the same act of handing over the keys of the apartment and, if something is discounted, it must indicate how much, why and attach the corresponding invoice.
If it is not returned on the day of the delivery of the keys, it must be indicated why it is not returned that day, when it will be returned, how and, of course, accompany everything that is deducted with the corresponding invoice.The end of rental document must be dated and signed by both parties.
What happens if you do not receive the deposit?
If the landlord refuses to return the deposit, the tenant must demand that he explain why and that he justifies each expense he deducts from the deposit with his corresponding invoices. If this justification does not convince the tenant then he can go to the Courts to claim his money through a Lawsuit.
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