Many people at a certain point in time there is a need to rent an apartment for permanent or temporary residence. This is usually associated with moving to a new city, creating your own family, or going on a business trip. Companies need commercial facilities for doing business, which are often rented out. If the owner of an object who officially rents out a property is selected, then a lease with legal force is necessarily concluded with him. It regulates all the nuances of cooperation between the two parties. In this case, a security payment is often required in the lease from the tenant. It is represented by a certain amount of funds, which acts as a pledge and ensures that the tenant will strictly follow the requirements of the agreement.
Security payment concept
Such a payment acts as a guarantee for the property owner, then the tenant will definitely follow the requirements of the drawn up contract. A security payment in a lease may vary in size, but usually depends on the monthly rent.
Most often, it is required if commercial property is leased, so the company acts as a tenant. The company transfers the funds to the owner of the object, and the return of the security payment under the lease agreement is made upon the expiration of the agreement or upon early termination of the contract.
The amount may not be refunded if the tenant violates any terms of the contract or if he violates the integrity of the property. Therefore, such a payment is also called a security deposit or guarantee.
How to indicate payment in the contract?
When drawing up a lease agreement, the standard document form is used. It is allowed by both parties to make amendments and paragraphs to it. A sample rental agreement can be found below.
If a security payment is applied by the property owner, then information is entered into the agreement:
- the size of this payment, moreover, the triple size of the monthly real estate fee is usually used for this;
- indicates the period during which the tenant must transfer money in cash or via bank transfer to the lessor;
- it is stated that at the expense of the funds received, the property owner can cover losses incurred through the fault of the landlord, and in addition the contract pays a lot of attention to listing these possible losses;
- information is provided that after the termination of the contract the object is inspected by the owner, after which a decision is made to return the amount received if there are no violations of the integrity of the property;
- lists cases where the lessor can use these funds;
- an opportunity is given to replenish or reduce this amount under different circumstances;
- The term for the refund is indicated upon termination of the contract.
Due to this payment, property belonging to the lessor is protected. Tenants themselves negatively relate to the security payment in the lease, since they freeze a significant amount of money at the expense of which they cannot use for a long time.
Often there are problems with a refund, since the landlord invents various problems and breaches of the contract, due to which he keeps funds.In this case, any disagreements will have to be resolved through the court.
When is it advisable to use?
A sample lease agreement allows each landlord to draw up an agreement with tenants correctly. It does not contain data on the insurance deposit, but such items can be made by the direct owner of the property, if necessary. The most common security payment in a lease is used in such situations:
- an agreement is drawn up regarding expensive real estate, which is transferred to tenants together with furniture, household or office equipment and other items that can be destroyed by users;
- the owner of the property doubts the honesty and responsibility of the tenant, therefore, such a payment acts as a guarantee that monthly payments for the intended use of the property will be transferred;
- long-term lease is being formed.
The possibility of using such a payment is agreed upon by two parties. Often, tenants do not agree with the transfer of a large amount of funds, so they do not sign an agreement.
What tasks are solved at the expense of the insurance deposit?
A security payment in an apartment rental agreement performs several tasks at once. These include:
- it is guaranteed that if the lessor’s property is stolen or destroyed, he will be able to cover his losses without having to go to court to recover the required amount from the tenant, since he will already have the money;
- can be used as a next payment if there are delays from the tenant;
- applied as a punishment in case of violation by the user of property of different clauses of the agreement.
As a security payment on the basis of Article 381.1 of the Civil Code of the Russian Federation, not only cash, but also various valuable items can act, although usually owners of different real estate prefer to deal with money.
How is the amount determined?
The possibility of applying a guarantee is agreed upon by both parties to the transaction in advance, as often tenants do not agree to transfer a large amount for storage to the owner of the property. If the parties manage to reach a compromise, the size of the security payment under the lease agreement is determined. The following nuances are taken into account:
- usually the amount is determined depending on the monthly rental payments, and often a triple fee is taken;
- any arbitrary amount is set by the owner of the object, and the lessee may not agree with such a payment, but in this case the contract is not concluded.
All questions regarding such a payment are agreed upon by the two parties, since the tenant must be warned about the presence of an insurance deposit in advance.
Payment requirements
The condition of the security payment in the lease is used more and more often, as it allows us to guarantee that the tenant is a responsible person who will carefully handle the lessor's property.
All requirements for this payment are given in Art. 381.1 Civil Code. These include the following:
- its purpose is to cover the loss of the lessor in violation of the terms of the agreement by the second party;
- if the company that used the premises did not violate the terms of the contract, then after the expiration of its validity, the required amount of funds is returned to it;
- the legislation does not contain any specific requirements for this guarantee payment;
- upon detection of various violations, the lessor can return only a certain part of the funds, since the remaining money will be directed to cover his losses;
- according to the law, both parties to the agreement independently decide on what conditions this amount will be transferred, but they must be fixed in the contract.
All conditions are prescribed in the contract.
Nuances in the absence of a guarantee
A security payment is not always used. In this case, if a landlord incurs certain losses, he will have to file a lawsuit in order to bring the tenant to justice and recover the required funds from him.
It is allowed to indicate in the contract that the funds received by the owner of the premises are counted in the lease. In this case, the security payment is not returned upon termination of the lease, since the tenant has been using the premises for the past few months without making rental payments.
How are funds returned?
The parties to the agreement themselves establish what the procedure and term for the return of the guarantee payment. The following options can be used for this:
- funds act as payment for the final months of using the premises, therefore, at this time the tenant uses the property, but does not pay any funds for it;
- the money is fully returned to the lessee;
- funds are divided between the parties to the agreement in a certain ratio or equally;
- the rights to these funds are transferred to the lessor if it is revealed that the tenant has violated the terms of the contract in various ways.
The specific option and the conditions for its application are prescribed in the contract. The refund procedure does not imply tax consequences for any participant in the process.
Are payment taxes levied?
A guarantee payment for taxation is equivalent to a deposit or a deposit. Therefore, during the term of the lease, it does not appear to be the lessor’s income or the lessee’s expenses.
If the funds are not returned for various reasons, then they are the income of the owner of the property. If the owner of the premises is a private person, then he pays personal income tax from this amount. If it is represented by a company, then income tax and VAT are transferred to the budget.
What if the landlord refuses to return the funds?
Each party must carefully study all the terms of the lease of non-residential premises. A security payment allows the owner of the property to be sure that all clauses of the agreement will be fulfilled by the other party to the transaction.
Funds are returned only if all the conditions prescribed in the contract are met. Often, tenants do not violate the rules of the agreement, timely pay a fee for the premises, provide proper care for furniture, and also carry out other mandatory actions, but the landlord for far-fetched reasons refuses to return the previously received money. In this case, the collection of a security payment under a lease is required.
Pre-trial settlement of disagreements
Initially, tenants should try to administratively resolve all disputes that have arisen. For this, a claim is drawn up in the name of the owner of the property, and the court does not accept claims if the company does not have evidence of a pre-trial attempt to resolve the issue.
The claim is made in writing and transferred to the owner of the property. To do this, you can use the mail or transfer the document in person into the hands of witnesses. The answer is given within 30 days. If it is absent or negative, then you will have to recover funds through the court.
Going to court
If with the help of the claim it is not possible to achieve the return of the payment, you will have to deal with the landlord through the court. For this, a statement of claim is correctly drawn up, in which information is entered:
- name of court;
- claims submitted by the recovery of payment from the owner of the property;
- The essential terms of the lease;
- it is indicated that the tenant in no way violated the terms of the agreement;
- prescribed when the contract expired.
A copy of the lease agreement and the pre-trial claim sent to the owner of the property is attached to the claim, which confirms that the plaintiff used the pre-trial method of settlement of disagreements.
After the claim is accepted, a date is set for the meeting at which the main evidence submitted by the parties is considered. Often, such cases are delayed for a long time, but if there is evidence from the tenant, a decision can be made to return the money to him.
If even with a court decision the property owner refuses to transfer money to the former tenant, then the bailiffs are involved in this process. They can withdraw funds from accounts or seize and sell property of a debtor.
Conclusion
A lease contract allows you to provide property for use by third parties. At the same time, property owners often require tenants to make a security payment. It guarantees that rental payments will be transferred on time and that other requirements of the agreement will not be violated.
A security payment may be returned to the lessee or distributed between the two parties. If the owner of the real estate detects various damages in the room, then he carries out repairs at the expense of the funds received from the tenant.