Hello! Albert Sadykov is with you. It's time to finish the topic on ways to ensure the fulfillment of obligations. I wanted to do this a little earlier, but it happened on New Year’s Eve. In order not to waste time, I will get straight to the point.
The last pending interim measure enshrined in Sec. 23 of the Civil Code of the Russian Federation, introduced by Federal Law of March 8, 2015 No. 42-FZ. This is a security deposit.
The establishment of this method was not something revolutionary; in practice, a security deposit was used before. After all, the parties can use any security, including those not directly enshrined in the law by virtue of clause 1 of Art. 329 of the Civil Code of the Russian Federation.
Previously, courts classified this method of security differently. An advance, a deposit, has sometimes been an unacceptable pledge of funds.
The parties to the agreement also did not lag behind. Guarantee fee, deposit, security deposit - whatever you can do with your imagination.
Okay, let's move on from the lyrics to practice.
How does a security deposit work?
The tenant makes a security deposit if there is a clause about it in the lease agreement. According to the law, the tenant has no such obligation. The argument “everyone does this when they rent real estate” does not work without writing it down on paper.
In contracts, the security payment is called differently - deposit, insurance payment, guarantee payment. The essence does not change from this.
The security payment works according to the rules from Art. 381.1 of the Civil Code of the Russian Federation. If the tenant delays the rent or damages the premises, the landlord withholds the required amount without letters or courts. If there were no violations or there is something left from the payment, at the end of the lease the tenant receives the money back. The landlord does not pay interest on the use of money. The payment amount is agreed upon. Usually it is equal to the rate for one or two months.
In the lease agreement, the parties can change and clarify the rules from the law:
✍ Write down more situations when the landlord writes off money. For example, the payment goes towards fines for violation by the tenant of the shopping center operating hours. Or the payment covers the landlord’s losses in case of the tenant’s early departure;
✍ Make the security payment non-refundable;
✍ Establish that the payment is written off against the last month’s rent;
✍ Oblige the tenant to replenish the payment within a certain period if the landlord makes a write-off;
✍ Write down how long the landlord returns the money to the tenant after the end of the lease.
The following is important here. In a dispute over a security deposit, the terms in the lease agreement will apply. Even if the tenant loses this money without receiving anything in return. The parties saw what they were signing; now they cannot refuse. This is the principle of freedom of contract from Art. 421 Civil Code of the Russian Federation.
If the lessor does not return the payment after the end of the lease, he has unjust enrichment under Art. 1102 of the Civil Code of the Russian Federation. Interest can be calculated on the payment amount for each day of delay. But, most likely, the tenant will have to go to court to claim the debt and penalties.
There is a different situation. The tenant paid, but something went wrong, and he never moved into the premises. As a result, the contract was terminated and the lease did not take place. Here the landlord is obliged to return even a non-refundable deposit - Art. 453 of the Civil Code of the Russian Federation.
Procedure for returning a security deposit
Termination of the contract or conscientious fulfillment by a party of its obligations under the transaction entails the obligation of the other party to return the amount of money (or securities or other property). In this case, the implementation of the return is subject to a certain procedure, which is ideally determined by the parties in advance and is enshrined in writing in the relevant section of the contract or agreement on ensuring its execution. If the procedure is not defined or the obligated party does not make a return, the interested counterparty must send a letter of return (or a claim, depending on the specifics of the specific situation).
The further procedure is not specified at the legislative level; there is only a certain practice of civil law. After receiving a letter (claim), if there are sufficient grounds, the recipient is obliged to return the security payment within the period specified by the sender, or otherwise, if established by law. The refund is carried out according to the details specified in the letter, or those specified in the contract or agreement on the parties securing their obligations under the contract.
When the security deposit remains with the lessor
The landlord writes off money if the tenant violates the terms of the lease. It turns out that the main thing for the tenant is to carefully read the contract and not violate the obligations.
Here are the most common reasons for losing a security deposit.
Early departure from the premises
If it is written that the deposit remains as a penalty for the tenant’s unilateral refusal of the contract, so it will be. The tenant loses payment even when he didn’t break anything, but simply found a room with better traffic. Entrepreneurs can agree in this way under paragraph 3 of Art. 310 Civil Code of the Russian Federation. The Supreme Court confirmed that this is legal in paragraph 16 of Resolution No. 54.
The landlord may also not return the deposit if he asked the tenant to move out due to his fault. For example, for late rent or a fire in the premises.
However, the landlord is obliged to return the money if he kicks the tenant out. The courts support this, here is an example - case No. A41-85970/2019.
Forgot to return the premises according to the deed
When the lease ends, the tenant is obliged to move out and return the premises according to the deed. Until the act is drawn up, rent is charged for each day, even if the tenant has already removed the furniture and given the keys - Art. 622 of the Civil Code of the Russian Federation. The landlord will write off the debt from the deposit.
Damage to the premises
The tenant repairs a broken door or a broken chandelier at his own expense. It is his responsibility to make routine repairs from Art. 616 of the Civil Code of the Russian Federation. Otherwise, the lessor will record the damage in the return certificate, calculate the amount of repairs and deduct it from the deposit. For the landlord, the deposit is someone else's money, and he is unlikely to look for a cheaper contractor.
But the tenant is only responsible for repairs within the boundaries of his premises. For shared staircases, bathrooms and corridors - no. The owner is obliged to repair and wash the common property in the building - Art. 210 Civil Code of the Russian Federation.
