When you rent a house or apartment , they are often not sure about the basic rules that you must follow, as well as those that the landlord must comply with. So, in order to have a balanced contractual relationship, it is necessary that the lessee and lessor know their duties and rights well, since the main difficulties of this type of negotiation are, most of the time, related to the division of responsibilities that normally arise in the unexpected occasions.
For example: who should pay if it is necessary to paint the building? What if I need to change the plumbing or electrical wiring? Who should the collection be sent to if the condominium has decided to renovate the entire leisure area?
These rules are established by the Tenancy Law and must be obeyed even if there are informal contracts between tenant and the landlord. The clauses imposed by this law guarantee your well-being and avoid possible headaches later on.
The Tenancy Law and its importance
The Tenancy Law is a set of rules and regulations that regulate the market for residential and commercial rentals in the country. Therefore, if you are going to rent a property, first of all, it is essential to know and understand the existing duties and rights of the owner, as well as the tenant.
The lease of properties has its rules determined by what was written in the contract signed by the parties and also by Federal Law No. 8,245, of 1991, known as the Tenancy Law, which contains all the rules on the lease of urban properties in Brazil.
Even so, some changes have occurred in the legislation over the years. The first was in 2009, through Law No. 12,112. At the time, it was determined, for example, to reduce the period for the tenant to leave the property. In 2016, with the changes in the Civil Procedure Code, the Tenancy Law was changed once again, mainly with regard to eviction actions.
The question is: what is the need to be informed about all this? It is essential to have knowledge regarding the rules determined by law, including its updates, to avoid problems that can be extremely serious in the long run. In addition, the more you know about the rules, the smoother and safer the entire rental process will be.
Before finalizing a lease, it is essential that the tenant pay attention to all the duties and rights provided for by the tenant law. This is important to avoid future losses, in addition to preventing the tenant from taking responsibility for some mandatory items.
And to begin with, let’s look at the tenant’s rights. We’ll see what those rights and duties are next.
Acquire the property in perfect condition
The first precaution that belongs to the tenant is to observe the condition of the property in its minimum details during the inspection. This must be done before the contract is signed and allows the evaluation, as well as the annotation of any defects that are found.
Thus, when renting a property, be sure to check:
- the state of conservation of the floor and the ceramic wall coverings;
- the glass and the door and window joints;
- the mirrors and buttons of switches and sockets;
- the state and conservation of the structure and painting of the walls, the ceiling and the floors;
- the condition of sanitary ware, sinks and tanks;
- the functioning and quality of electrical installations;
- the hydraulic structure – open and close all taps, showers, valves and records in search of leaks and drips;
- signs of termite, rat or other pest infestations.
After the inspection is completed, a report is issued containing all the characteristics of the property, including photos of the place. Thus, the condition of the property is validated before the signature is formalized. With this act, the tenant is responsible for the commitment to preserve the place and deliver it under the same conditions as it was on the date of the visit.
It is important to note that, when occupying the property, the landlord guarantees the right to enjoy adequate housing conditions. Otherwise, you can demand from the real estate company and terminate the contract.
Have purchase preference
The owner of a property has the right to sell it at any time, even during the term of the contract, regardless of the reason. However, according to the provisions of the tenant law, the preference over the purchase option is the tenant.
It is inserted under the same circumstances prevailing in the market, on equal terms with any potential buyer. Therefore, the lessor is obliged to inform the lessee of his intention to sell the property.
This notification can be made judicially or extrajudicially, with a letter signed by the tenant. From the moment the notice is obtained, the tenant has a period of 30 days to express his intention to buy or not the property. If you accept the proposal, it will be necessary to sign a purchase commitment term, effect the payment of the signal, among other provisions.
If the lessee does not respond within the agreed term, he automatically loses the purchase preference, which can now be transferred to a sublet, if any. If not, the property can be sold to any interested buyer.
Do not pay administration fees
When the property is rented by a real estate agent, the responsibility for the payment of administrative and intermediary fees, as in the case of confirmation of the suitability of the lessee or his guarantor, rests with the owner.
The taxes, fees and the supplementary fire insurance premium are assumed by the owner of the property, unless it is agreed in the contract that these expenses will be borne by the lessee.
It is the lessee’s right to reside on the property for the agreed term. The landlord is only allowed to retake the property while the lease is in effect, if he has established an agreement with the tenant providing for this or in any event that justifies an eviction.
The tenant can return the property at any time. However, you may be subject to the payment of a contractual penalty expressly provided for, in case this return is made before the stipulated deadline.
As you can see, the tenant has a number of rights that must be taken advantage of. But it is also important to know what your duties are.
Pay rent on time
Paying rent on time is one of the tenant’s most important obligations. In addition, it may happen that there are some more obligations in the contract. In the case of renting an apartment, condominium charges and possible extra fees related to the administration of the building are expected on a recurring basis.
Generally, these added values are used to renovate and improve the condominium’s operation, which includes the maintenance of space and payment of employees. Before signing the contract, it is interesting to check the financial availability to appropriate such charges.
Another important caution is to be alert to the dates of the accounts presented. They need to belong only to the term of the contract. Previous debts need to be settled by the landlord in order to avoid problems for the new tenant, such as delinquency fines and other slips.
Take care of the property
Doing the necessary maintenance on the property is a tenant’s obligation. Without basic care, damage can occur even to the structure of the property, as in the case of infiltrations that cannot be resolved over time.
However, if there is damage prior to the current rental agreement, the tenant has the right to request repair from the landlord. When the tenant himself or third parties at his invitation cause any type of damage to the property, the repair will also be mandatory without the assistance of the owner.
It is worth remembering that each contract may contain changes in the provisions of this type of clause.
Respect the condominium rules
Analyzing the condominium rules has been part of the lease since the beginning of its term. It is the duty of the tenant to obey the rules established by the internal regulations, and this includes fines related to their non-compliance, such as the application of penalties.
Situations in which the Tenancy Law can be applied
Breach of contract
In view of the legislation, the breach of contract can be made by the tenant, as long as it has been communicated 30 days in advance. If the contract has a fixed term, it will be necessary to pay the amount of the proportional fine of termination, as discussed.
As for the property owner, the property can only be requested after the deadline in specific cases, such as demolition of the building or in situations where he, spouse or descendants have nowhere to live. Within the term of the contract, he is also subject to a fine.
Works on the property
In the case of works on the property, who is responsible? This is a very recurring question in these types of contracts. However, this is an issue foreseen in the Tenancy Law. There are basically 3 scenarios:
- repairs related to problems prior to the lease: they are the responsibility of the owner of the property and must be analyzed when closing the contract;
- repairs and breakdowns carried out by the tenant: any other repairs that have to be carried out due to wear and tear or damage caused by the tenant must be borne by the tenant. The same goes for aesthetic changes, if the contract allows them to be made;
- structural maintenance: structural damages that were not caused by the tenant are the responsibility of the property owner, such as infiltrations, faults in the electrical system, cracks, among others.
Delays and default
In the event of a delay in the payment of the rent, the owner or the institution responsible for administering the contract is entitled to charge a fine. In addition, in the event of non-payment, the landlord may request eviction from the first day of delay and eviction must occur within the granted period of up to 15 days. The same is also true if the tenant does not pay the condominium fees.
Understand how an eviction works
An eviction action process can start whenever the lessor intends to remove the lessee from his property due to breach of contract. This procedure is enshrined in the Tenancy Law and can happen in the following situations:
- non-compliance with payment: default on rent or condominium is subject to eviction order;
- termination of the employment contract: when the lease is linked to the tenant’s employment contract and it is finalized, it is possible to retake the property;
- use by the owner: the lessor may require the property to be repossessed if it is for his use, by a spouse or descendant who does not have his own residential property;
- termination of temporary lease: the owner may request eviction in cases of temporary lease where the tenant refuses to leave at the end of the term;
- death of the lessee: in situations where the tenant has no legitimate successor to assume the contract;
- permanence of sub-leaseholder: when the sub-leaseholder does not want to leave the property;
- urgent repairs to the property: when urgent repairs are necessary, where there is no possibility of the tenant remaining on the premises.
How can the tenant avoid eviction for non-payment?
The tenant may take some action when he learns of the owner’s intention to initiate an eviction. The lessee can reverse the situation if he makes a judicial deposit that includes all the amounts due. Therefore, the following should be included in the amount:
- the rentals and accessories of the lease that had expired until its effectiveness;
- contractual fines, when orderable;
- default interest.
However, this procedure can only be performed once every 24 months. Otherwise, it will not be accepted in court.
Can the landlord terminate the contract before the deadline?
Generally, no. The owner of the property also needs to fulfill the contract until the end. There are some specific cases in which he may request a return, such as: demolition of the building where the unit is located; works that will increase the built area; for residential use by him, his spouse or descendants. But these cases are only valid on long contracts.
Can the owner demand a warranty replacement or a new guarantor? In which cases?
Yes. The owner of the property has the right to demand both a new guarantor and the replacement of the guarantee, in case it occurs: the exoneration of the guarantor; death of the guarantor; absence, judicial recovery, interdiction, insolvency of the guarantor (if declared in court); expropriation or sale of the property; liquidation or closing of the guarantee fund.
Can I borrow or sublet the property I rented?
It will be necessary to request authorization from the landlord, which, if accepted, must be done in writing.
If you have subleased the property, when your contract comes to an end the sublease will also come.
Contracts made through collateral
For those who decide to rent a property using the deposit as a guarantee, it is important to know that Law No. 8245/91 guarantees that the deposit in cash, which cannot exceed the equivalent of three months’ rent, will be deposited in a savings account. At the end of the contract, the money is returned to the lessee along with the income for the period.
The refund of the corrected amount only happens when the property is delivered on time, in perfect condition and with the payment of rents on time. If this does not happen, the owner has the right to use the amount to cover these expenses. If the term is renewed, the amount will only be returned to the tenant when he leaves the property.
Advise about the change in advance under the tenancy law
Early warning has been implemented in the tenant law to avoid several headaches on moving – among them, the tenant’s lack of payment, sudden departure of tenants who leave the property unattended or with compromise of the original structure of the unit and other situations unfavorable..
In order to regularize these situations and ensure the landlord’s rights, the law requires the tenant to communicate 30 days in advance that he will leave the property. This can be done through an official statement to the real estate agent or the owner.
If the notice of change is not anticipated, the landlord may charge the tenant the amount for one month’s rent, plus charges for the lack of formality. On the other hand, prior notice is deemed to have been complied with as soon as the lessee provides the notice within the deadline.
All social and business relations need to include rules, which are necessary to maintain a balance between those involved and thus be able to guarantee their rights and fulfill their duties with the maximum necessary equality.
The rules imposed in the tenant law were created with the intention of facilitating and shortening the way in certain situations that, previously, took the sleep of the property owners and left the tenants extremely unprotected. Even so, it is advisable to observe what the law says and observe the contract before committing yourself.
Anyway, renting a property involves the responsibilities of the landlord and the lessee. It is essential to be aware of all the rules that involve the process to avoid headaches. The Tenancy Law exists precisely to clarify and determine the duties and rights of the tenant and the owner and to protect the interests of both parties. Being aware of it is the guarantee of a healthy business relationship.
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