What is a deposit when renting an apartment - the nuances of concluding an agreement. What is a security deposit

It’s probably worth starting with the fact that civil legislation does not know the concept of “security deposit”. This definition was derived from practice and is understood as the payment by the tenant of a certain amount (in practice, most often equal to one monthly payment for the apartment), which in the event of damage to the rented property, non-payment of utility bills, etc. will be retained by the lessor to cover possible losses. In the absence of such losses, the parties have claims against each other regarding the fulfillment of obligations under the rental agreement, the “security deposit” must be returned to the tenant.

"Security deposit" and security deposit

At the same time, you should not confuse and confuse the concepts of “security deposit” and “collateral”. And although in practice these concepts are often recognized as identical, they are far from the same thing. Pledge is one of the ways to fulfill obligations. According to Art. 329, 334 of the Civil Code of the Russian Federation, the creditor (mortgagee) has a priority right over third parties to obtain fulfillment of the obligation of the debtor (mortgagor) at the expense of the pledged property if the debtor was unable to fulfill the obligation previously assumed. That is, the deposit can be paid by the tenant (mortgagor) to the lessor (creditor) to secure the fulfillment of the obligation assumed.

The most obvious example: the tenant undertakes to pay the rent for the apartment on time and at the same time transfers a certain amount as collateral to the landlord so that in case of failure to pay the rent, his obligation to pay will be fulfilled against the amount pledged. Thus, when signing a residential rental agreement, a deposit (for example, in the amount of a month's rent) may be required to guarantee payment for the tenant's last month of residence.

What can be secured by a security deposit?

A “security deposit,” in turn, is not a pledge aimed at ensuring the fulfillment of an obligation. This is a way to ensure compensation for damage if it occurs. As already noted, there is no such concept in the Civil Code of the Russian Federation, but when concluding an agreement on making a “security deposit” (either as a separate document or by including such a clause in a residential lease agreement), one must proceed from the provisions of Art. 329 of the Civil Code of the Russian Federation, according to which the fulfillment of obligations under a contract (including a rental contract) can be ensured by the following methods - a pledge, a deposit, a penalty, the property of the debtor, bank guarantees, a surety and other methods provided for by law or the contract.

We have already dealt with the deposit - using it we ensure the fulfillment of the obligation to pay rent. But the fulfillment of an obligation arising as a result of causing harm can be ensured precisely by a “security deposit”. That is, if the tenant caused damage during the period of residence in the apartment, damaged furniture and household appliances, he is obliged to compensate for the damage in accordance with Art. 1064 of the Civil Code of the Russian Federation. If he is respectable, he can do this voluntarily, determining the amount of damage together with the landlord. But if there are disagreements about the amount or other misunderstandings, the situation will have to be resolved only through the court. Registration and payment of a “security deposit”, as a certain amount that will be withheld by the landlord in the event of damage by the tenant, allows you to avoid these troubles.

Main controversial issues and ways to resolve them related to the security deposit

Summarize. In practice, when concluding a rental agreement for residential premises, the concepts of security deposit, security deposit and rent payment for the last month of residence are often confused (it should be noted that there is no such concept in jurisprudence - this is nothing more than an advance payment). It is most legally correct to provide for several independent clauses in the contract: about the deposit - with its help, payment for the last month of the tenant’s stay is guaranteed (if the last month is paid in the usual manner, it is returned); about the security deposit - if there is no damage to the property of the landlord or third parties, it must be returned to the tenant in full; prepayment for the last month - a one-time payment of an amount equal to the amount of rent for several months.

Most often, if a deposit is paid, then the last month is not paid, sacrificing the deposit. In this case, there is no violation of the rights of the parties under the contract.

But if the contract only provides for a deposit that was sacrificed to pay for the last month, then with what funds will the damage caused, unpaid utility bills, Internet, telephone, etc. be compensated? Accordingly, it is most reasonable to provide for both of these legal institutions in the rental agreement. But it is obvious that paying several amounts at once, including the real estate commission, may simply be unaffordable for many landlords, and a compromise must be sought in these matters.

Renting residential premises is the most popular type of relationship that arises between individuals. At first glance, it seems that if you make monthly payments on time, you can live in peace and not deny yourself anything. However, the owner has certain risks that he is exposed to when renting out real estate. Such risks include damage to its property or rendering the entire premises unusable.

What should an owner do to protect himself from possible fraud? To do this, many people use a security deposit, often confusing it with a mortgage on real estate. What is the difference between these concepts, how to properly protect yourself?

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What is a security deposit when renting an apartment?

The concept of “security deposit” is in no way regulated by various regulations. It can be assumed that it follows from business customs that are accepted in a particular field of activity.

It represents a certain amount, a kind of security deposit, which the landlord asks from the tenant when concluding the contract.

DThis amount may be required in case of:

Causing any significant damage to the rental premises.
Damage to furniture.
Destruction of household appliances.

Most often, the amount of such a payment is equal to one monthly payment for an apartment.

Difference between deposit and collateral

Quite often, landlords confuse these two concepts, but in reality it turns out that the essence of collateral and deposit are completely different.

The deposit is a certain amount that the future tenant must pay as a reservation for the intention to rent a specific apartment. However, in reality this method is no longer popular, since a security deposit is now used instead.
The deposit is usually paid directly during the signing procedure.
The deposit is equal to the cost of living in this apartment for one month. It is for this reason that it can be used as payment for the last month of stay. You cannot do this with a security deposit.
The deposit represents a certain amount of insurance that can be used in the event of damage to the property or the entire apartment as a whole.
The deposit amount cannot be used to pay debts for utility services, as well as for the provision of a telephone line.

However, people still consider the concept of collateral and security deposit to be something identical.

The main nuances of concluding a rental agreement

The current legislation does not in any way regulate the issue of the procedure for making such a deposit. It is for this reason that no separate document is required when:

Making a deposit.
Its use.
Refund the entire amount.

All these conditions must be specified in the drawn up lease agreement between the two parties.

From the point of view of legislation, as well as common sense, it is worth noting that such an agreement is concluded as a certain guarantee to both parties that their rights and obligations will be reliably protected. In addition, thanks to the lease agreement, both the tenant and the landlord can protect their interests if the terms of the document are not fulfilled in good faith.

In order to comply with all the requirements stipulated by law in the field of registration and conclusion of a lease agreement, you will need:

Conclude this document in writing.
Add a note in one of the paragraphs indicating that the employer has made a certain guarantee payment. The following should be specified:
- Exact amount.
- Risks covered by such payment.
- Refund procedure.
- The deadline for such a return.
- Methodology for determining harm.
- The procedure for resolving emerging issues and disputes between the parties.
The fact that the lessor received the established amount is necessary record in writing. To do this, you can limit yourself to only a receipt. However, to carry out such a procedure, it is best to have two witnesses present who can confirm that the money was indeed received.
If the employer is a legal entity, you will need submit a cash document, which will confirm the receipt of funds.

Cases when a contract can be concluded without a security deposit

There are several ways you can conclude an agreement without using a deposit or so that afterreceive the full amount:

If there is a rental of real estate in which there are only bare walls, without any furniture and expensive repairs, then the landlord will not take a security deposit, since he has nothing to risk in such a situation.
In other situations, it will not be at all profitable for the apartment owner to rent out his property to an outsider, so he is required to pay a certain amount specified by him.
To prevent the landlord from pinning all the debts for previous tenants on the new tenant, before renting, you need to ask him to present a certificate from the local management company stating that there are no payment arrears in this apartment.
In addition, you can take simple photographs of the furniture and the entire furnishings, in which you can see all the cracks that existed at the time of signing the contract. In such a situation, the owner will not be able to insist on compensation for such damage, since it was caused before occupancy.
If it is not possible to pay the entire specified deposit amount at once, you can agree with your landlord to spread the insurance over several months. In such a situation, information about the deposit provided will be indicated in the contract only after the owner has received the entire required amount.
If the tenant does not have any complaints when renting out the apartment, you can agree with him that this insurance will be used as payment for the last month of residence.
It is worth remembering that information about the deposit must be indicated in the contract. Otherwise, if it is terminated, you may not receive a refund of the insurance.

Why don't tenants try to pay it?

The main fear that most tenants have when paying out such insurance is that they may simply not get their money back. Most landlords tend to keep this money to cover the natural wear and tear of their premises.

According to the law, this cannot be done. Therefore, if the landlord for some reason refuses to return the deposit paid, and there is no damage due to the fault of the tenant, a refund should be demanded, citing the law. And if an agreement was concluded between the parties, you should go to court. Quite often, when renting out an apartment, the owners do not formally register the property so as not to pay taxes. Then going to court will be undesirable for him, and he can give away the insurance without contacting the relevant authorities.

Another common reason why residents do not want to pay a deposit is the lack of extra funds. In such a situation, you can agree with the landlord about installments for this particular payment.

How is insurance refunded?

A fairly common mistake is that the contract states that the payment received can be used as monthly rent for the last month of occupancy.
For the landlord, such a clause is undesirable, since it deprives him of the opportunity to use the funds received as compensation for damage to furniture or the entire condition of the apartment in general. In addition to this, there is also another rather important point, which landlords often keep silent about. According to the code, the item must be returned to the owner in good condition
- , but taking into account normal wear and tear. It is for this reason that the presence of such wear and tear is not a basis for collecting the insurance paid. Examples include the following situations:
- The curtains were faded in the sun.
- Carpeting has changed all its characteristics due to prolonged use.

All these situations are not grounds for using the insurance provided.

Security deposit upon renting out the apartment.

Tatyana Mamonova - in Moscow.

8-903-170-13-84 Rent of apartments, rooms.

Taking a security deposit when renting out an apartment is a common measure to protect your interests and property. The insurance premium is intended to ensure the obligations assumed by residents under the rental agreement.

For some owners, renting out an apartment is an additional, and for many, their only income. And like any business in which we invest, rent should only generate income and preferably constantly. Well, at least we hope so. When moving in, the parties sign long-term obligations. The owner relies on money from rent, against which, in turn, he can also take on financial obligations. Paying off a loan, for example. Like any extra costs, a damaged refrigerator, or a sudden move-out of tenants, it’s not included in our plans. In this regard, many owners are wondering how to protect themselves from possible negative consequences.

The sum insured is intended to provide some kind of safety net. It’s rare that a tenant does not leave behind traces of their stay in the apartment - damaged furniture, appliances, cosmetic defects, utility debts.

In the event of early termination of the contract, the deposit is intended to eliminate losses resulting from the idle time of the apartment or to reduce them to a minimum, so that the owner or his representative - agent has the opportunity to quickly respond to changing circumstances and take measures to find new tenants.

The contract must include a clause according to which residents are obliged to notify in advance, no later than 30 or 14 calendar days, of the intended vacancy of the apartment. In case of failure to comply with this provision, the security deposit must be withheld as compensation for possible lost profits as a result of forced downtime of the apartment.

Also, without fail, the contract must include an inventory of the property listing furniture and household appliances, indicating the serial number.

The deposit has two main tasks - insurance in case of an unexpected break in contractual relations and ensuring the safety of property left in the apartment.

Nothing disciplines people more than the possibility of losing money. Often, renting out an apartment is a subtle psychological game with jewelry settings. He sits down to play in which it is better to have this trump card up his sleeve - a security deposit.

How to properly rent out an apartment.

The phrase that flies around the world is “First is Last.” Everyone is talking, but not many know what. The owners know what they SHOULD take. But they don’t understand what to take for, how to take it. Most owners generally do not see the difference between these two different concepts and merge them together; others often confuse them.

In the classic scenario, tenants, when signing a rental agreement, must prepay a month in advance and pay a security deposit in the amount of the monthly rental rate. The owner puts the security deposit in a distant drawer and waits in the wings. If they wish to move out of the apartment, tenants are required to notify the owner in advance, 30 calendar days in advance, about vacating the living space, and pay for the last month of their stay as usual. At the time of eviction, the owner makes a full settlement with them, using the amount of the security deposit as an instrument. If all property is in order, all household appliances are working, no damage has been caused to repairs, and there are no arrears in utility bills, then the security deposit is refundable in full. If there are any shortcomings in cosmetics, equipment, or utilities, the amount of costs is agreed upon and deducted from the insurance premium.

The most common misconception is when, instead of returning the insurance amount or using it to make full mutual settlements, the owners offer the tenants to live out the last month using the insurance deposit. Instead of postponing insurance, in 90% of cases, this amount is not found in the hands of the owners - the money is often spent long ago. And if damage is discovered during the residents’ stay, all repair costs fall on the shoulders of the apartment owner. And they have already pulled out their trump card from the deck.

Historically, the huge demand for housing has spoiled Muscovites and developed in them a purely consumerist attitude and the habit of “making the most” of renting out an apartment without investing anything. If only they paid, and more. And what happens next is not important. Well, how could it be otherwise when the owner knew that he would rent out the apartment without any renovations. Such conditions did not stimulate the owner to make unnecessary movements. They didn't care what condition the apartment was in, who lived there, or what was happening there. And the apartments, as a result of this attitude, deteriorated and slowly turned into a barn. Nobody, of course, undertakes to judge - everyone spins around as best they can. But the times when apartments were rented out in any condition for big money are gone forever. Apartments with old furniture, which were renovated for the first and last time when the house was rented out, do not impress most tenants. Now, the market is forcing owners to devote more time to their real estate, to offer better conditions both in terms of condition and payment, in order to attract tenants. And more and more often, owners are thinking about how to protect their investments and leave the apartment in its original condition.

Security deposit and security deposit, payment for the last month are not the same thing, these are three different concepts.

Last month's payment is prepayment for the last month of stay. In turn, prepayment may be charged several months in advance. Unlike the last month's payment, the security deposit and the amount are refundable.

The deposit is paid by the tenant to the landlord as security for the undertaken obligation to pay the monthly rent. Let me give you an example. Residents undertake to pay the monthly rent for the apartment on time and at the same time transfer a certain amount as collateral to the owner so that in case of failure to pay the rent, their payment obligation will be fulfilled against the amount pledged as collateral. When signing a residential lease agreement, it may be necessary to pay a deposit (usually equal to the monthly rental rate) in order to guarantee payment for the last month of the tenant's stay.

When renting out an apartment, the owner must be clearly aware of why he is taking the second amount from the tenants. Is this money as confirmation of intentions to live in the apartment for at least one last month without claims to the condition and property? Or, after all, is this insurance against property damage and premature breakup of relationships?

Depositing several amounts at once, and even taking into account the agent’s commission, aimed at different tasks, seems hardly possible. Since for many employers this is simply an unaffordable amount. So here you have to choose. What is more important - income or the condition of the apartment?

Substituting these two different concepts in mind and in practice sometimes entails irreversible consequences. This is the main, most common, gross strategic mistake.

In what cases should a security deposit be charged?

The security deposit is worth taking in all cases where there is something to take for it. Even the presence of any repairs and a minimum set of household appliances is a good reason for charging a deposit.

In cases where the apartment is turnkey - renovated, with all household appliances and furniture necessary for living, a security deposit must be taken. In cases where the apartment is “destroyed”, in average condition, where there is nothing special to remove or break, I would not recommend trying to extract the insurance amount from the tenants. Such apartments are already poorly rented out, but they will also be burdened by the burden of the deposit. Agree, not very attractive conditions. In any case, even if a decision is made not to take, in full or in part, a deposit from residents, I would still recommend collecting some symbolic amount, for example, in case of debt on utility bills.

How much is the security deposit required when renting out an apartment?

The security deposit is usually equal to the monthly rental rate. Let me explain, if you rent out an apartment for 30 thousand rubles a month, then the amount of the security deposit is also 30. The payment procedure is generally accepted market conditions. The security deposit can be paid by residents in the entire amount immediately upon signing the contract, or the payment of this amount can be “split” into 2, less often 3 months. There are cases, in apartments with expensive renovations and appliances, when the deposit is not split, there are places where it is taken in the 2nd amount.

About the return of the security deposit.

If all the essential terms of the agreement are fulfilled by the tenants - everything is in place, nothing is damaged, there are no utility debts, if the tenants have complied with the clause according to which they are obliged to notify the apartment owner in advance about vacating the premises, no later than 30 (or 14) calendar days , only then will the security deposit be refunded in full.

How to assess damage caused to an apartment.

In such cases, an amicable agreement is usually reached - the apartment owners, together with the residents, assess the damage, come to an agreement on the amount of compensation and deduct it from the deposit. Often apartment owners do not come to a common denominator with tenants regarding the amount of damage. Well, of course, in the eyes of the residents, all the damage will seem like trifles, but in the eyes of the owner - significant damage. In controversial situations, it is worth resorting to the help of third parties. For example, if the electric stove is damaged or the ceiling is dirty, the technician will determine the possibility and amount of repairs.

There are cases when the amount of damage caused to the apartment is significantly higher than the amount of the deposit. Under these circumstances, if the property was not insured, all costs will fall on the shoulders of the apartment owner. You can, of course, go to court to protect your interests, but not many people decide to take such a step. Since it entails a number of specific consequences. To prevent problems from accumulating and growing like a snowball, I strongly recommend visiting the apartment with inspections. Once a month will be enough. If any deficiencies are found, request immediate correction and repair. Then the apartment will always be in perfect order.

Photo or video recording will help confirm the damage caused to the apartment; in extreme cases, involving third parties (agent, neighbors, police) for witnessing, with the drawing up of an appropriate report.

Security deposit - what is it?

The security deposit is not a deposit and does not represent payment for the last month of rent. This instrument is called differently: security deposit, security payment. But there are significant differences between a security deposit and an advance payment or security deposit, and if this difference is not understood, there may be conflicts at the end of the lease relationship.

The essence of the security deposit is that the tenant credits the landlord's account with the amount agreed upon by the parties. This payment provides coverage for possible damage to the rental property. The security deposit is a refundable amount; it cannot be used as payment for the last month and is not related to the rental deposit.

This fee covers damage to the property if such damage is discovered at the end of the annual contract. When drawing up an acceptance certificate, the owner inspects the apartment, determining whether everything is in order with the furniture and the state of repairs, with payment of telephone bills, etc. At the same time, the necessary costs for bringing the apartment to its original form are estimated. These costs are deducted from the amount of the security deposit, and the remainder of the amount is returned to the tenant by the owner. If the property was not damaged and there was no damage, the full amount of the security deposit is returned to the tenant. The purpose of this deposit is to protect the interests of the property owner.

This type of payment can be called a security payment: with its help, the tenant’s obligation to carefully handle the property is ensured. Calculating the amount of damage is a matter for the owner, who does not always accurately estimate losses. It is common practice to charge one month's rent for damage.