What is a deposit under a rental agreement? Is a deposit required when renting an apartment from the owner? Legal regulation of insurance premium

What is a rental deposit? Security deposit, aka security deposit implies a sum of money approved by both parties to the transaction, contributed by the tenant as a guarantee of compensation for possible losses in the event property damage landlord.

In other words, the insurance deposit when renting out housing is insurance for hypothetical damage, which the tenant can bring to the owner in the event of, for example, flooding of neighbors, breakdown of furniture, equipment, etc.

If, at the end of the rental contract, the premises are transferred to the landlord in its original form, the deposit refunded in full.

If, after the return acceptance and delivery of the keys, a discrepancy with the original condition is revealed, the lessor has the right to withhold the required amounts from the deposit to cover expenses.

Definition of collateral

This is the amount when renting out a property that the tenant pays as guarantee of your intention to rent housing until a certain period (usually until the end of the contract, if any).

Often verbal agreements include the wording “first and last month of rent”, that is, the tenant pays 2 monthly living expenses, one of which is payment for the current month, and the second is collateral for his intentions to rent housing for at least another month.

Unlike security deposit The deposit covers only the cost of delivery and is not intended to compensate for losses in case of damage to property.

However, by mutual agreement of the parties, at the end of the rental period, the security deposit can be used to reimburse the cost of repairs/cleaning (for example, if tenants leave earlier than the period stipulated in the contract), just as the insurance deposit can be used to payment for the last month of stay.

How to get this money back for renting out an apartment? Its amount, as well as the amount of the security deposit, is kept by the lessor until the end of the contract. These types of security deposits do not in any way relate to the commission for the services of an agency/private realtor.

Commission– this is the money that is paid to the intermediary and is not returned at the end of the rental period, unlike the insurance deposit.

Find out what it includes from our article.

Purpose

Is a security deposit required when renting out a residential property?

The feasibility of making an insurance contribution most often depends on estimated value of housing which is for rent.

Typically, a security deposit is requested when renting out housing with European-quality renovation and the presence of expensive equipment. Find out on our website how to rent a home with furniture and appliances.

For empty or “killed” apartments the deposit is usually don't require, in contrast to the deposit, which is tied not to the condition of the housing, but to the cost of monthly rent.

The deposit amount is set personally by the owner. Often, in order to reduce the financial burden on the tenant, the owners agree to pay the deposit amount in installments during the first 2-3 months of residence.

In legislation no separate provision is provided, which defines the concept and purpose of a security deposit for rental housing. This type of transaction insurance can be indirectly attributed to the contractual type of fulfillment of obligations in accordance with. Art. 329 of the Civil Code of the Russian Federation “Methods of fulfilling obligations.”

Civil Code of the Russian Federation Article 329. Methods of ensuring the fulfillment of obligations

Fulfillment of obligations may be ensured by a penalty, a pledge, retention of the debtor's property, a surety, an independent guarantee, a pledge, a security deposit and other methods provided for by law or contract.
The invalidity of an agreement to ensure the fulfillment of an obligation does not entail the invalidity of the agreement from which the main obligation arose.
If the agreement from which the main obligation arose is invalid, the obligations associated with the consequences of such invalidity to return the property received under the main obligation are considered secured.
Termination of the main obligation entails the termination of the obligation securing it, unless otherwise provided by law or contract.

What does a rental contribution mean? Based on the meaning of the law, the security deposit is equal to other methods ensuring the fulfillment of obligations, such as surety, pledge, retention of the debtor’s property, etc.

However, the concept of “security deposit” does not appear in the text itself, which often becomes the cornerstone in disputes regarding the legality/illegality of withholding the deposit to cover losses, etc.

Is the amount refunded?

Is the deposit refunded when renting a property? As mentioned above, if the tenant conscientiously fulfills his obligations specified in the contract (timely payment of monthly payments, safety of property, etc.), the landlord obliged to return it in full.

The most common argument motivating the non-return of money is the divergence of views between the owner and the tenant on the condition of the housing at the end of the rental period.

There is such a thing as depreciation or normal wear and tear rental property - for example, loose hinges, washed floorboards and other small parts. But a broken window or a burnt sofa cannot be attributed to natural wear and tear.

If the owner explains the non-return of the deposit by the presence of losses related to normal wear and tear, there is every reason to sue him by filing a claim for unjust enrichment.

You can learn about this from our article.

How to refuse payment?

To require a security deposit or not - personal decision of the landlord. But the owner is obliged to warn the potential tenant about this side of the deal even before concluding the contract, so that the latter can calculate his financial capabilities.

If the tenant presents a “surprise”, announcing the need to pay it after moving in, the tenant has the right to refuse- after all, the primary contract did not provide for the presence of insurance amounts. To protect yourself from such “swings”, it is advisable to clarify the issue of the security deposit at the stage of inspecting the property.

Finally, let us remind you that the security deposit and security deposit are primarily safety measures, rather than additional ways to make money as a tenant.

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First of all, the security deposit is not a deposit or payment for the last month of rent. This instrument does have other names: for example, security deposit, security deposit. But it is important to understand that the differences between a deposit and an advance payment are significant, and failure to understand this difference can lead to conflicts at the end of the rental relationship.

The essence of the security deposit is that the tenant credits the landlord's account with an amount agreed upon by both parties (often it is set at an amount equal to a month's rent, hence the confusion) to ensure compensation for possible damage to the rented property.

I’ll tell you in more detail: the annual contract has ended, the tenant has paid for the last month, the procedure for the return acceptance and transfer of the apartment is taking place, and here the security deposit, which was kept by the owner of the property, comes up. During the acceptance certificate, the owner inspects the apartment. The owner clarifies whether everything is in order with furniture, repairs, telephone bills, etc.” The amount of possible damage, restoration repairs, and other costs to bring the apartment to its original form is assessed. After deducting these costs, the owner must return the amount of the security deposit to the tenant. If no damage was caused to the property, the tenant will be refunded full amount security deposit. Thus, the main purpose of the security deposit is to protect the interests of the property owner.

“It is more correct to call this type of payment a security payment. Its meaning is to ensure the obligations of the tenant to carefully handle the property of the landlord, says Oleg Seregin, Deputy General Director of the Academy of Sciences DOKI. - It is charged in case of damage to the property of the renter. Refundable or non-refundable at the end of the hire period. The payment amount is calculated depending on the cost of furniture and household appliances. Sometimes they charge more, sometimes they charge less. Typically charged at 100% of the monthly rental fee.”

What is the difference between a security deposit and a security deposit?

A deposit or deposit was originally the amount paid by a potential tenant to confirm his obligation to rent a given apartment before a certain date (a kind of “reservation”). In this understanding, security deposits do not currently apply to rentals, with rare exceptions. The wording “deposit - 1 month,” which most often appears in advertisements for renting inexpensive housing, speaks specifically about a security deposit. “A security deposit when renting an apartment and a deposit when renting today are different names for the same concept. The security deposit is taken at the time of concluding the rental agreement and, as a rule, is equal to the monthly rental cost. The security deposit is never accepted as payment for the last month of residence, it is not payment, it is a reserved amount of money in case of possible damage to the owner’s property, unpaid utility and telephone bills, and so on,” says the first deputy director of the Miel-Arenda company. Maria Zhukova.

In a word, there are two meanings for the concept of a deposit: one of them, outdated, is a deposit that is issued before the conclusion of a lease agreement, and the second is a security payment. By the way, confusion exists not only with the concept of collateral: the concept of “security deposit” itself does not exist in the legislation. This leads to disputes on various issues, which can be divided into:

* Disputes about the legality of using a security deposit to: secure obligations to pay rent and obligations to compensate for damage to leased property, as well as compensation for early termination of the lease agreement.
* Disputes about the legality of taxation of a security deposit (there is no generally accepted point of view on this matter, but it is more often believed that the deposit is not subject to personal income tax, since it is not income. Regarding the payment of VAT on the amount of income tax received, decisions are made individually, based on the specific situation ).

The use of the term “deposit” is quite acceptable, as well as the term “security deposit”, if we are talking about a security payment.

Can the security deposit only be used to cover damages when the tenant moves out?
In some cases (specified in the rental/lease agreement), the security deposit can be used to fulfill obligations to pay rent and other obligations assumed by the tenant under the contract. A security deposit, in its essence, is a contractual method of ensuring the fulfillment of obligations, and obligations, according to the Civil Code, arise from the contract, as a result of damage and from other reasons. The parties have the right to establish specific types of obligations in the contract (including obligations to pay rent or rental fees, obligations resulting from causing damage to the premises, etc.), for which a security deposit can be used, notes Alla Lyagina, director of the legal department of IntermarkSavills.

The security deposit and the prepayment of the last month are completely different things, but if it is specified in the contract, the deposit can be used to pay for the last month. Landlords are not always willing to accept this option, since it turns out that the tenants’ last month of residence is not financially secure, and all breakdowns and violations in the event of conflicting behavior of the tenant will have to be corrected by the landlord at his own expense. However, if relationships with tenants have been problem-free for a year (or more), most likely they will not have the desire to “recoup” in the last month.

Is it possible to save on a security deposit?

It is not profitable for the landlord to do without a security payment, since it protects his property from damage. Based on today's practice, a deposit, more often called a deposit in the economy class segment, is mandatory in most cases. “An exception may be a room that is rented out by landlords living in the same apartment. This is explained by the fact that the owner has the opportunity to monitor the safety of the property and timely payment of all bills,” notes Elena Merkulenkova, head of the Park of Culture department of the Inkom-Real Estate company.

“As a rule, a security deposit is not collected if the apartment is “destroyed”; in general, the landlord always establishes a requirement for payment of this amount. Both the landlord and the tenant need to establish in the contract the procedure for withholding payment (in case something happens), the procedure for determining damage, and the procedure for return, including the return period. As a rule, the payment is returned on the day the rental period ends,” notes Oleg Seregin.

The deposit is issued upon conclusion of the rental/lease agreement. An act of acceptance and transfer of property is drawn up, which lists all property (furniture, plumbing, household appliances etc.) and its condition, defects are recorded. You can photograph the apartment and transfer a set of photographs to each party (if the contract is concluded through an agency, this is most likely included in the standard package). It makes sense for the tenant to check in advance whether there are any debts on utility bills and other payments in the rented apartment.

As for savings, the deposit is often split (paid to the landlord by the tenants within 2-3 months), the deadline and procedure for making this payment are indicated in the contract: when it is paid, in what shares (if in parts), and within what time frame each part is paid, etc. p. For convenience, you can include in the contract a clause stating that, with the written consent of the landlord, the security deposit can be used to pay for the last month. The basis for returning the deposit to the tenant will be the agreement and signing of the act of return of property by the parties.

Anna Cooper Owner

Here it should be understood that the owner, when renting out an apartment, encounters irresponsible citizens who either steal or damage property without paying for material damage, and then simply move out, leaving the rented apartment in a dilapidated state. And repairs and purchasing interior items in our time are very expensive pleasures! And besides, if the tenant of the apartment simply moves out without warning, the deposit will remain with the owner, covering the month-long search for a new tenant. Of course, a vacant apartment rarely sits idle, because the demand for renting an apartment from the owner in major cities quite large (regardless of the season).

However, on the other hand, there are cases when the owner of a rental apartment can be expected to act beyond the scope of an honest relationship. For example, sometimes the clauses in the agreement do not seem entirely reasonable, according to which some owners fine tenants or generally constantly come up with some new methods of “punishment”. You rent an apartment from the owner, you save money, but you don’t expect “this kind of” attitude from the very beginning. Judge for yourself, there are apartment owners who are not allowed to go online, wear tight clothes, open windows, fry, cook, go out onto the balcony, and can only use the washing machine twice a week. If you violate any of the points, you will face a fine or eviction. Of course, you did not expect such “rigidity” in relationships when renting an apartment from this owner. Of course, such requirements are very rare, perhaps they were some kind of unforeseen expenses of the owner in the past, but nevertheless, such situations in most cases only cause inconvenience, both for the resident and for the owner of the property in the future.

On the other hand, you are renting an apartment directly from the owner and the deposit disciplines the tenant in a certain way. Knowing that the tenant has left a deposit, he will be more vigilant and careful in living in rented apartment. Also, in the apartment rental agreement between the owner and the tenant, you can specify the amount of the deposit, the conditions for its return and non-return, a complete act of transfer of property with full description every scratch and damage, for greater peace of mind on both sides.

The only thing I would like to emphasize here is the conditions for the return of the deposit.

When renting out an apartment, the owners stipulate that the deposit is returned if the tenant stays permanently for 3-4 months and if the entire property is intact. There are also agreements under which the tenant does not have the right to leave the apartment before 11 months. If he leaves earlier, the deposit is retained by the owner immediately. Let's imagine this situation - you still rented a similar apartment from the owner. Now, you need to live in the apartment for 11 months. What if the situation changes and you, for example, have to move to another city? In this case, you lose the deposit that you gave to the owner. In this case, some guarantees are also required on the part of the lessor, and it would be quite good if they are drawn up like this. If the departure occurs at the initiative of the landlord, then he warns the tenant a month in advance and pays both the deposit itself and the cost of another month of accommodation in addition. In this case, if the tenant really plans to live for the full 11 months, he can take advantage of such a guarantee and the contract will be very convenient for him in this case. By the way, we have collected the rules for concluding a contract and possible errors in contracts in the article

Here, of course, in the end, it’s up to you to choose, because only the potential “tenant” can agree on the amount of the deposit, the timing of payments, the conditions for its issuance or non-issuance, all the nuances relating to the deposit amount, and the responsibility for the property transferred under the contract. The most important thing is to assess the possible consequences of the decisions made. Believe me, it is not so difficult to rent an apartment from the owner. It is enough to take into account the above recommendations and be more attentive to the process itself.

An important point is that you must be extremely careful when talking with the owner. Sometimes, when renting out an apartment, owners act dishonestly and do not return the deposit even if all the property of the rented apartment is intact. The tenant's task is to understand what the landlord is like; it's easy to determine - often just look at him (just as he views you as a future tenant). You can ask him a few questions, ask the landlord in more detail about previous deposits, tenants, payments. In most cases, it will immediately become clear whether the landlord will return the deposit or not and whether fraud is possible in this place.

You need to remember that not only the signing of the contract, but also the very process of renting an apartment directly from the owner must be treated with full responsibility, and even more so, if you suddenly decide to move out, then inform the owner in advance, that’s why the deposit exists (to cover similar risks).

Remember! Each amount and terms of the deposit must be included in the contract (there is a separate column for this), then, provided that the seizure of the deposit from the tenant is unlawful, the deposit will be returned in full by court decision.

In rental advertisements, we often see wording that seems to clearly imply additional costs for the tenant: “deposit – one month’s payment”, “payment – first and last month”, “deposit”... Anyone who does not want to delve into the legal intricacies can it seems that these are just different names for the same process - the relatively fair taking of money from the tenant. But let's take it in order. Let's start with the security deposit.

What is a security deposit and why is it needed?

“When concluding a rental transaction and instructing apartment owners, we always say that the security deposit is a kind of refundable amount that in no way can be used as payment for the last month and is in no way related to the rental deposit,” says Vadim Lamin, head of luxury apartment rental department at Penny Lane Realty. – A security deposit is a certain contribution equal to one rental rate, which provides comfortable conditions for the owner of the property in the event of possible damage to the property of the apartment by the tenant. I’ll tell you in more detail: the annual contract has ended, the tenant has paid for the last month, the procedure for the return acceptance and transfer of the apartment is taking place, and here the security deposit, which was kept by the owner of the property, comes up. During the acceptance certificate, the owner inspects the apartment. The owner clarifies whether everything is in order with furniture, repairs, telephone bills, etc.” The amount of possible damage, restoration repairs, and other costs to bring the apartment to its original form is assessed. After deducting these costs, the owner must return the amount of the security deposit to the tenant. If no damage was caused to the property, the tenant will be refunded the full amount of the security deposit. Thus, the main purpose of the security deposit is to protect the interests of the property owner.

“It is more correct to call this type of payment a security payment. Its meaning is to ensure the tenant’s obligations to carefully handle the landlord’s property,” says Oleg Seregin, Deputy General Director of the Academy of Sciences DOKI. – It is charged in case of damage to the property of the renter. Refundable or non-refundable at the end of the hire period. The payment amount is calculated depending on the cost of furniture and household appliances. Sometimes they charge more, sometimes they charge less. Typically charged at 100% of the monthly rental fee.”

What is the difference between a security deposit and a security deposit?

The security deposit is taken at the time of concluding the rental agreement and, as a rule, is equal to the monthly rental cost. The security deposit is never accepted as payment for the last month of residence, it is not payment, it is a reserved amount of money in case of possible damage to the owner’s property, unpaid utility and telephone bills, and so on,” says First Deputy Director of the MIEL-Arenda company Maria Zhukova.

In a word, there are two meanings for the concept of collateral: one of them, outdated, is a deposit that is issued before the conclusion of a lease agreement, and the second is a security payment. By the way, confusion exists not only with the concept of collateral: the concept of “security deposit” itself does not exist in the legislation. This leads to disputes on various issues, which can be divided into:

Disputes about the legality of using a security deposit to: secure obligations to pay rent and obligations to compensate for damage to leased property, as well as to compensate for early termination of a lease agreement.
Disputes about the legality of taxation of a security deposit (there is no generally accepted point of view on this matter, but it is more often believed that the deposit is not subject to personal income tax, since it is not income. Regarding the payment of VAT on the amount of income tax received, decisions are made individually, based on the specific situation) .

The use of the term “deposit” is quite acceptable, as well as the term “security deposit”, if we are talking about a security payment.

Can the security deposit only be used to cover damages when the tenant moves out?

In some cases (specified in the rental/lease agreement), the security deposit can be used to fulfill obligations to pay rent and other obligations assumed by the tenant under the contract. A security deposit, in its essence, is a contractual method of ensuring the fulfillment of obligations, and obligations, according to the Civil Code, arise from the contract, as a result of damage and from other reasons. The parties have the right to establish specific types of obligations in the contract (including obligations to pay rent or rental fees, obligations resulting from causing damage to the premises, etc.), for which a security deposit can be used, notes Alla Lyagina, director of the legal department of IntermarkSavills.

The security deposit and the prepayment of the last month are completely different things, but if specified in the contract, the deposit can be used to pay for the last month. Landlords are not always willing to accept this option, since it turns out that the tenants’ last month of residence is not financially secure, and all breakdowns and violations in the event of conflicting behavior of the tenant will have to be corrected by the landlord at his own expense. However, if relationships with tenants have been problem-free for a year (or more), most likely they will not have the desire to “recoup” in the last month.

Is it possible to save on a security deposit?

The deposit is issued upon conclusion of the rental/lease agreement. An act of acceptance and transfer of property is drawn up, which lists all the property (furniture, plumbing fixtures, household appliances, etc.) and its condition, and records defects. You can photograph the apartment and transfer a set of photographs to each party (if the contract is concluded through an agency, this is most likely included in the standard package). It makes sense for the tenant to check in advance whether there are any debts on utility bills and other payments in the rented apartment.

Landlords have a golden rule: when renting out an apartment, take not only the first month’s rent, but also some cash as security funds, the so-called “security deposit”. For the owner of the apartment, of course, depositing the amount serves as a kind of insurance, but for the tenant, sometimes it is simply a huge amount.

The tenant moves into a finished apartment, with furniture and household appliances, and the amount of property can reach large sums, and all this wealth has to be given to practically a stranger, and no one knows what he can do with all this.

A security deposit can protect you from all these troubles, although its amount does not cover the total cost of the property.

The apartment owner hopes that the funds paid will force the tenant to handle the apartment carefully. And if he wants to get the insurance amount back, he will not create a row in the apartment and spoil appearance and technology.

Why is a security deposit necessary?

The deposit is needed, first of all, to protect the rental property from negative phenomena, for example, various damage to property, etc. He acts as a guarantor of the fulfillment of all conditions stipulated in the contract. The deposit has various names: deposit amount, guarantee payment, etc.

How to return the insurance amount

To receive a refund, these conditions must be specified in the rental agreement. If the owner receives back what he rented out unchanged, then the deposit is returned to the tenant. But this practically never happens, because after living for several years, the natural wear and tear of the home occurs.

What's the difference

Some tenants sometimes confuse these concepts, but the legal essence of a security deposit and a security deposit are completely different.

The deposit is a certain amount, which is paid by the future tenant for the intention to rent an apartment; in another way, this can be called a kind of reservation. But now, when renting housing, they do not use it, but use a security deposit, although people still call it a deposit.

Typically the deposit is paid at the time of signing. lease agreement, it has the amount of the cost of living for a month, while a security deposit cannot be paid for the last billing period of stay.

It is not considered a payment, but an insurance amount in the event of damage to either the apartment or the owner’s property. The security deposit does not cover utility or telephone debts.

Is it possible to save money?

If you rent only “walls”, without furniture and furnishings, then the owner risks practically nothing, and in this case a deposit may not be charged. Well, in all other cases, it is unprofitable for the owner to rent out housing without safety nets.

So that the owner of the apartment cannot attribute other people’s debts to you and not return the deposit on this basis, ask him to provide a certificate from management company and a telephone center about the absence of debts: this way you will be responsible to the owner only for what you owe to the utility companies yourself.

You can take photos, where you can see all the damage to furniture and appliances from a larger angle, so that the owner does not insist on compensation for damage caused by the scratch.

If we really talk about savings, then you can agree with the owner of the apartment to split the payment over several months, and indicate in detail about the deposit payments in the lease agreement: when, in what amount the funds will be transferred. In addition, you can save on the last payment for renting housing: talk to the owner, maybe he will agree to accept it as payment for living?

All grounds for depositing insurance amounts must be clearly stated in the contract, as well as the conditions under which the deposit can be returned to the tenant.

As for the landlord, he also has the opportunity to save money in the event of early termination of the lease; the funds will be able to compensate for the loss of rent.

And numerous disputes about the taxation of the amount of the security deposit have no legal basis: this amount is not listed as the landlord’s income, but only as a security measure and can be returned subject to the terms of the contract, which means that the landlord saves on taxes.

What does the law say about security deposits?

The transfer of the insured amount does not happen just like that, but on the basis of a lease agreement, which means that contractual relations are drawn up, which are regulated Chapter 35 of the Civil Code of the Russian Federation, and the tenant pays either a deposit or a security deposit for renting the premises.

Under the deposit, or security deposit, stipulated in Articles 380 - 381 of the Civil Code of the Russian Federation, it is customary to understand a certain amount that is transferred to the owner of the apartment as security in the event of damage.

If the tenant does not enter into a lease agreement, then this amount remains with the owner, and if the owner of the property changes his mind about entering into a contractual relationship, then he is obliged to return a double amount.

The concept of pledge is given in Art. 334 Civil Code, and means a guarantee of the conclusion of contractual obligations between the parties, that is, the lease agreement must be concluded only with the one who paid the deposit for the apartment.