If there is a conflictive and traumatic moment in renting a home, it is the . The majority of tenants report that their landlords have kept this amount of money without justification, with excuses that have no legal support. These pretexts range from the most common, such as painting and cleaning the entire house, to the most unlikely, such as claiming damage to the drawer of a siphonier that the tenant herself bought.
Nuria Rodríguez, affiliated with the Madrid Tenants’ Union, tells how the owner of the apartment where she rented in Madrid, whom she considered “the best landlord in the world”, became “a scoundrel.” The owner, who withheld about 1,300 euros in deposit and guarantee, claimed from Rodríguez, according to his own account, furniture that did not exist, a dishwasher that never worked and that he used to store pots, holes in the tiles, cleaning under the refrigerator… “He was left with 400 euros for an apartment that he had left in good condition,” he considers.
The experience was not good for Sandra Mora either. “My roommates and I got into a big battle with the owner because he had kept 2,200 euros; It was invented that things were missing from an inventory that I never saw and that there were several breakdowns that did not exist. He did a mental account and was left with 500 euros for his face,” he says.
Although it is assumed that there are ethical and legal landlords, it has become an increasingly common practice, a kind of perverse tradition in which tenants often have the upper hand. “At this point, he is totally unprotected and defenseless because, in addition, he rarely takes the precaution of taking photos and videos of the state of the house. Although the Urban Leasing Law (LAU) preaches that it protects the weakest party, on the issue of bail it is not true,” explains Emilio Rojas, lawyer at the law firm that bears the same name.
Furthermore, “many contracts are mediated by real estate agencies that look after the interests of the owners,” says Javier Rubio, lawyer and legal director of the Center for Consulting and Social Studies (Caes), a firm specialized in rentals. And they add: “There is no incentive for the landlord to return it beyond good faith.”
And it’s not just about the bail, but in many cases they also keep the bail, says Álvaro Bermejo, founding partner of the Bermejo Abogados law firm. “Landlords are predisposed to greatly inflate the damage to unjustifiably retain that money,” the lawyer adds.
It is very common for the landlord to allege the need to paint, clean, slash floors, fix doors that do not close, scratched ceramic hobs, worn locks and knobs… However, these damages cannot be attributed to the tenant, except when there is obvious negligence, because They are part of the normal use of the home. There is jurisprudence that indicates this. “You cannot pretend that the home is in the same state, as if a person had not lived there for five years. A hole in the wall to hang a painting or a small mark on the floor are inherent to renting a home,” they say in Caes. This office provides grotesque excuses from some landlords, such as not returning the deposit because there was a dog in the house, when it was uncertain. Or discount the 1,500 euro repair of a porcelain ceiling lamp valued at 6,000 euros. “It has been moved from the site and replaced (contrary to the contract),” states a landlord’s damage settlement.
It is also common to accuse the tenant of the deterioration of the boiler and the. “They say it is because it has not ventilated, but they are caused by the structural elements of the house and not by negligence of the tenant,” says Rojas.
However, there are some reasons why it is justified to deduct part or all of the deposit. “When there is negligence or misuse of the elements of the home,” explains Bermejo. That is, “if there is damage proven by the negligence of the tenant, which has been quantified by the respective invoice and that the cost is for repair and not replacement, since otherwise the depreciation of the furniture would be charged to the tenant”, says Rubio.
30 day period
When the contract ends, at the time the keys are handed over, the landlord has 30 days to return the deposit. Lawyers advise doing a joint inspection of the house and writing down a list of possible damages in the contract termination annex. The tenant can sign his agreement or not and fight the deposit.
The first step is to try to negotiate. The second is to send a burofax. “In our office, after the burofax, half of the landlords return the deposit and the other half do not,” they point out at Emilio Rojas Abogados. If the landlord does not pay attention or ignores it, a civil lawsuit for restitution of the deposit can be filed. If the amount is less than 2,000 euros, a lawyer or attorney is not necessary.
Most of these matters are not prosecuted, especially when small amounts are involved. However, “more and more tenants are complaining not only for the recovery of amounts, but also for a feeling of injustice. We perceive that there is a desire not to be victims of blatant abuse,” says Rubio.
The Madrid Tenants Union advises negotiating to try to balance the balance a little because they believe that the procedure for returning the deposit is unbalanced in favor of the landlords. “In addition to the fact that you have to wait 30 days for them to return it, we clearly depend on whether they want to do it or not.” The Barcelona Tenants Union says that, once they intervene, the majority of landlords return the deposit. “They know it’s not justified, but they think if it works, it works,” they say. The second route they recommend is judicial.
To avoid regrets, it is necessary to carefully read the rental contract that is signed at the beginning. “Tenants usually sign without looking at the rental contract in which a standard clause appears that says that the home is delivered in good condition, when it is most likely that the owner has not made a renovation or repair in years,” recommends Rojas. . The lawyer advises that the contract include a clause stating that the apartment is delivered as a certain body, that is, as it is, and attach photographs of the home.
