When a rental agreement is involved, both the landlord and the tenant may have certain doubts about the procedures to be followed when formalizing a rental agreement. In addition to all these issues, some fears may come to light: that the tenant does not pay the deposit, one or several monthly payments, that the owner decides not to return the deposit without a justified cause or even ignorance about the legal procedures to be followed.
Whatever the doubt or situation in which both parties find themselves, there is a way to solve it: to know and be informed about the rights and obligations of each of the parties involved in a rental contract. Only in this way can any misunderstanding be resolved. As, for example, the one of the supposed obligatory nature of depositing the rent deposit. This and other questions will be the subject of today’s post, so let’s not waste any more time!
Is it compulsory to deposit the deposit for the rental of an apartment?
Before getting into the subject, let’s explain the concept of a deposit: it is a kind of guarantee that ensures compliance with certain rules or obligations. In the case of a security deposit, it is an amount of money that the tenant pays to the owner of the property. The purpose of this payment prior to entering the apartment is a guarantee that helps to solve possible damages that the tenant may cause during the time the rental contract lasts. It is an agreement, accepted by both parties: if, when the rented property is to be returned, it is not in the same condition as when it was delivered, the deposit is not returned. It will serve as ‘payment’ for the inconveniences.
Now: is it obligatory to deposit a deposit? Yes. The law of urban leases 29/1994 establishes in article 36, since 1995, that it will be obligatory to provide a deposit in cash at the conclusion of the housing lease contract. The new tenant will be in charge of paying this mandatory amount and the landlord will be in charge of depositing it in the autonomous community where the leased property is located.
How is the rent deposit deposited?
We have already commented before that it is obligatory to pay a deposit and to deposit it, but it depends on the autonomous community where this deposit is made. It is necessary to mention at this point that the Autonomous Community of Navarra and the Principality of Asturias do not require the deposit of the deposit; all the others do.
The subject entitled to demand the deposit is the Autonomous Public Administration, and the lessor is obliged to deposit it. Even if the lessor renounces to demand it from the lessee or has not received it from the lessee, he must deposit the corresponding amount. Before the law the agreements that have been spoken between lessor and lessee have no transcendence.
The lessor has two months from the signing of the contract to make the deposit. When the lease ends, the landlord can withdraw the deposit amount by presenting the deposit receipt and the landlord’s copy of the rental agreement (when returning the deposit it will be stamped as cancelled). If the security deposit is not returned one month after the landlord requests it, the management is obliged to pay interest.
Where to deposit the rental deposit in Catalonia?
The amount of the deposit varies according to the autonomous community. In Catalonia, the deposit corresponds to the amount of 1 month of the rental fee, provided that the property is used as a dwelling. If its use is different (seasonal rental), it will be necessary to deposit the proportional part to the duration of the contract. It will be necessary to pay 2 monthly payments of rent for contracts of 1 year of duration. In the case that it is less, the part that proportionally corresponds.
The deposit can be deposited through Internet, in the chambers of the urban property or in the Institut Català del Sòl (INCASOL). The landlord has 2 months to make the deposit since the contract was signed. The landlord is obliged to provide the tenant with a copy of the deposit deposit at INCASOL. The Institute has a FAQ section for doubts or questions, but you can also write to them by e-mail at this address.
Let’s see how to proceed with the deposit depending on the chosen method:
Internet.
The lessor must fill in the deposit form model 2. The payment can be made in the following ways:
- Through the link to model 2. You can choose between the payment option through the Línea Abierta of CaixaBank or by credit card (of any entity).
- At ATMs. You can use Servicaixa (CaixaBank), Banco Sabadell, BBVA, and/or Bankia ATMs. You must also print the form of model 2 that has been generated online.
- In person. You must go to a branch of Banco Sabadell, BBVA or Bankia. You will print 2 copies of the model 2 that has been generated online.
- In the online banking of BBVA, Banco Sabadell and Bankia. You will have to send the payment directly to the Finance Coordination, attaching the PDF that the web offers once the form has been saved.
- In person at the Institut Català del Sòl, you must make an appointment. The payment can be made by bank card, nominative bank check or by check made payable to INCASOL. You will have to bring 2 copies of the model 2.
You will have to bring model 2, a photocopy of the lease contract and its clauses and a photocopy of the Avalloguer commitment document signed by both the lessor and the lessee.
Urban Property Chambers
The Property Chamber will process the deposit and will generate form 2 for you to sign (as the lessor). You will have to make the payment in cash and the documentation that you will have to provide is:
- The original or photocopy of the lease contract and the clauses.
- Original or photocopy of the Avalloguer commitment document signed by both parties.
- The cadastral reference.
Institut Català del Sòl (Coordination of Bonds)
If you want to make the deposit of the deposit of the rent of a house in INCASOL, you will have to ask for previous appointment to go in person to the headquarters. You will have to present the model 2 duly completed. In INCASOL’s offices you will find computers to fill out the form. The form of payment will be by bank card, nominative bank check or check made payable to INCASOL.
The documentation to be provided is: a copy of model 2, the original or photocopy of the contract with the clauses and the original and a copy of the Avalloguer commitment document signed by both parties.
Are there any penalties for not depositing the rental deposit?
Depositing a deposit before formalizing the rental of a property is mandatory. If it is not made, the tenant has no responsibility and, therefore, does not face any penalty. The landlord, however, does: he is responsible, as the landlord, for depositing the security deposit after receiving the amount in cash from the tenant. If he fails to do so, he will be subject to the penalties imposed by the autonomous community in which the rental property is located.
The penalties for not depositing the rental deposit in Catalonia will depend on the type of infraction committed. The Generalitat de Catalunya classifies them as minor or serious.
- An infraction will be considered minor when the deposit is not deposited within two months from the formalization of the contract. If the inspection services of the Generalitat have opened a file for the regularization of the deposit, this infraction will be considered serious.
- It will be considered a serious infraction the lack of deposit of the deposit or of the updates of the same one. This means that, if the landlord deposits the security deposit before the inspection calls him, the infraction will be considered minor. But if the inspection procedure has been initiated for the same reason, the deposit will already be considered as a serious violation.
In addition to the 2 types of infractions commented above for not depositing the rental deposit, in Catalonia there are other types of sanctions:
If the deposit is paid after 2 months from the formalization of the contract, a series of surcharges are established. These can go from 5% to 20% of the amount of the deposit if the inspection does not intervene (depending on when it is paid). If, finally, the inspection services do intervene, the surcharge will be 25%. To these amounts, interest for late payment must be added.
In addition to these penalties, failure to deposit the rental deposit in Catalonia results in the imposition of a fine not exceeding 35% of the amount of the deposit, up to a limit of €3,000, in the case of a minor infringement. In the case of a serious infringement, the fine will be from 35% to 75% of the amount of the deposit not deposited.
Conclusions
Given the multiple penalties that the landlord may suffer if he does not deposit the security deposit for the rental of his property (in addition to the ethical charges), it is not only advisable, but a legal obligation, to deposit the security deposit in every rental contract. At Blegal we have property management services that can help you manage all the legal formalities involved in renting a property. Contact us and our team will study your case in order to create a personalized work method tailored to your needs.
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