Monthly Archives: March 2019

What is the Deadline for the Return of a Deposit?

The statutory deadline for the return of the security deposit is provided in Article 22 of the Law of 6 July 1989 to improve the rental relationships. It varies from one to two months depending on the state of the housing at the time of delivery of the keys following the inventory. The deposit is the guarantee for the landlord of the performance of the tenant of its rental obligations.

The return of the deposit is made at the end of the rental agreement. This is one of the most common sources of dispute in rental relationships.

Introduction to the security deposit

Introduction to the security deposit

 

What is a security deposit?

The security deposit, also called a “deposit” in everyday language, is a sum of money that the tenant gives to the owner at the time of the signing of a lease. It serves as a guarantee to the landlord in case of any claims that the landlord may have against the tenant at the end of the lease contract, in the event that the tenant fails to fulfill one of his obligations: inter alia maintenance of the premises and payment rent and charges.

The amount of the deposit:

The amount of the deposit is one month’s rent excluding charges. This amount must be fixed in the rental agreement.

Warning ! The security deposit is called “caution” in common language, but the bond – legal term – does not have the same meaning. The “surety” means that a third party to the tenant and the lessor vouches for the tenant’s mistakes, for example in case of non-payment of the rent.

Step prior to the return of the deposit: the delivery of the keys at the exit of the places

Step prior to the return of the deposit: the delivery of the keys at the exit of the places

 

The return of the keys from the tenant is followed by the return of the deposit.

The handing over of the keys is a key element to the return period of the deposit. Indeed, the keys are handed over after having established the inventory of outlets. It marks the end of the contract and gives a final value to the inventory.

The inventory must at all costs be established before handing over the keys. If it is established after handing over the keys, the tenant can argue that the deterioration of the housing was made after the end of his contract. The owner will not have the means to prove otherwise and will not be able to use the deposit for the repair of the premises.

The period of restitution of the deposit begins to run at the handing over of the keys marking the definitive exit of the tenant of the places.

The period of return of the deposit in the law:

The period of return of the deposit in the law:

 

The restitution of the deposit is regulated in article 22 of the law of July 6, 1989 tending to improve the rental relationships. The law of 24 March 2014 for access to housing and renovated urban planning came to specify the return of the deposit.

Prior to the ALUR law, the return period for the deposit was two months from the handing over of the tenant’s keys to the landlord at the exit of the premises. The ALUR Act clarifies this provision. The return period of the deposit is now linked to the inventory of places of exit.

Why a legal deadline for the return of the deposit? This allows the owner to have the time to proceed with any work if the housing has been degraded, and to charge the sum of work on the deposit of the tenant. The deposit will be returned by deducting the amounts due by the tenant to the lessor in case of any damage to the premises.

Good to know ! the work must not actually be carried out during the two month period. It is sufficient for the owner to prove the reality of the damage caused by the tenant to be able to keep a part of the deposit or the totality (according to the importance of the degradations).

The variable delay of the return of the deposit

The variable delay of the return of the deposit

 

The law fixes the maximum period of return of the security deposit for empty rentals and furnished rentals. The period of return of the deposit begins to run on the day of the return of the keys of the tenant to the lessor.

Good to know ! The owner has of course the right to return the deposit to the tenant from the day of departure of the tenant, if the accommodation is returned in perfect condition.

Time of restitution for a dwelling rented as a principal residence:

Whether the rental is empty or furnished, the rule is the same:

  • The return period of the deposit is one month if the inventory of places of exit is consistent with that of entry: it means that there has been no degradation.
  • The return period of the deposit is two months if the inventory of exit is different from the one of entry.

Return period for other types of rental:

It depends on the type of lease.

For seasonal and short-term rentals, the rental agreement must provide for a return period of the security deposit allowing the landlord, in the event of damage, to replace or repair certain elements of the dwelling with part or all of the deposit.

For condominium housing, the landlord may proceed to a temporary stop of the accounts. It can also keep a maximum provision of 20% of the security deposit until the situation is regularized. The return of the deposit will take place in the month following the regularization of the situation. The adjustment must be made in the month following the final approval of the accounts of the building.

Refusal to return the deposit within the legal period

Refusal to return the deposit within the legal period

 

The delay of return of the deposit:

The tenant may give notice to the owner to return the deposit by registered letter with acknowledgment of receipt and with reminder of the maximum legal period provided for the return of the deposit.

In case of late refund, late payment interest is due to the tenant. If the landlord does not react in time, the tenant has the opportunity to claim compensation of 10% in case of late return. The landlord will have to return the security deposit and a 10% increase in the monthly rent excluding charges for each month of delay started.

Example: if the security deposit is returned within 2 months and 5 days late, the owner will have to pay an allowance of 10% for each month started to the tenant, that is 3 times 10% even if the third month has not started only for 5 days. The late payment is therefore 30% of the rent excluding charges in addition to the return of the deposit.

Warning ! The landlord must not pay a late payment if the delay is caused by the fault of the tenant. The ALUR law therefore requires the tenant to give the landlord his new address in order to allow him to return the deposit check by mail in time. This helps prevent tenant abuse. Indeed, if the owner does not have the new address, he can miss the statutory period of restitution of the deposit.

Refusal to return the deposit:

Failure to return the deposit must always be justified by the lessor. The landlord may retain the security deposit in case of unpaid rent, unpaid charges or damage to the premises by the tenant. He can justify the refusal of restitution the security deposit through various means of evidence: the inventory of fixtures, invoices and quotes of work done, letters of claims for unpaid, etc.

If the owner retains the security deposit without justification after expiry of the legal period, several recourses are open to the tenant:

  • The formal notice of the owner by registered letter with acknowledgment of receipt.
  • In case of non-restitution, and after formal notice, the tenant must seize the departmental commission of conciliation on which depends the lodging near the services of prefecture. This entry is free. It makes it possible to attempt an amicable conciliation of the parties. This procedure avoids a more expensive and slower court process. If the attempt is unsuccessful, then the commission delivers an opinion within two months of the referral.
  • In the event of failure of the previous step, the tenant has the possibility to seize the Court of Instance of the place where is located housing to which will be transmitted the opinion of the Commission within 3 years from the expiry the return period of the deposit

Criminal Bail, What is it?

It is necessary to distinguish between the civil guarantee and the penal guarantee. Civilian is the one we all know, when a person is a guarantor for renting an apartment or for a loan. 

Criminal bail is one of the terms of the judicial review. 

Criminal bail is one of the terms of the judicial review. 

A judge will tell an indicted “that he can remain free pending his trial in exchange he must meet obligations.” He will then be placed under judicial control. 

The judicial review has two components: 

  • – Obligation for example not to come into contact with the victims, not to go to a place… 
  • – It is also the payment of criminal bail. But this modality is not very used because complicated to put in place. 

Criminal bail is an  alternative to pre-trial detention. 

A first part of the bond is assigned to “representativeness”.  The judge wants to ensure that the indicted will come to the hearing on the day of the trial. 

A second part of the bond is assigned to “compensation to the civil party and the payment of fines”

It can sometimes be assigned to only one of these obligations. 

By paying this deposit you therefore guarantee: 

  • – To appear before the judge. 
  • – To compensate the civil party and pay the fines.

Who decides on the amount? 

Who decides on the amount? 

The amount, the period of payment and, possibly, the splitting or setting of a schedule are decided by the judge of freedoms and detention or the judge of instruction. The amount of the deposit is decided according to the financial situation of the people. 

Is the deposit refunded? 

Is the deposit refunded? 

If a non-place is pronounced, your deposit is fully refunded. That is to say, both the part that was intended for “compensation”, and the part intended for your “representativeness”.

If you are convicted, if you have fulfilled the obligations of judicial review, then the first part of the bond, the one for “representativeness”, is returned; the second part serves, as planned, to compensate the civil parties. 

If you did not show up, you are incarcerated. In this case, the State keeps the guarantee for “representativeness”. 

When the part of the bond intended to compensate the victims is not sufficient, the State can fill the gap by taking in the part intended for representativeness. 

Where is the deposit? 

Where is the deposit? 

It is paid to the registry of the court, which transfers it to the Caisse des dépôts and consignations.

The case of France and the United States

The case of France and the United States

Criminal bail bonds are not used in the same way in France as in the United States. Generally, in the Anglo-Saxon countries, the deposit is commonplace. With us, it is more rare. 

In Bordeaux, for example, a former judge of liberty and detention “had one or two cases of bail in 3 years”. Most often the indicted are under judicial control but without obligation to pay bail, or they are incarcerated. “In France 25% of prisoners are not tried, they are in pre-trial detention, which is far too much,” he lamented. 

Mutual Bail in the notes

The aim of this paper is to discuss the validity of the bail against bail in the Turkish Code of Obligations. The reason of this discussion is that the 12th Law Department of the Supreme Court of Appeals has given af ​​concurrent consent ‘and am consent Bu.

Validity Requirements of the Multiple Bail

Validity Requirements of the Multiple Bail

  • A valid principal debt relationship
  • Written form
  • The maximum amount of liability of the guarantor
  • Date of bail
  • If the guarantor of the guarantor, the date of bail and the succession of the bail, the name of this record with the author’s hand writing to be specified
  • The consent of the spouse (TBK Art. 584 – Art. 494 of the Swiss Code of Obligations)

As it will be seen, the Law has made bail very strict. All conditions here are valid and any bail relationship that is contrary to these conditions is invalid. We will not, however, examine these conditions in detail. However, there are two exceptions to the necessity of spousal consent. These:

The consent of the spouse is not required for changes that are subsequently made in the bail contract and which do not lead to an increase in the amount to which the guarantor will be responsible or to the conversion of ordinary bail to successive bail or to a substantial reduction in the guarantees for the benefit of the guarantor.
The surety to be given by the shareholder or the manager of the commercial enterprise registered to the trade registry or by the partner or the manager of the trade company regarding the enterprise or company, and the tradesmen or craftsmen registered in the registry of the tradesmen and artisans regarding their professional activities, are The guarantee of the surety to be given in the loans to be used in the scope of the Law on Interest Supported Loans granted by Banks and agricultural surpluses, agricultural sales, tradesmen and craftsmen, credit and surety cooperatives, and public institutions and organizations shall not be sought for the surety to be given to the cooperative shareholders.

It should be noted here that the first exception of the spousal consent is a viable exception, regardless of the parties to the original debt relationship. The second exception of the partner agreement is an exception to the parties of the original debt relationship and the subject of the original debt relationship. According to this exception, the spouse’s consent will not be searched bail relationship:

Sureties of the companies or their partners who are guarantor to the bank, agricultural credit, agricultural sales loans.
Banking or agricultural loans related to the professional activities of the tradesmen, agricultural sales, tradesmen and craftsmen, credit and surety cooperatives, and loans to be used by co-operative partners by public institutions and organizations.

Bills (Bono), Executive Bail and 12. Legal Department’s Opinion

12. The Legal Chamber of the Supreme Court explicitly emphasizes that in case of the absence of consensual guarantee on bail, the execution bail shall not be valid. Even in the numbered 2013/31202, it is also considered unlawful that the borrower does not have his / her handwriting as a joint guarantor.

12. Legal Department of the Supreme Court; it does not seek the consent of the consortium on the joint bail. This is because they do not consider bail as a bail in the securities and evaluate them as AVAL.

In short, the relevant apartment; it does not seek this condition in bonds when seeking conditions for bail in a lending process with the participation of the official. In our opinion, there are two basic problems. The first of these; in all bail transactions with the participation of official officers, the conditions of bail are searched; the second one is the interpretation of surety in bonds.

The most important aim of the law is the protection of the family as socio-economic. It is the purpose of this norm to protect the economic structure of the family as a result of borrowing due to the debt of someone else, unaware of the husband. When we make a purposeful interpretation, whether or not whether the deed or executive surety, and necessarily, on the bail should be sought consensual consent.

In the normative system, we believe that there are some legal difficulties in seeking the consent of the spouses in the bail with the participation of official officials. The two most basic examples are; surety in the title deed with the mortgages in the registry, notarde bail in the form of regulation. It should also be examined whether it is possible for the person claimed to be guarantor to accept the case in a case of bail.

In our opinion, bail is also possible with the principal mortgage in the land registry. The form of mortgage contracts is uniform and is shown in the legislation. In such a contract, it is not possible to fill in the bail limit and the handwritten by the guarantor of the sign that we are joint guarantor. In this case, a separate bail contract must be made in our opinion in accordance with the separate TBK. In addition, the creditor can obtain the consent of the spouse externally until the contract is established.

Again, we do not see the possibility of the handwriting condition in the bail documents prepared by the notary public.

We believe that the norm for spousal consent is a public mandate. For this reason, one should investigate the existence of a spouse with the claim that he / she is a guarantor or not. The person who claims to be a creditor and bail is liable to prove that he has received his spouse’s consent. However, in a lawsuit filed against x with the claim that he is a creditor and that x is a guarantor; x ‘s wife is not a success until the bail contract is established; If x accepts the case in the trial, this “acceptance” should be considered invalid.

As a result, the existence of conditions of bail must be sought even in the cases of bail.

The reason why the 12th Legal Department of the Semi-Criminal Court has made this assessment, which defines the responsibility for the signature under the sign Kanunu joint guarantor 70 on the front side of the notes, is 701/3. Agent. Accordingly, except for the signatory or the signatory’s signatures, each signature on the face of the policy shall be deemed to be avaliable. This provision also applies to bonds, bonds. In addition, these provisions are special provisions in accordance with the provisions of the Code of Obligations.

However, in our opinion, we believe that all conditions related to the bailiffs in the TBK should be established for the bailment of the signature signed with the sign of joint guarantor.

Deposit And Bond: What Are The Differences?

 

The security deposit is often mistaken for the surety for abuse of language, in the context of a lease that is a furnished rental lease or an unfurnished rental lease.

The security deposit is a sum collected by the lessor used to cover the possible expenses of the rental repairs after the departure of the tenant while the deposit is supported by a guarantor who expressly undertakes to fulfill the obligations of the tenant if the latter is in the impossibility of paying the rent.

Let’s see all the differences between a security deposit and a home lease bail or for any other type of lease.

The deposit is a check cashed by the lessor at the signing of the lease

 The deposit is a check cashed by the lessor at the signing of the lease

The deposit is a check cashed by the lessor at the signing of the lease unlike the deposit check that can be cashed in only specific cases.

Whether the accommodation is empty or furnished, the owner has the right to claim a deposit, often paid in the form of a check, used to cover any rental repairs that must be made after the inventory of places of exit . It is used to guarantee the lessor against any deterioration of the housing, rent or unpaid charges as well as against any work necessary for the rehabilitation of housing.

The deposit is not mandatory, but is becoming more and more frequent. If a deposit is required by the lessor, the latter must expressly mention this on the lease.

However, the amount of the deposit, the terms of payment and its return are heavily regulated by law, especially since the Alur law of March 2014.

The security deposit rules

The security deposit rules

Previously, the amount of the deposit was subject to the will of the lessor. In order to avoid abuses, the law Alur came to legally frame the deposit.

For leases of furnished housing signed as of March 27, 2014, the amount of the deposit can not exceed two months rent excluding charges. In the case of an empty dwelling, this sum can not be greater than one month’s rent excluding charges.
Attention, if the rent is paid for a period other than monthly (quarterly for example), the lessor can not require the payment of a deposit.

People in financial difficulty who can not assume the payment of a deposit can receive assistance such as the Loca-Pass advance offered by Action Logement Services or the Housing Solidarity Fund (FSL). The security deposit must be paid on the date the lease is signed. If paid in cash, the tenant has the right to demand a receipt.

Once the inventory of the place of exit carried out, if it is in conformity with the inventory of places of entry, the owner has a month to return the deposit to the tenant. If rental repairs are necessary, the return period is extended to two months and the lessor may charge these expenses on the deposit paid to the departure. The period begins to run upon return of the keys to the lessor, either in person or by LRAR.

Attention: if the landlord considers that rental repairs are necessary, he must justify any withholding on the deposit with the tenant. If the housing is in co-ownership, the lessor can keep a maximum of 20% of the deposit until the annual closing of the building accounts.

Note: the deposit may also be used in other types of contract, such as the holdback in private works contracts.

What remedies in case of late return of the deposit? 

In the event of delay of return of the deposit, the tenant can put in residence the owner by registered letter with acknowledgment of receipt. If, after formal notice, the landlord still refuses to reimburse the amount of the security deposit, the tenant can refer to the departmental conciliation commission on which the housing depends or inquire with a conciliator of justice. In the event of failure of the amicable recourse, the tenant will always be able to seize the Court of Instance of the place of the domicile of the owner.

In addition, late penalties are provided if the lessor delays repaying the security deposit: the latter is indeed increased by 10% of the monthly rent excluding charges per month of delay.

The surety is a person who vouches for the tenant

 The surety is a person who vouches for the tenant

Unlike the deposit, the deposit is not a sum to be paid but a person who guarantees for the tenant in case of unpaid rent. When signing the lease, the latter must copy and sign a handwritten bond issued by the lessor stating that it will be jointly liable in the event of default by the tenant. It can be claimed when signing a residential lease or commercial lease.

Mandatory information and supporting documents of the act of suretyship

 Mandatory information and supporting documents of the act of suretyship

To be valid, the bond must include:

  • the name of the tenant;
  • the address of the dwelling;
  • the name of the lessor.

Certain mentions, to be copied by the guarantor in a handwritten way, are also compulsory such as the amount of the rent, the duration of commitment of the surety, the ceiling of guarantee as well as the partial reproduction of the article 22-1 of the law of 6 July 1989. This information must be unequivocal so that the guarantor is fully aware of the extent of his commitment.

To ensure the creditworthiness of the guarantor, the lessor may require supporting documents. However, a decree of the Alur Act established an exhaustive list of supporting documents that the lessor was entitled to claim or not.

Undertaking by the guarantor in the context of a surety

 Undertaking by the guarantor in the context of a surety

If the bond does not provide for a term to the surety, the guarantor can terminate unilaterally, preferably by registered letter with acknowledgment of receipt.

In case of roommates, the guarantor can either commit to one of the roommates, or commit to all roommates. In this case, his appointment will end when all the roommates have left the house.
If the guarantor is the guarantor for only one of the roommates, the commitment ends immediately after the termination of the tenant’s notice provided that he is replaced upon his departure.
Attention, the guarantor will be engaged six months after the end of the notice if the tenant has not been replaced.

In addition, as a lessor, you can not claim a guarantor if you have already required insurance against the risk of unpaid rent (Unpaid Rent Guarantee or GIL) unless the tenants are students or apprentices. In this case, the precariousness of their situation makes it possible to justify a combination of guarantees for the lessor.

Single deposit and joint guarantee

 

There are two types of bonds: the single bond and the joint surety.

If it is a simple deposit, in case of unpaid rent, the lessor must first turn against the tenant by sending a command to pay by registered letter with acknowledgment of receipt. Only if the procedure fails will the lessor be able to turn against the deposit to demand the payment of the rent due.

On the other hand, in the case of a joint and several guarantee, the lessor may, from the first unpaid rent, require the surety to compensate for the tenant’s failures.

 

Ask for two tenant bail for the tenant? A habit now outdated and risky

If you are planning to rent your property (villa or apartment), it is very likely that different worries are popping up in your mind.

  • Will I choose the right tenant?
  • Will my property handle well?
  • Will it damage me?
  • Will you pay the rent regularly?
  • And the condominium fees?
  • Will I have to pay for them from my own pocket?

These are just some of the doubts that swirl in the head of any homeowner.

And to try to get around at least some of these problems, you’re probably thinking of asking for the famous security deposit . I’m talking about the classic two-month bail that you get as a guarantee from the future tenant, before handing him the house keys. A sort of safe in anticipation of any damage.

“If I ruin the parquet or if I break the appliances, at least I can recover something from the bail”.

This is the refrain that most homeowners repeat. And maybe you’re thinking about it right now.
Too bad that renting your own property in the 21st century and simply asking for a couple of months ‘bail is as dangerous as putting your hand in the lions’ cage.
It can be good for you and prove to be a magnificent and peaceful experience.

But it can also take a bad turn and reduce you rather battered.

But why has the classic security deposit in 2018 become a huge risk?

But why has the classic security deposit in 2018 become a huge risk?

What has changed in recent decades?

And above all, how can you protect your property and your assets from unruly tenants who do not pay you or cause damage?

To find out, you have to trust and enter the time machine for a few moments with me.

Are you ready?

Street!

Year 1962.

You own a beautiful apartment in the center.
You’ve struggled for years to pay off your mortgage and now you want to rent to enjoy the sacrifices you’ve made for your family in peace.
In this way, you can finally get an extra income for yourself and your loved ones. After a short search and some word of mouth, you receive a call from a possible candidate.

His name is Alberto and he is a young boy of 25 years. He recently got married to a girl from the town and they are waiting for the first child.

When you meet him face to face … SURPRISE! Find out who is the son of your childhood friend.

Of course, you can never know who you put at home … but the fact that it is the son of an acquaintance of yours calms you. It makes you hope he is a good person. And anyway, you’re sure he has the money to pay the rent, since he works as your uncle’s employee.

You immediately feel refreshed and think that it is the perfect candidate to entrust your home. You ask him for two months of bail as a mere formality and shake your hand to close the deal.

Now follow me and enter the time machine again with me.

Year 2018.

You are always the owner of a nice and well-kept apartment in the central area of ​​the country.

Place an ad on the main online property portals or delegate the search for a tenant to the trusted agency.

You find a candidate on the internet, but you don’t know who he is, what he does and what kind of treatment he can reserve for your property.

Take a look at his paychecks and decide to trust.

After a few months, however, the tenant stops paying rent and condominium fees. You are forced to take the money out of your pocket to cover the hole you created.

Yet he seemed like a good person at first sight!

You waste hours of your precious time trying to contact the delinquent tenant, but you only get doors in your face. Trigger the slow bureaucratic machine to evict him, spending more money and time trying.

And in the end – between condominium fees, phone calls, bureaucracy and lawyers – the TWO monthly deposit is over.

Evaporate.

What seemed like a solid guarantee to protect you turned out to be completely inadequate.
Now, let’s leave the time machine.
As you can see, in recent decades renting your own villa or apartment was much more “simple”.

The level of social control you could exercise at the time was much more effective.

In most cases, in fact, you would have rented your property to a person who was part of your environment and of whom you could gather various information in the local community.

Today this level of control does NOT exist anymore. Unless you live in a village of 150 souls, in fact, it is very difficult for you to have a bond of acquaintance with most of your fellow citizens.

Maybe you know your neighbors.

Perhaps you recognize the faces of the people who live in your neighborhood.

But beyond a certain level, it is now impossible to know exactly who you are putting yourself at home.

Nowadays, people move, change work and lifestyle at an impressive speed.

You have no way of knowing relatives, friends, acquaintances or employers of the future tenant.

You have to trust a brief meeting in person and some piece of paper that certifies your salary.

The company has really changed sharply compared to 30 years ago. Once the famous handshake represented a real guarantee for you. And the two monthly bail were more than enough to make you sleep soundly.

The problem is that then NO ONE has bothered to warn you of this change and the fact that the simple security deposit is NO longer able to solve it and to protect you properly.

But how can we solve this problem?

Simple.

It is no longer enough for you to “shake hands” with the tenant and conclude the deal by making the sign of the cross and hoping that it is a decent person.

You need to “shake hands” with an outside body that guarantees you economic support when your tenant stops behaving in a way.

  • A system that allows you to keep all the money in your pocket, even if the fee is NOT paid to you. And even if your property has major damage.
  • A system that allows you to EXPLOIT the (old and outdated) monthly bail and multiply them by 15 . A real guarantee in a sector where uncertainty reigns supreme.

And it is the ONLY way you have in the new millennium … if you want to enjoy the life of a home owner you deserve. Without the fear of having to shell out thousands of euros due to tenants who do not pay fees, condominium fees or who cause damage to you.

And if you are reading this article, it means you still have time to avoid burning your money unnecessarily and finding yourself at the mercy of a nightmare tenant.

I know it may sound like science fiction, but it’s all tested and guaranteed.

If you want to forget once for all the worries, thoughts and doubts that assail you when you want to rent your property, click on the link below and find out immediately how to fix yourself.

Access the Perditometer

18 September 2018 By adminRents What to Know The arrears is around the corner. Are you ready to defend your money and your property?