What is an insurance deposit? ○ How the deposit is transferred and returned. How to withdraw without additional costs

It is probably worth starting with the fact that civil law does not know the concept of "insurance deposit". This definition was derived by practice and is understood as the payment by the tenant of a certain amount (in practice, most often equal to one monthly payment for an apartment), which in case of damage to the leased property, non-payment of utility bills, etc. will be retained by the landlord to cover possible losses.

It is probably worth starting with the fact that civil law does not know the concept of "insurance deposit". This definition was derived by practice and is understood as the payment by the tenant of a certain amount (in practice, most often equal to one monthly payment for an apartment), which in case of damage to the leased property, non-payment of utility bills, etc. will be retained by the landlord to cover possible losses. In the absence of such losses, claims from the parties to each other regarding the fulfillment of obligations under the contract of employment, the "insurance deposit" must be returned to the employer.

"Insurance deposit" and collateral

At the same time, one should not confuse and confuse the concepts of "insurance deposit" and "collateral". And although in practice these concepts are often recognized as identical, they are far from the same. Pledge is one of the ways to fulfill obligations. According to Art. 329, 334 of the Civil Code of the Russian Federation, the creditor (pledgee) has a priority right over third parties to receive the fulfillment of the obligation of the debtor (pledger) at the expense of the pledged property, if the debtor was unable to fulfill the obligation assumed earlier. That is, a pledge can be made by the tenant (pledger) to the landlord (creditor) to ensure the fulfillment of the obligation assumed.

The most obvious example is that a tenant undertakes to pay the rent for an apartment on time and at the same time pledges a certain amount to the landlord so that in the event of non-payment of the rent, his obligation to pay will be fulfilled on account of the amount pledged. Thus, when signing a tenancy agreement, a deposit (for example, in the amount of a monthly payment) may be provided in order to guarantee payment of the tenant's last month of residence.

What can be secured with a security deposit?

"Insurance deposit", in turn, is not a pledge aimed at ensuring the fulfillment of an obligation. This is a way to guarantee 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 the introduction of " security deposit”(both as a separate document and the inclusion of such a clause in the contract for renting a dwelling) it is necessary to proceed from the provisions of Art. 329 of the Civil Code of the Russian Federation, according to which the fulfillment of obligations under an agreement (including a contract of employment) can be secured in the following ways - a pledge, a deposit, a penalty, the debtor's property, bank guarantees, a surety and other methods provided for by law or an agreement.

We have already dealt with the deposit - at the expense of it we ensure the fulfillment of the obligation to pay the rent. But the fulfillment of an obligation that arose as a result of causing harm can be ensured just by an “insurance deposit”. That is, if the tenant caused damage during the period of residence in the apartment, spoiled 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 it voluntarily, having determined together with the landlord the amount of damage. But if there are disagreements on the amount or other misunderstandings, the situation will have to be resolved only through the courts. Making and making an "insurance deposit", as a certain amount that will be withheld by the landlord in case of damage caused by the tenant, allows you to avoid these troubles.

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

Summarize. In practice, when concluding a rental agreement, the concepts of a pledge, an insurance deposit and a 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 competent to provide for several independent clauses in the contract: on a deposit - with its help, payment of the last month of the tenant's residence is guaranteed (if the last month is paid in in the usual way- he is coming back); about the insurance deposit - in the absence of damage to the property of the landlord or third parties, it is subject to return to the tenant in full; advance payment 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 made, 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, which was donated to pay for the last month, then at what expense to compensate for the damage caused, unpaid utility bills, Internet, telephone, etc.? Accordingly, it is most reasonable to provide for both of these legal institutions in the contract of employment. But it is obvious that depositing several amounts at once, and taking into account the real estate commission, may simply be unbearable for many landlords, and a compromise must be sought in these matters.

Has a number important nuances which both parties need to pay attention to. The key point in such an agreement is the deposit by the tenant. What does this term mean? How is its size determined? In which case the deposit may not be returned to the tenant? All of these issues, as well as a number of others, simply need to be considered in more detail.

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Concept definition

The deposit is cash, transferred to the lessor for a certain period and subject to return to the tenant, in case of proper execution of the contract.

The amount of the deposit is made up of:

• monthly cost;
• final calculation of utilities for one month.

In some cases, the amount can be increased by one more rented month. The latter is not mandatory, but possible by mutual agreement of the parties.

In other words, a deposit is an advance payment. The latter can act as:

• insurance for entrusted real estate and material assets located in it against damage;
• payment for the last month of living in the rented premises.

What is it for

It should be noted that when concluding a contract, it is mandatory:

1. exact indication of the address of real estate;
2. full name, year of issue, actual condition household appliances, including video, audio equipment;
3. availability of intellectual property items;
4. indication of material values;
5. the actual condition of the premises.

Higher items listed must be accurately recorded in order to subsequently correctly recalculate the deposit if there are any changes.

This leads to the conclusion that the deposit is the insurance of the owner of the premises for the safety of his complete property. In the event that damage, breakage, loss of any of the specified property occurs in the process, then the responsibility lies entirely with the tenant.

It should be noted that if such a situation occurs, then there are several options for solving it:

• the tenant fully covers the cost of the damaged property;
• the tenant acquires the same property at his own expense;
• the tenant and the landlord jointly resolve the situation.

Given the above, it must be said that the payment of the sum insured is necessary for:

1. full safety of all property;
2. for the peace of mind of the owner, for everything belonging to him, for the term of the lease contract.

What is the difference between bail

Deposit and pledge are quite close concepts. However, upon closer examination, it should be noted that the difference is large:

1. A deposit is a payment to the owner of the premises for possible damage caused.
2. A deposit is a certain contribution, indicating that a person really intends to rent an apartment.

Naturally, in the event of a transaction, the amount of the deposit will be deducted from the rent. If the deposit was paid, and the lease agreement was not concluded, then the funds remain with the lessor.

Example.

On the first of November, Oleg, the landlord, met with Nikolai. After viewing a one-room apartment, Nikolai left a deposit of three thousand rubles. With this step, Nikolai confirmed his intention that he agreed to rent an apartment. The date for the conclusion of the contract was set for November 5th. When a certain number came, Nikolai did not appear for the deal. Accordingly, the pledge transferred by him remains with Oleg.

How to transfer a security deposit under a lease agreement to a transaction participant

It should be noted right away that all monetary transactions occur only at the time of the conclusion of the lease agreement.

This process takes place as follows:

• the landlord and the tenant get acquainted with the terms of the lease;
• the parties discuss the issues that have arisen;
• signing an agreement;
• determination of the amount of money that the tenant must transfer to the landlord;
• direct transfer of funds;
• fixing the transferred amount in the contract.

It must be said that at this point the tenant must transfer the amount of two full months of rent.

Refund of security deposit

The security deposit is returned in full, only in two cases:

1. With the full implementation of the lease agreement.

Example. The lease agreement was concluded for eleven months. The tenant lived the specified time. All property entrusted to him is in perfect order. Thus, there is every reason to return the money in full.

2. In case early termination lease, with at least thirty days' notice to the other party.

Example. The lease term is eleven months. The tenant lived for four months and, due to family reasons, must move to another place. In this case, he warns the landlord thirty days in advance. Upon termination of the rental contract within the specified period, the tenant is obliged to return the deposit in full.

Errors when concluding a lease agreement on an insurance deposit

The main point in this matter is the correct indication of the date of conclusion of the lease agreement, as well as the date of monthly payment. Basically, these dates coincide. However, questions begin to arise when the specified dates have a gap of up to two weeks.

Example.

The contract was concluded on the 12th. The landlord asks for a deferral of payment on the 24th. Subsequently, disputes arise between the parties. Since the deposit was made upon the conclusion of the agreement, and the main payment was one week later. In this case, the tenant is right and, accordingly, the recalculation of the deposit will be carried out from the 12th. It is also necessary to organize complete list things transferred for temporary use. The actual wear of the latter is important here, which must also be recorded.

You can do without the second amount

The insurance premium is mandatory and guarantees the lessor the safety of his property.

However, at the discretion of the owner, sum insured may not be included for a number of reasons:

• the tenant is a trustee;
• There are no valuable items in the rental property.

It is worth noting that in some cases, insurance can be divided into several months. This happens only by agreement of the parties and is prescribed in the contract.

Why some employers are not willing to pay a security deposit

Renting apartments is practiced quite long time. In this regard, there are both positive and negative experiences.

Example.

Andrei rented an apartment for ten months. When he moved into the apartment, he paid a security deposit. Before leaving the rented premises, he warned the tenant thirty calendar days in advance. However, when the contract was terminated, Andrey did not receive back the paid insurance.

The tenant, in turn, explained this by non-fulfillment of the contract in full. It is worth noting that in the future this situation can only be resolved in a judicial proceeding. It is based on the presented example, which in turn happens often, that many are simply afraid to make a deposit.

It should be emphasized that during the term of the contract, all funds transferred from one party to another are recorded. This is done in order to avoid conflict situations later.

Summing up, we should list a few tips that will be useful in the future for both the tenant and the landlord:

1. A realtor must be present at the conclusion of the contract. This person is an interested party and will issue necessary documentation as it should be. In addition, in case of any questions, both parties will have a company phone number where they can consult.
2. The specific date of the conclusion of the contract, as well as the dates of settlement and subsequent payments, must be fixed.
3. Try to resolve conflict situations through negotiations and try to find a common language.
4. Also, do not forget the issue of utility bills, since the amounts can be simply catastrophic.
5. Check the condition of the apartment at least once a month. This is necessary for both the tenant and the landlord.

Civil Code Russian Federation, which fully regulates the procedure for transferring living space for temporary use, also defines such a thing as an insurance deposit when renting an apartment. It represents a kind of guarantee and protection for the owner of the property regarding the risk of harm to his property. Also, the deposit will help if the tenant evades paying utilities and other obligations.

Such a concept as a deposit when renting an apartment is not fully reflected in the current Russian legislation. It exists solely in connection with the rules of business transactions in certain areas of activity. That is, at the conclusion of the contract, the owner of the apartment may put forward a requirement for the payment of a certain guarantee amount of money. This is due to the possible damage to the owner of the home, that is, damage to household appliances, furniture and the premises itself.

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Why not bail

Many people confuse an insurance deposit with a pledge, however, in legal terms, these two concepts are significantly different from each other. A deposit is a certain agreed amount that the tenant transfers to the owner of the apartment in order to confirm the seriousness of his intentions, which is analogous to booking a property. The deposit is transferred at the time of signing the lease and is equal to rent for one month stay as well as the security deposit.

Security deposit - the amount that will go towards compensation to the owner of the apartment if the tenant causes damage to his property. It is inappropriate to make such a deposit only if the tenant rents part of the apartment, and the owner will also live there. That is, if a room is rented with the owner. In this case, the owner will be able to control the actions of the tenant, the condition of the property and demand timely compensation. Depending on the amount of damage caused, the payment can be divided into several months. But no matter what agreement the parties eventually come to, all this should be spelled out in the lease agreement.

Transfer by contract

A separate document regarding the payment of an insurance deposit when renting an apartment is not required, since it is not regulated in any way by legislative regulations. All clauses of the agreement relating to its introduction must be spelled out in the text of the lease agreement itself. If a deal is concluded without drawing up a contract, then neither party will be protected from fraudulent actions or bad faith of the other party, so they will not be able to demand anything from each other.

A transaction with the transfer of an apartment for temporary use at the legislative level requires:

The receipt of a sum of money can be recorded using a receipt or an act of acceptance and receipt of money.

Design rules

A deposit when concluding a deal with renting an apartment is a guarantee of the honesty of the parties, which is included in the contract. A clear amount of the deposit made is recorded in it digitally and verbally. If the transaction is concluded with the help of a realtor, then he also acts as a guarantor and signs the document. This obliges him to take part in further conflicts between the parties that may arise regarding damage to property, payment or return of the deposit amount. However, this is already included in the cost of realtor services.

The transfer of the deposit amount can be carried out in cash or through a bank. The second option is preferable, since the fact of payment will be confirmed by a receipt and a bank. When paying in cash, the owner of the apartment must personally or between the parties an act of acceptance and transfer of these funds must be drawn up. It is desirable to record the fact of payment in the contract itself.

Common mistakes

Often the deposit is used as rent for the last month of living in an apartment. For the tenant, this is not scary, but the owner of the home is threatened by the fact that he will receive the payment for the last month, and no one will compensate for the damage caused to him through his own fault. Some tenants may refer to the Civil Code, which states that the leased property must be returned to the owner in a condition that takes into account normal wear and tear, that is, they do not admit their fault and refuse compensation, explaining all this with natural wear and tear.

First of all, the security deposit is not a pledge and. Other names for this instrument do occur: for example, a security deposit, a security deposit. But it is important to understand that the differences from a deposit and an advance payment are significant, and misunderstanding of this difference can lead to conflicts at the end lease relations.

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

“When concluding a rental transaction and instructing apartment owners, we always say that the security deposit is a kind of refundable amount that can in no way be used as payment for the last month and is in no way connected with the rental deposit,” says Vadim Lamin, Head of Penny Lane Realty Luxury Apartments Leasing Department. - An insurance deposit is a certain contribution equal to one rental rate, which provides comfortable conditions for the homeowner in case 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 reverse acceptance and transfer of the apartment is underway, and here the insurance deposit that was kept by the owner of the housing pops up. At the act of acceptance and transfer, the owner inspects the apartment. The owner clarifies if everything is in order with furniture, repairs, phone bills, etc.” The amount of possible damage, refurbishment, and other costs to bring the apartment back to its original form is estimated. 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 full amount of the security deposit is returned to the tenant. Thus, the main purpose of the insurance deposit is to protect the interests of the owner of the property.

"It is more correct to call this species security deposit payments. Its meaning is to ensure the obligations of the tenant for the careful handling of the property of the landlord, - says Oleg Seregin, Deputy CEO AN DOKI. - It is charged in case of damage to the property of the landlord. Returned or not returned at the end of the rental period. The payment amount is calculated depending on the cost of furniture and household appliances. Sometimes it's more, sometimes it's less. Typically charged at 100% of the monthly rental fee.”

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

A pledge or deposit was originally called the amount paid by a potential tenant in confirmation of his obligation to rent this apartment before a certain period (a kind of “booking”). In this understanding, the deposit is not currently applied for rent, with rare exceptions. The wording "deposit - 1 month", which most often appears in advertisements for renting inexpensive housing, speaks specifically of the security deposit. „Insurance deposit for renting an apartment and security deposit for renting today - different names the same concept. The security deposit is taken at the time of the conclusion of the lease agreement and is usually equal to the monthly cost of the lease. The insurance deposit is never accepted as payment for the last month of living, it is not a 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.

Source: rentalhome.ru

• On the recognition of the contract of lease of real estate invalid.
• Obligation to conclude a real estate lease agreement.
• On the transfer of rights and obligations under the concluded contract.
• On the recovery of rent arrears Art. 309, 614 of the Civil Code and sanctions for non-payment or late payment of lease payments.
• About damages.

Security deposit - what is it?

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

The essence of the security deposit is the transfer by the tenant to the account of the landlord of the amount agreed upon by the parties. This payment covers 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 connected with the rental deposit.

This contribution covers damage to property if the damage is discovered at the end of the annual contract. When drawing up an act of acceptance and transfer, the owner inspects the apartment, determining whether everything is in order with the furniture and the state of repair, with payment of telephone bills, etc. At the same time, the necessary costs for bringing the apartment to its original appearance are estimated. These costs are deducted from the amount of the security deposit, and the rest 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 owner of the property.

You can call this type of payment a security deposit: with its help, the obligation of the tenant to carefully handle the property is secured. The calculation of the amount of damage is the business of the owner, who does not always accurately estimate the damage. It is a common practice that a monthly rent is charged for damages.