We moved to the regional center. We plan to build a successful career. We rented an apartment. In the process of completing the rental transaction, we entered into an official agreement and made payment. This was not only the amount for three months of rent, but a security deposit. This is what will be discussed in this article. After reading the note, you will learn:
- What is a security deposit?
- How is the amount stated in the agreement?
- In what situations is it used?
- What problems does it solve?
- What to do if payment is refused.
Concept of insurance payment
A security deposit when renting premises is a guarantee that the property owner receives. He can be sure that the tenant will strictly follow the terms of the agreement.
The amount of such payment may vary. More often it is equal to three monthly rental payments. The citizen renting the premises transfers funds to the owner. They are returned after the full expiration of the official agreement. Refunds are also provided in case of early cancellation of the contract. If the tenant violates the specified conditions, if he causes damage to the property, the payment is not refunded.
Basic Concepts
A monetary obligation, which one party undertakes to provide to the other party as security for obligations assumed, can be provided even for those obligations that arise only in the future. This definition is enshrined in Article 381.1 of the Civil Code of the Russian Federation, answering the question of what a security deposit is.
If certain circumstances occur, the party who received the security payment (SP) has the right to offset the funds against the fulfillment of the obligations for which the funds were received. Consequently, such a tranche acts as a deposit made to the creditor’s current account, from which funds can be withdrawn in favor of fulfilling accepted obligations.
A security deposit as a way to ensure the fulfillment of obligations is often used when concluding lease agreements. For example, the tenant agrees to pay monthly rent to the owner of the property. If the monthly tranche is not received on time, the lessor has the right to write off unpaid obligations from the deposit. The lessor also has the right to write off the cost of damaged property, if such was provided for in the lease agreement.
Payment designation in documents
During the process of renting and renting real estate, a special agreement is drawn up. It is drawn up in a standard form. But at the same time, you can make edits and individual sections there.
If the property owner plans to receive certain guarantees in the form of payment, he must indicate this in the agreement.
Payment information is specified in the following information points:
- Amount of payment.
- The period during which the tenant is obliged to transfer funds. The payment option is also specified - in cash or by card.
- It must be stated that the amount, if necessary, will be used to cover financial losses caused by the fault of the lessor.
- Information is written that after the official cancellation of the lease agreement, the property is inspected by the owner. Based on the results, a decision is made whether there is property damage.
- Possible situations are listed when the lessor has the right not to return and use the payment.
- Cases are indicated when the amount of this guarantee is reduced or increased.
- The deadline for the return of the amount upon cancellation of a previously concluded contract is specified.
Based on this information, it becomes clear that the payment ensures the protection of property and the safety of the premises as a whole.
Security deposit in the lease agreement
In order for it to be presented correctly, the following points must be taken into account:
- The procedure for making contributions to the security deposit.
- The amount of the security amount and the procedure for increasing or decreasing it.
- Rules for returning the security amount to the tenant.
- Situations in the event of which funds from the collateral will be withdrawn to cover losses (costs).
- Deadline for transferring the guarantee amount to the lessor.
The amount of the guarantee payment is established by agreement of the parties; the legislator does not regulate it in any way.
For example, if this amount is used to pay for the last month of a lease agreement, it is usually equal to one month's lease payment.
The security payment can also be established in the form of a certain fixed amount. The more carefully the terms of the guarantee payment are spelled out in the contract, the less likely it is that disputes and disagreements will arise between the parties.
point 4.
When is it appropriate to use a payment?
It is recommended to use a standard security deposit in the following situations:
- Real estate with quite expensive property is leased - furniture, modern equipment and other valuables.
- The owner doubts the integrity of the tenant.
- Formation of an agreement for a sufficiently long period.
The availability of payment, its transfer and return are agreed upon by the two parties to the transaction. This is an important point, since not many tenants like the requirement associated with the transfer of three months' rent.
Security deposit and VAT. Theory
The level of tax risks will be reduced if the basis, procedure for using and returning the security are specified in detail in the contract.
De facto, the security payment, which was called guaranteed, was used until 2015. This gave rise to ambiguity in law enforcement practice. 4 years have passed since the appearance of the legal structure in the Civil Code of the Russian Federation. The established position on VAT on a security deposit can be considered the opinion of the Ministry of Finance, which expresses:
- Letter of the Ministry of Finance of Russia dated December 28, 2018 N 03-07-11/95829
- Letter of the Ministry of Finance of Russia dated February 11, 2019 N 03-07-11/8176).
The occurrence of an obligation to charge VAT on a security deposit depends on the type of transaction. Receipt and return of security without subsequent offset as payment under the contract does not require VAT.
If the tax office can prove that the security is related to the sale, i.e. is counted towards payment for goods, works, services, then they will try to charge additional tax (Letter of the Ministry of Finance dated November 3, 2015 No. 03-03-06/2/63360). For example, a security deposit for the last month of rent often qualifies as an advance. Moreover, they can use sub. 2 p. 1 art. 162 of the Tax Code, which causes difficulties for both parties to the lease agreement with deducting accrued VAT.
Money deposit tasks
Despite the fact that many tenants do not like to pay the payment, you should not neglect to include it in the terms of the lease. This financial guarantee can solve several problems:
- If property is stolen or damaged, losses can be compensated;
- Used as a regular rent payment if the landlord is late in payment;
- Can be applied as sanctions in case of violation of the rules for the use of personal property.
Funds transferred in advance will save you from legal proceedings if you need to reimburse expenses. The funds are already available and you don’t have to worry about claiming them.
According to Art. 381.1 of the Civil Code of the Russian Federation, other valuables are used as a standard security payment. But in practice, it is money that is most often used.
Transferring the security deposit to a new contract | Practicing lawyer
The interaction of a company or organization with its counterparties (suppliers and customers) is carried out in the context of contracts. It appears that Article 381.1 of the Civil Code of the Russian Federation does not correlate it with the offset under Article 410 of the Civil Code of the Russian Federation. For example, article 381.
1 of the Civil Code of the Russian Federation does not indicate that such “counting” should occur with any notification from one party to the other.
However, without such notice, it is impossible for the second party to guess whether the security payment was counted or not, and to challenge in a timely manner if this was made in violation of the rights of the party that provided the security payment.
The payment function of the deposit and security payment does not arise immediately
The Contractor assumes the responsibility to hold the event under pre-agreed conditions (place, time, program, cost), and the Customer undertakes to take part in it and pay for it.
In fact, the moment of execution of the agreement occurs when the parties sign the certificate of completion of work.
In this case, the question may arise about the fulfillment of warranty obligations, if any, in accordance with the terms of the agreement.
There are also directly opposite decisions, which, from our point of view, do not reflect the nature of the security deposit. For example, in the Resolution of the Ninth Arbitration Court of Appeal dated July 4, 2016, two articles of the Civil Code of the Russian Federation are devoted to the security payment.
The legislator defined such a payment and listed its main features.
A security payment is the payment by one of the parties to an obligation in favor of the other party of a certain sum of money, which ensures the fulfillment of the monetary obligation, including the obligation to compensate for losses or pay a penalty in case of violation of the contract (clause 1 of Article 381.1 of the Civil Code of the Russian Federation).
The rules on security payments also apply to cases where shares, bonds, other securities, as well as things defined by generic characteristics to be transferred under the secured obligation are paid as security (Article 381.2 of the Civil Code of the Russian Federation). A security deposit can also be provided to secure a future obligation.
Between LLC "__" and LLC "__" an agreement No.____ dated December 13, 1___ was concluded for the lease of non-residential premises located at Moscow, ___floor_ office __, with a total area of 16 sq. m. According to the above agreement, LLC "__" transferred to the account of LLC "___" a security payment in the amount of 26,000.00 rubles. The contract expired on November 30, 2014.
In other cases, a letter is drawn up to transfer the payment amount to a specific agreement.
Without such a letter, the recipient has all the rights to credit the payment to the obligation, the due date of which occurs earlier (clause 3 of article 319.1, clause 3 of art.
The transfer of payment to another contract is formalized in the form of a bilateral agreement. However, you can limit yourself to only a letter from the payer.
It is necessary to note that the executor has the opportunity to gradually return the money that was contributed as a guarantee. This right is provided for in Article 96 of the Law on the Contract System in the Field of Procurement.
The plaintiff’s reference that the security amount is set at the same amount for the entire term of the contract and is not subject to reduction due to changes in other terms of the contract is rejected by the court, since it contradicts the legal position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/11/2014 N 13846/13, according to which the condition of the contract on the provision of one party to the contract, significantly exceeding the counter provision, may indicate unfair behavior in accordance with Art. 10 of the Civil Code of the Russian Federation."
If circumstances stipulated by the agreement occur, the amount of the security payment is counted towards the fulfillment of the corresponding obligation (paragraph 2, clause 1, article 381.1 of the Civil Code of the Russian Federation). For example, a creditor can set off a security payment against the debt for payment for goods (including a penalty - this is expressly stated in the law), and compensate for losses from it.
One of the questions that suppliers ask when they enter into a contract with an obligation to provide security for its performance is the question of getting back the money they contribute as a guarantee. The return of contract performance security under 44 Federal Laws must be indicated by the customer in the draft contract, as well as in the specified agreement itself.
The original debtor, under a preliminary lease agreement with a future tenant, is constructing a building, and a security payment has been received from the future tenant. The object is not completed, and the original debtor, under the purchase and sale agreement, transfers the land plot and the unfinished building with a total value of 1,000,000 rubles.
After making the security payment, the Contractor is not obliged to additionally inform the Customer, except in cases of a significant change in the terms of the Agreement (date, time, place have changed...).
It should be remembered that the security payment is not a kind of “fine”, the amount of which the debtor loses in case of violation of contractual obligations (as a penalty). The payment amount serves to cover debts and property losses. This is precisely what follows from a literal reading of paragraph 1 of Art. 381.
1 of the Civil Code of the Russian Federation, which states that the payment serves as security for the fulfillment of an obligation and that this amount is counted towards the repayment of such an obligation (and is not collected in excess of the amount of losses or debt).
Based on clause 3 of Art. 429 of the Civil Code of the Russian Federation, the preliminary agreement must contain conditions that make it possible to establish the subject matter, as well as other essential conditions of the main agreement. If obligations are properly fulfilled by both parties, the security payment in full is counted as full or partial payment under the contract.
A security payment is not a revolutionary way to secure obligations - this method of security was in demand in practice before, since participants in transactions could use any security, including those not specified in the law (clause 1 of Article 329 of the Civil Code of the Russian Federation). The supplier can reduce the amount of security in proportion to the fulfilled obligations under the contract, that is, receive part of the funds even before the contract is fully executed.
A security payment can also ensure the fulfillment of obligations from various derivative transactions concluded by professional market participants (clause 2 of Article 1062 of the Civil Code of the Russian Federation). We are talking about transactions that are concluded under a condition (for example, to complete a transaction in the event of an increase in foreign currency) and the subject of which is, as a rule, securities.
It seems that clarification is required from the Supreme Court of the Russian Federation in order to eliminate the existing uncertainty and allow the parties to directly agree in the contract on the amount of security, which should not automatically decrease when the amount of the main obligation decreases.
In accordance with paragraph 1 of Art. 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement.
This provision governs the relationship between clients (hereinafter referred to as the Customer) and Pirogi-Nsk LLC (trademark "Culinary Club") (hereinafter referred to as the Contractor) in terms of the obligation to compensate for losses or pay a penalty in case of violation of the offer agreement concluded in ...form.
Since the original debtor received a security payment with an allocated amount of VAT, calculated VAT to the budget, and the new debtor, when signing the act of offset, also calculated VAT to the budget, we believe that the amount of the security payment to be transferred to the new debtor should be indicated in the act of offset and in the agreement on the transfer of debt , with an allocated amount of VAT. Based on the results of conversations/correspondence, a preliminary reservation for the event can be established, which will remain for 3 (three) days. If the security payment is not made at this moment, the reservation is canceled and the day is returned to sale.
When the question arises about the return of contract security under 44 Federal Laws, the timing of receipt of money is the first question that arises before the supplier. The deadlines are determined by the customer based on when the supplier fulfills all obligations under the contract. The preliminary agreement only fixes the obligations reached by the parties on significant issues regarding the conclusion of the main agreement in the future.
We make a security payment according to the preliminary agreement
The payment made is credited by the recipient to the agreement that is specified in the purpose of payment in the payment order, or the payment is made on the basis of an invoice presented under a particular agreement (field number 24). A situation is possible when the counterparty immediately sends a notification after payment (if the purpose of payment does not indicate the account or contract number, but says, for example, “for goods”, “services for...”) (clause 1 of Art.
Source: https://uk54.ru/nasledstvennoe-pravo/5157-perenos-obespechitelnogo-platezha-na-novyy-dogovor.html
Determining the amount
If the parties reach a compromise on the issue of applying material security, its amount is determined. During the calculation process, the following factors are taken into account:
- Amount of monthly rental payments. Usually triple payment per month is taken.
- An arbitrary amount can be set. If the tenant is against it, he should simply refuse to sign the agreement.
Questions regarding the amount and rules for transferring the security deposit must be agreed upon by the parties.
Collateral requirements
Payment for security is not just money, but a legally justified point. Each such payment must meet the following requirements:
- The main purpose is to cover losses caused by the tenant and compensation for violations and damage;
- If the tenant did not spoil anything and did not violate the terms of the contract, the transferred amount is returned to him in full;
- If minor violations and minor damage are detected, only part of the deposit can be returned. From the total amount, the owner will deduct the amount necessary to cover losses.
The participants in the lease agreement themselves decide in what order the amount will be transferred. Regardless of the decision made, all conditions must be documented.
Refusal to return payment
Landlords are not always honest and conscientious citizens. During the period of use of the property, the tenant could pay money on time, handle the furniture and equipment correctly, but the landlord does not want to return the deposit. Invents non-existent reasons and circumstances for this.
On this basis, certain disagreements arise. They can be eliminated in a pre-trial settlement or the problem can be resolved through court. Each option is worth considering in more detail.
Pre-trial settlement
Going to court to request a security deposit is an extreme measure that requires time and money. If it is not possible to reach a verbal agreement, the parties should try to resolve the problem in the usual administrative manner.
In this case, an official claim is drawn up in the name of the owner of the property and real estate. It is submitted to him for consideration and decision.
The document can be delivered in person or sent by mail. You must have proof of transfer of the claim. In the first case, these are witnesses in front of whom it is worth making the delivery. In the second, you can use a postal receipt. You need to wait for a response from the owner within 30 days. If it is not received or a negative answer is received, you will have to go to court.
Pre-trial settlement is a mandatory procedure. Without proof of its implementation, the court will not accept the claim.
Going to court
If drawing up and sending a claim does not yield a positive result, you can go to court. To do this you need to write a claim. It should contain the following information:
- Name of the court.
- The plaintiff's demands are to recover the due payment from the owner of the premises.
- Essential terms and requirements of the lease agreement.
- Evidence that the conditions have been met.
- The validity period of the lease and contract is indicated.
A copy of the agreement must be attached to this document. A copy of the complaint must be attached as conclusive evidence of an attempt to resolve the issue out of court.
After preliminary consideration of the claim, a court date is set. The evidence presented by the parties to the proceedings is reviewed here. The more facts are presented, the faster the proceedings will end. The tenant will receive the due payment.
If the landlord refuses to comply with the will of the court, bailiffs are involved in the case. They can claim the required amount through withdrawal of funds from the account, seizure and sale of property.
