A very common and discussed topic among unit owners is that of damages found at the end of a lease caused by poor maintenance in addition to deterioration of the property itself. For this reason, many people wonder what tools are available to protect the landlord but also the tenant and how duties and responsibilities are divided.
In this article we will look in detail at what the critical issues on the return of the rented property may be and what to do.
When a contract reaches its expiration date there is an obligation of the tenant to return the property to the landlord in a good state of repair according to the provisions of Article 1590 of the Civil Code. As a general rule, let us recall that the property should be returned by the tenant in the same condition in which it was handed over to him by the landlord, considering its natural deterioration.
In fact, it is always a good idea for the parties at the end of the contract to check that the condition of the house matches that which existed at the beginning of the lease. For this reason, a handover report, perhaps accompanied by a photographic report, is usually filled out at the conclusion of the contract, listing any pre-existing damage, breakages and defects. In some situations it may be the case that when a property is returned it has some problems and therefore its condition is different from when it was received.
However, it is important to distinguish the types of damage and situations that could occur. The asset may have deterioration due to use, or a failure to carry out maintenance work for this may be significantly damaged.
WHAT HAPPENS IF THERE IS DAMAGE TO THE LEASED PROPERTY ON RETURN?
There is a rule that if there is talk of deterioration or consumption resulting from the use of the thing, the tenant has no obligation to return the apartment in the state in which it is delivered to him. Another situation that is excluded among the cases of liability borne by the tenant is that of deterioration resulting from old age.
Thus, if the damage occurred due to unavoidable and unforeseeable events, the tenant cannot be held liable if:
- are due to normal aging of the property such as yellowing of upholstery, traces of furniture or paintings on the walls, and the presence of a few small holes in the walls;
- the damage that resulted in the destruction or deterioration is accidental or not his fault, think of the case of a fire due to causes unrelated to the tenant.
While the above cases do not entail any kind of liability for the tenant, outside of these cases, the tenant may be held liable for loss and deterioration that occur during the course of the lease.
FINISHED LEASE AND DAMAGE TO THE LEASED PROPERTY FROM MINOR MAINTENANCE
As a result of minor maintenance damage, the question is often asked whether the landlord has the right not to take delivery of the property. In the course of the tenancy, the tenant is responsible for bearing the costs of minor maintenance, and is also obliged not to aggravate the situation and adopt diligent behavior. In fact, minor maintenance of the property is the responsibility of the tenant as the second Article 1576 of the Civil Code states. For example, reference is made to ordinary maintenance work in order to avoid the deterioration that could result.
All this has a purpose, which is to limit damages. However, the owner is obliged to receive the property even in the absence of repairs, cannot refuse to return the keys if the damage is limited to minor maintenance work, and can only claim damages.
DAMAGES
In the case of arriving at damages one of the first things to do is to prove the tenant's default, that is, that the property was returned in a different manner from how it was given to the tenant. This is not sufficient, however, as the damage suffered to the property must be demonstrated at the time the property is returned by the tenant.
It is necessary to provide what is the economic injury, that is, proof that there are indeed injuries to the property. It will then be up to the tenant to prove, through releasing evidence, that the damage was produced by normal use of the property and degradation.
Several situations may arise in the case of serious damage. First and foremost, for example, the landlord may refuse to hand over the property until the tenant pays him damages. Then, according to Article 1591 of the Civil Code, what is called default will be triggered with the obligation to pay rent after the date of redelivery of the property.
THE REDELIVERY REPORT
How then to protect both parties? Without getting too much into technicalities, let's say that a record of redelivery of the property may be sufficient.
The record of property redelivery is a private writing entered into between landlord and tenant. The law does not prescribe a template, so it can be drafted as preferred by the parties. The important thing is that the minutes contain some essential information, which we list:
- The details of the tenant, landlord and the property
- Painting the apartment before its return
- Condition of each of the rooms (kitchen, bathroom, living room, bedroom)
- condition of any outbuildings (garage, garden, basement, terrace)
- floors and their condition
- information on the condition of the masonry
- state of fixtures
- All details about the heating, air conditioning, electrical, gas and sanitation systems
- telephone and internet system information
- status of the intercom and television antenna
- readings of all meters (water, gas, electricity)
This information is useful in understanding and documenting whether or not the apartment has been kept in good condition.
If you choose to use a property redelivery report, our recommendations are as follows:
before signing the contract, document the state of maintenance of the apartment by taking photographs of each room and the meters and attach a writing to the contract describing the state of maintenance of each room and the system as well as indicating the readings of each meter as well.
These entries will be useful at the end of the contract to verify the actual good condition of the property.
It should be remembered that if these precautions are not taken, the property is presumed to be "in good condition" both at the time of delivery and at the time of return. So in the event of any damage, there will be no recourse against the tenant by withholding the deposit. Once the record of redelivery is signed, the security deposit must be returned if the apartment is in a state similar to what it was in at the beginning of the contract. Please note: similar state and normal wear and tear are two different concepts. If you rent an apartment for six years, it is normal for the heating system to be aged. If the apartment has wooden fixtures, it is likely that after years the wood will start to deteriorate, just to give two common examples. These situations cannot be blamed on the tenant, but on the normal obsolescence of all systems and materials. Thus, the tenant's deposit cannot be retained to repair damage caused by the passage of time, a factor that obviously cannot be blamed on the tenants. The tenant has only the obligation to keep the apartment in good condition. It is possible to withhold the deposit only to cover obvious damages caused by your tenant, if these damages can be documented by means of the record of the property's redelivery, but also by photos, lists or other documents prepared before the apartment was handed over. Otherwise, the deposit will always have to be returned. Finally, consider that, in case of damage, no part of the deposit can be retained without the tenant's favorable opinion, who has the right to have the damage estimated in order to receive an objective assessment of the damage found.
RENTAL RISK POLICY
Another tool to protect tenant and landlord is the rental risk policy.
Rental risk is derived from the article in the Civil Code that requires the tenant to return everything he or she has received under the lease in the same condition as it was at the time of the lease. This means, as stated earlier, that if a person enters an apartment for rent, at the end of the term he must leave it in the same condition as when he received it.
Rental risk insurance shields the tenant from any direct claims against the landlord because if a property suffers damage such as fire, bursting, water spillage and others, again due to the tenant's fault and during the term of a lease, he or she is fully liable and must pay compensation. By taking out rental risk insurance, the tenant shields himself from having to pay for the damage himself.
We hope the information we have given you in this article has been helpful to you but if you want some more advice please call us at 0583997201 or email us at info@marcocatelli.it , we will get back to you as soon as possible!
