In many cases, rental contracts are signed without a full understanding of the clauses included in them, the rights and obligations of the parties involved, or the legal figures involved, such as the rental mandatory deposit “fianza” and the security deposit “depósito”.

This lack of knowledge often leads to questions and confusion, resulting in legal abuse, conflicts and a lack of mediation or negotiation, sometimes leading to recourse to the courts.

Features of rental mandatory deposit “fianza”

According to article 36 of Ley de Arrendamientos Urbanos 2/1994, “it will be mandatory to request and provide an amount in cash as Fianza.

The purpose of the mandatory deposit “fianza” is to ensure that the tenant complies with the obligations set out in the contract.

The “Fianza”  must be paid to the owner or landlord at the time of signing the contract.
In addition, the first month’s rent or months agreed in the contract must be paid.

The landlord is obliged to deposit it with the corresponding regional authority within 30 days. In the Community of Madrid, this is the Instituto de la Vivienda de Madrid (IVIMA).

It is important to note that if this requirement is not met, the IVIMA may impose more severe penalties.
The penalty for depositing the “Fianza” outside the stipulated period is 2% of the amount of the mandatory deposit.

How much does a rental mandatory deposit amount to?

The Ley de Arrendamientos Urbanos 29/1994 establishes that the amount to be paid as a mandatory deposit “fianza” varies according to the purpose or rental type.

In the case of permanent housing for a period of between 3 and 5 years (with the possibility of extension), the amount of “fianza” is equal to one month’s rent.

For other types of rental accommodation, or rental of a commercial or office space, the amount will be two monthly payments.

The law stipulates that the mandatory deposit “fianza” is not subject to increase during the first five years of the contract, or during the first seven years if the landlord is a legal entity.

However, each time the contract is renewed, the landlord can request an increase in the “fianza”, or the tenant can request a reduction.

When does the “fianza” have to be returned?

The legal period for returning the mandatory deposit is one month. From the moment the keys are handed over to the owner, the owner has a maximum of 30 days, or 45 days if IVIMA delays the return.
Although it is not common, it does happen.

If the landlord does not return the deposit within the specified period without a valid reason, interest will be charged.

¿When is the deposit partially or totally lost?

  • Property damage. If the property is not in the condition in which it was handed over at the beginning of the contract, e.g. scratched walls, stained floors, broken glass, etc.
  • Failure to pay rent. Initially, the mandatory deposit should not cover non-payment of rent.
    However, if there is non-payment of rent and there is no damage to the property or other outstanding debts, or if the tenant leaves before six months have been passed from the signing of the rental contract or before it expires, the rent will be charged against the mandatory deposit “fianza”.
  • Failure to pay other expenses. This includes costs related to the consumption of electricity, utilities such as gas and water, or taxes passed on to the tenant.

If the landlord does not return the “fianza” without a legitimate or justified reason, the solution is to go to the competent court, file a lawsuit and wait for the judge’s decision.

The concept of mandatory deposit “fianza” is often confused with security deposit “depósito”, although they are different, despite some similarities.
We recommend that you read about the difference between mandatory and security deposit.

DFLAT requires a minimum “fianza”

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