○ What is a security deposit and a deposit for an apartment when renting.
Collateral and deposit when concluding a rental transaction are concepts that have significant differences.
- “The fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a surety, an independent guarantee, a deposit, a security deposit and other methods provided for by law or agreement (clause 1 of Article 329 of the Civil Code of the Russian Federation).”
As follows from this law, a deposit is a guarantee amount that can be used to pay off a debt in the event of its formation. For example, it can be used as payment for the last month of accommodation .
As for the deposit, these are financial resources in the amount established by the parties (usually equal to the monthly payment). This is a kind of insurance for the landlord, which will compensate for damage to his property if it occurs. The concept of a security deposit is not reflected in the legislation; it is equivalent to a security deposit.
- “A monetary obligation, including the obligation to compensate for losses or pay a penalty in the event of a violation of the contract, and an obligation arising on the grounds provided for in paragraph 2 of Article 1062 of this Code, by agreement of the parties, can be secured by the contribution of one of the parties in favor of the other party of a certain sum of money (security deposit). A security payment can be used to secure an obligation that will arise in the future.
- If circumstances stipulated by the contract occur, the amount of the security payment is counted towards the fulfillment of the corresponding obligation (clause 1 of Article 381.1).”
○ How the deposit and collateral should be formalized.
Before transferring money, you need to make sure that there are no problems with its return in the future. To do this you need:
- Include in the contract a condition for making a deposit and/or a deposit.
- Transfer funds only with a receipt signed by the parties.
- Correctly carry out the reception/transfer of living space: Draw up an inventory of the property with a detailed list of what things and in what quantities are in the apartment.
- Draw up a transfer deed that records the actual condition of the property at the time of renting it out, and also indicates the data of all meters.
Such actions will help avoid conflicts when terminating the lease.
How to find out how much money I have on Sutochno.ru
Open the "Balance" page.
Your money is distributed across three accounts:
1. Bonus account. This is where we compensate you for your commission and award other bonuses. This money can be spent on Priority placement and prepayment.
2. Personal account. This is the money that you yourself contributed to Sutochno.ru. They cannot be withdrawn, but can be spent on Priorities.
3. Prepaid account. This is where the part of the prepayment that exceeds the commission goes. Money can be withdrawn or spent on Priorities and prepayment.
○ When the security deposit is returned.
The conditions for the return of insurance amounts must be provided for in the agreement. The parties may, at their own discretion, determine the circumstances under which funds will be returned, provided they do not contradict the law. However, there are general conditions that provide for the return of funds to the tenant.
Both the security deposit and the deposit must be returned to the tenant if:
- He promptly warned the apartment owner in writing about his intention to move out early (as a rule, this must be done a month in advance).
- Upon completion of the lease relationship, there are no mutual claims between its participants.
Do I need to make deductions from the advance payment?
Another controversial question is: is it permissible to withhold personal income tax from the advance payment, reduce it by the amount of alimony and make other deductions from the first part of the salary? Or should all deductions be made exclusively from the second part of the salary?
Strictly speaking, the employer does not have the right to withhold personal income tax until the end of the month, since the tax base has not yet been formed. This was pointed out by officials of the Russian Ministry of Finance in letter dated 02/05/19 No. 14-1/OOG-549 (see “The Ministry of Labor reminded how to calculate an advance and whether it is necessary to withhold personal income tax from it”).
It will also not be possible to reduce the advance payment by the amount of alimony, because alimony is withheld from the wages remaining after taxes are paid. From this we can conclude that the advance should represent a “net” salary for the first half of the month without any deductions.
But in practice, paying a “net” advance can lead to certain difficulties. This will happen if the employee does not work fully for the second half of the month, for example, if he quits or takes a long vacation at his own expense. Then the salary for the second half of the month will be very small or even zero. And since personal income tax was not withheld from the advance payment, and it will not be possible to withhold it when issuing salaries at the end of the month, then transferring the tax will become impossible. As a result, the employee will owe the employer, and the employer himself will owe the budget.
To avoid this, many employers make so-called reserve deductions from the advance payment. In amount they are equal to personal income tax and alimony, calculated from the salary for the first half of the month, although formally they do not relate to taxes and alimony. Such reserves do not contradict the law and allow you to avoid income tax debt.
Example 1
The employee's salary is set at 10,000 rubles. per month. According to the writ of execution, 25% per child is withheld from his salary. The employee did not file claims for standard deductions.
The company’s local regulations stipulate that the advance is equal to the salary for the time actually worked in the first half of the month. When issuing an advance, reserve deductions are made in an amount equal to the amount of personal income tax and alimony.
According to the production calendar, November has 21 working days: in the first half of the month there are 10 working days, in the second half of the month there are 11 working days. The employee worked fully for the first half of November. The accountant calculated that his earnings for the period from November 1 to November 15 inclusive are equal to 4,761.9 rubles. (RUB 10,000: 21 work days × 10 work days). Reserve deductions for personal income tax amount to 619 rubles. (RUB 4,761.9 × 13%). Reserve deductions for alimony amount to 1,035.73 rubles. ((RUB 4,761.9 − RUB 619) × 25%). Total reserve deductions are equal to RUB 1,654.73. (619 + 1,035.73). The advance for November amounted to 3,107.17 rubles (4,761.9 − 1,654.73).
Starting from November 16 and until the end of the month, the employee was on leave without pay. His earnings for the period from November 16 to November 30 amounted to 0 rubles. At the end of November, the accountant calculated and transferred personal income tax to the budget in the amount of 619 rubles, and also transferred alimony in the amount of 1,035.73 rubles according to the writ of execution. At the end of November, the employee received 0 rubles. (4,761.9 − 619 − 1,035.73 − 3,107.17 = 0).
Calculate wages with deduction of alimony and standard deductions for personal income tax
○ Actions in case of non-return of deposit or security deposit.
In all these cases, the lessor must return the money. But if he evades his obligations, he needs to know how to protect his rights. The course of action depends on the specific situation.
✔ If there is a lease agreement and receipt.
In this case, the tenant has the highest chance of returning the required money. The most extreme option is to go to court, which will most likely be on the plaintiff’s side. But if there is no possibility or desire to start a lawsuit, you can try to resolve the case pre-trial:
- Explain that if he goes to court, he will suffer more losses.
- If you suspect tax evasion, you can threaten to contact the tax office.
- Do not hand over the keys until the full amount has been received.
The transfer of the deposit and/or deposit prior to arrival must be confirmed by a receipt, which will be required to be presented in order to receive a refund. If it is not possible to resolve the case pre-trial, it is worth knowing the statute of limitations for filing a claim. Such a claim relates to general civil cases, and its statute of limitations is 3 years.
✔ If there is no lease agreement, but there is a receipt.
The receipt serves as proof that the funds were received by the counterparty. Therefore, even if a lease agreement has not been drawn up and signed, the owner of the apartment is obliged to comply with the legal requirements for the return of the security deposit or deposit amount.
In pre-trial proceedings, the issue can be resolved through negotiations. If there is no rental agreement, the likelihood that the owner of the property is hiding income from its rental is quite high. Therefore, you can try to explain to him that if he contacts the appropriate authorities, the amount of his damages will be significantly higher than the pledge or deposit.
If the case cannot be resolved pre-trial, you will have to turn to the courts. Among the evidence base for the illegality of the actions of the owner of the living space, the receipt occupies a fairly important place. The statute of limitations in this case is 3 years. The keys should not be given away until the issue is resolved.
✔ If there is no rental agreement and receipt.
In this case, the chances of getting the money back are the smallest, because there is no agreement regulating the rights of the tenant and a receipt confirming the fact of transfer of money. Most likely, going to court will not give a positive result due to the lack of evidence. Therefore, all the tenant can do is try to negotiate with the owner. A measure of influence could be the threat of going to the tax office, because most likely he does not submit taxes on rental income. There is no point in interfering with the police in this matter, because the effect may be the opposite. The tenant may be charged with trespassing on someone else's property without an agreement. You also cannot hold the keys, because due to the lack of an agreement and receipt, the tenant does not have the right to stay in the premises.
Therefore, if there are no evidentiary documents, the chances of returning the deposit or security deposit are zero.
Loan agreement
The second document that ensures the return of money on a debt is a loan agreement. It, too, as in the receipt, indicates the full name, passport details and registration addresses at the place of residence of the parties. The amount and term of the contract must be written down in numbers and deciphered in words. The conditions for full and partial early repayment are prescribed, as well as the interest rate on the loan. In the interest clause, it is recommended to indicate the conditions for a possible rate reduction if the money is returned before the due date.
Specialists in loan agreements recommend indicating the judicial authority to which the lender will contact if necessary.
One of the necessary items is the method of repaying the loan. Repayments can be made either in cash or by transfer to a card or current account. If the payment is non-cash, then the details for performing transactions are indicated.
The document must also record the fact of transfer of funds when this occurs in cash.
The loan agreement must have a section on penalties. It is necessary to indicate what penalties the debtor will be required to pay if the deadlines are violated.
For an agreement to have legal force, it must be signed in the appropriate form. If the loan amount exceeds 10 thousand rubles, then only written form is allowed.
Attention! When the interest rate is specified in the agreement, the lender will have to pay 13% income tax.
When signing a document, two witnesses may be present to confirm the transaction.
Notarization is also recommended. The presence of a notary at the transaction guarantees that the parties to the agreement performed their actions voluntarily and in a capable state. Accordingly, in the future the borrower will no longer be able to refer to the fact that he was forced to receive a debt or that he did not understand what he was doing.
In addition, the notarial form of concluding relations allows you to collect funds without involving the judiciary. If the lender does not receive the money within the specified period, he can contact the notary for a writ of execution. After putting down the appropriate mark, you can immediately contact the bailiffs.
○ What to do if the landlord is hiding.
If the owner of the apartment simply ignores the demand to return the due amount and does not get in touch, you need to act as follows:
- Draw up a deed of transfer unilaterally and send it to the place of registration by registered mail.
- Draw up a statement of claim, attaching a copy of the act and the shipping receipt.
- Provide the court with evidence of attempts to contact the owner of the apartment (testimonies of witnesses, sent messages on the phone).
If the landlord hides, this may also be regarded by the court as unlawful actions towards the tenant, which increases the likelihood of the latter winning. It is important to take into account that the statute of limitations in this case is also three years, so it is necessary to initiate litigation before the expiration of the specified period.
Is it possible to pay an advance in a fixed amount?
There is a lot of controversy about the question of whether it is possible to issue an advance in a fixed amount that does not depend on the actual time worked. Simply put, does the employer have the right to determine the amount of the advance as a percentage of the employee’s monthly salary.
Proponents of this method give the following arguments. Firstly, it allows you to calculate the time worked, calculate all additional payments due and make all the necessary deductions only once a month, which significantly saves the accountant’s effort and time. Secondly, this method corresponds to business customs, because most employers traditionally determine the amount of the advance as a percentage of the salary. Thirdly, there are official explanations from officials that confirm the legitimacy of this approach. In particular, the letter of the Ministry of Health and Social Development of Russia dated February 25, 2009 No. 22-2-709 states the following: “... with the advance method of calculating wages for each half of the month, wages should be accrued in approximately equal amounts...”.
However, the above method has many opponents. Their main argument is as follows. By law, wages must be paid twice a month. And wages are remuneration for work, which depends, among other things, on the amount of work performed (Article 129 of the Labor Code of the Russian Federation). It turns out that the advance, as well as the salary at the end of the month, must be calculated based on the actual time worked or the amount of products produced. This position is supported by officials from the Ministry of Finance (see, for example, explanations by experts of the Rostrud service “Online Inspectorate.rf”; “Indexation of wages, amount of advance payment, retention of accountable funds: read the latest explanations of Rostrud”). We also believe that this approach is correct.
For more information on this issue, see the article by lawyer Alexey Krainev, “Salaries under the new rules: how employers will have to change local acts and employment contracts.”
○ How the landlord can reduce the amount of the refundable deposit.
The conditions for the return of funds must be reflected in the lease agreement, but there are general requirements for this procedure.
The owner of the property is obliged to return the entire security deposit and/or deposit amount if the condition of the apartment has not changed during the rental period. In this case, the following conditions should be taken into account:
- Living spaces in general.
- Household appliances.
- Furniture.
- Communications.
The amount of refunded funds will be reduced according to the amount of damage caused to the lessor's property.
Thus, the deposit and collateral are conditions that are beneficial, first of all, to the owner of the living space, who is thus insured against possible damage. But just as the tenant has the obligation to provide these finances, the landlord is responsible for the timely return of advance and insurance payments.
