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Landlord Who Improperly Retains Deposit After Contract May Be Condemned to Return in Double and Pay Up to R$ 7 Thousand in Compensation, Courts Confirm.
The cash deposit is one of the most commonly used guarantees in rental contracts in Brazil. Provided for in the Tenancy Law (Law No. 8.245/1991, art. 38), it serves as a security reserve for the landlord in case of default or damage to the property. The amount is usually equivalent to up to three months’ rent, deposited in a linked savings account, with monetary correction.
Once the contract is terminated, if there are no outstanding debts or damages to the property, the landlord must fully return the deposit to the tenant, along with the earnings. When this return does not occur or is made partially without justification, it characterizes improper retention, which can result in double return and compensation for moral damages, as confirmed by Brazilian courts.
When the Retention of the Deposit Is Considered Illegal
The courts consider the retention of the deposit illegal in the following situations:
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- Rent and charges paid on time, with no record of debts;
- Property returned in good condition, with no significant damage;
- Absence of accounting by the landlord regarding applied discounts;
- Excessive delay in refunding the amount, even after the keys are returned.
In all these cases, the courts understand that the landlord cannot appropriate an amount that belongs to the tenant. Improper retention constitutes unjust enrichment and contractual failure.
What the Courts Say
There are precedents in several states confirming the tenant’s right:
- The TJSP condemned a landlord to return the deposit in double and pay R$ 5 thousand in moral damages, after retaining the amount for over a year without justification.
- The TJRS ordered a real estate agency to refund the deposit in double and pay R$ 7 thousand in compensation to a tenant, understanding that the delay constituted abuse and legitimate frustration.
- Decisions from the STJ also reinforce that double return applies when there is bad faith or improper charging, applying art. 42, sole paragraph, of the CDC.
These rulings show that improper retention is not just a breach of contract: it is an abusive practice that grants the tenant the right to full compensation.
What Compensation Can Be Applied
Condemnations vary by case, but generally include:
- Simple or double refund of the deposit, with monetary correction;
- Moral damages, set between R$ 3 thousand and R$ 7 thousand on average;
- Attorney’s fees and court costs, when the case goes to trial;
- In more serious situations, additional interest and fines.
The double return is applied when the court understands there was bad faith on the landlord’s part in retaining the amount. Moral damages are recognized when retention causes significant distress, such as preventing the tenant from using the money for new housing.
How the Tenant Can Act
The affected tenant should:
- Gather evidence: rental contract, payment receipts, inspection report, and messages exchanged with the landlord;
- Demand extrajudicially the return, by letter or email, keeping receipts;
- Register a complaint with Procon, reporting the improper retention;
- File in the Special Civil Court, requesting double refund and moral damages if the amount does not exceed 40 minimum wages.
The process is usually swift, as the jurisprudence is already consolidated in favor of the tenant.
A Clear Message to the Rental Market
Recent judicial decisions make it clear: landlords and real estate agencies cannot retain the deposit at the end of the contract without just cause.
When this occurs, the tenant is entitled to a double return and compensation for moral damages, with amounts that have reached R$ 7 thousand.
More than punishing individual abuses, these condemnations have a pedagogical effect: they remind that the rental contract is a two-way street, where the law protects both the rights of the owner and the dignity of the tenant.
Até que enfim esses caras resolveram trabalhar, oque mais tem é esses caras que lucram retendo calção sem motivos nenhum
Qual o prazo para propor ação de cobrança ou restituição da caução após o término do contrato?