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Necessary Repairs, Such as Fixing a Roof, Are Compensable Even Without Prior Owner Approval, but the Tenancy Law Hides a Trap About the Payment Method.
Many tenants are unaware of a crucial detail of the Tenancy Law (Law No. 8.245/91): the performance of necessary improvements, such as the urgent repair of a roof or a serious leak, guarantees the right to 100% reimbursement, even if the owner did not authorize the work in advance. This right is explicitly provided for in the legislation, aiming to protect the integrity of the property and its habitability.
However, the manner in which this reimbursement is demanded hides a risk that may lead to eviction. The idea that a tenant can simply “deduct” the amount spent from rent is a dangerous misconception. The legislation, cited as the main source for this matter, defines correct paths for compensation and the right of retention, and ignoring them can configure contractual delinquency.
What Does the Law Classify as Necessary Work?
Before demanding any reimbursement, it is vital to understand the distinction made by the law. The Civil Code (Law No. 10.406/2002), which acts complementarily to the Tenancy Law, is clear. Article 96 of this code defines necessary improvements as those that “aim to preserve the property or prevent it from deteriorating.” They are, therefore, essential and often urgent interventions intended to maintain the property’s usability.
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Classic examples include repairing a roof with leaks, fixing structural leaks in plumbing, or replacing compromised electrical wiring at risk of fire. They differ drastically from useful improvements (which enhance or facilitate use, like installing security grills) and luxury improvements (merely for luxury or aesthetics, like building a pool). According to the definitions in the Civil Code, only necessary improvements receive this special reimbursement treatment even without prior authorization.
The Right to Reimbursement vs. the Myth of Rent Discounts
The tenant’s central right is in the Article 35 of Law No. 8.245/91 (the Tenancy Law). The text states that, “unless there is an express contractual provision to the contrary,” necessary improvements, “even if not authorized by the landlord”, will be compensable. The law assumes that, as this is something essential for the preservation of the property, the tenant cannot be held hostage to the owner’s inertia or delay.
This is where the greatest danger and the main source of misinformation lie: the Tenancy Law speaks of “compensation” (the right to be paid back) or “right of retention” (to remain in the property until paid), and not of “discount” or “unilateral compensation”. A tenant who, on their own accord, decides to deduct the cost of the work from the rent amount is, in the eyes of the law, simply delinquent.
This action, as experts warn based on the legislation, is a serious contractual violation. The landlord, even owing the amount for the work, gains an uncontestable legal basis to file an eviction action for non-payment. The tenant, although having a legitimate credit for the work, can lose possession of the property by attempting to collect it in the wrong way. The correct method is to negotiate a written agreement with the landlord or, as a last resort, seek a collection action in court.
The “Fine Print” of the Contract: the STJ Summary 335
The right to reimbursement for necessary works is not absolute. Article 35 of the Tenancy Law, which guarantees reimbursement, begins with a crucial caveat: “Unless there is an express contractual provision to the contrary…”. This means that the lease agreement may, and often does, include a clause where the tenant expressly waives this right.
This practice is so common in the market that the Superior Court of Justice (STJ), the highest court for interpreting federal legislation, has validated its legality. STJ Summary 335 explicitly states: “In lease agreements, a clause waiving compensation for improvements and the right of retention is valid.” Therefore, if the tenant signed a contract containing this clause, they lose the right to be reimbursed, even for urgent and necessary works.
How to Act Correctly to Ensure the Reimbursement
When faced with an urgent structural problem, such as a serious leak in the roof, the tenant should not simply hire the service and stop paying rent. To ensure their rights safely, the correct protocol involves rigorous communication and documentation.
The first step is to formally notify the owner or the real estate agency. Legal prudence recommends using means that generate proof of receipt, such as emails, extrajudicial notifications, or even messaging applications (provided that receipt is confirmed). The notification should describe the problem in detail and request a reasonable deadline for resolution.
If the landlord does not act and the tenant needs to carry out the urgent work, documentation is their greatest ally. It is essential to keep photos and videos of the problem before the repair, collect at least three quotes from different professionals (to prove the reasonableness of the price), and, most importantly, demand official invoices for all materials and services. Simple receipts have much lower evidentiary value.
With all the proof in hand, the tenant should formally present them to the landlord and negotiate the compensation. Ideally, a written agreement should be made. This agreement may provide for a one-time payment by the landlord, installment payments, or, indeed, a scheduled deduction from future rents. If this compensation is agreed upon, it must be included in a contractual amendment signed by both parties to have legal validity.
The Tenancy Law offers robust protections to tenants to ensure the habitability of the property, including the right to be compensated for urgent works. However, this protection depends on following the correct procedures and, above all, on the careful analysis of the contract, which can nullify this right. Acting impulsively and withholding rent is the fastest way to turn a right into an eviction action.
Have you ever been in such a situation? Do you think this rule of the Tenancy Law is fair to both owners and tenants? Leave your opinion in the comments; we want to hear from those who live this in practice.
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