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Signing a Rental Agreement May Seem Simple, But Small Oversights Can Be Costly.
Even with the Protection of the Tenancy Law, It Is Still Common to Find Illegal Clauses That Impose Abusive Charges and Put the Tenant at a Disadvantage. Knowing These Contractual Traps Is Essential to Avoid Losses and Ensure a Secure and Balanced Agreement.
Signing a rental agreement seems like a simple task, but it involves specific legal rules that many are unaware of.
A small oversight can put the tenant at a disadvantage and generate abusive charges during or at the end of the lease.
The Tenancy Law (Law No. 8.245/1991) ensures a series of rights and duties for both parties.
And, among them, expressly prohibits certain practices that still frequently appear in contracts.
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Now, let’s look at the five most common clauses considered illegal and understand exactly what the law says about each one.
1) Double Guarantee: Prohibited by Article 37 of the Tenancy Law
One of the most frequent irregularities is requiring more than one type of guarantee in the same rental contract.
The Article 37 of Law No. 8.245/91 allows the landlord to choose only one among the types provided: caution, guarantor, rental security insurance, or fiduciary assignment of investment fund quotas.
The sole paragraph of the article is clear:
“It is prohibited, under penalty of nullity, to require more than one type of guarantee in the same rental contract.”
In other words, if the contract requires, for example, both caution and a guarantor at the same time, this clause is null and has no effect.
This rule exists to prevent the tenant from being overburdened and having their access to housing restricted by excessive demands.
2) Rent Adjustment Linked to Minimum Wage or Foreign Currency: Prohibited by Article 17
Another common mistake is tying the rent value to prohibited indicators, such as minimum wage or foreign currencies (dollar, euro, etc.).
The Article 17 of the Tenancy Law establishes that the rent can be freely negotiated, but prohibits its linkage to exchange rate fluctuations and the minimum wage:
“The rent agreement is free, but its stipulation in foreign currency and its linkage to exchange rate fluctuations or the minimum wage is prohibited.”
Thus, the contract can provide for an adjustment index, but only through official monetary correction indices, such as IGP-M or IPCA.
Tying the rent to prohibited indicators results in unpredictable and unbalanced increases — and renders the clause null.
If there is such a provision in the contract, the tenant can challenge it in court and demand that the adjustment follow a permitted index.
3) Transfer of Landlord Obligations: Only Possible If There Is an Express Clause
Another point that causes confusion is who must bear certain expenses of the property.
The Article 22, item VIII of the Tenancy Law is clear: it is the landlord’s responsibility to pay the taxes and fees related to the property, as well as the premium for supplementary fire insurance.
However, the same provision stipulates that this rule applies unless there is an express contrary provision in the contract.
In other words, by default, these costs are the landlord’s, but the parties can agree that the tenant assumes these expenses — provided that this is clearly stated in the contract.
The administrative fee of the real estate agency also often raises questions.
Since it is an expense of the service contracted by the owner, the courts understand that this fee should be paid by the landlord, unless there is an express agreement stating otherwise.
Therefore, clauses that transfer these obligations to the tenant without an express provision are considered abusive.
If there is a clear clause accepted by both parties, however, it becomes valid.
4) Obligation to Paint the Property at the End of the Contract: Only If There Is Damage or Color Change
It is also common to find clauses that impose the obligation on the tenant to paint the property at the end of the lease.
But the Article 23, item III of the Tenancy Law determines that the tenant must “return the property, once the rental period ends, in the state in which it was received, except for deterioration resulting from normal use”.
In other words: if the property is in the same condition it was delivered, and the wear is only natural, there is no obligation to repaint it.
Painting can only be required if there is change in the original color or damage that exceeds normal use, duly proven.
Therefore, the initial inspection and the exit inspection are essential.
If the reports show that the property’s condition is the same, the painting charge will be considered abusive.
5) Disproportionate Fines for Early Termination: Must Be Proportional to Remaining Time
Every rental agreement can provide for a fine in case of non-compliance, but this penalty must comply with Article 4 of the Tenancy Law.
This article guarantees the tenant the right to return the property before the deadline, as long as they pay the agreed fine proportionally to the remaining time of the contract.
For example: if the contract is for 30 months and the tenant leaves after 15 months, the fine should be reduced by half.
Charging the full amount is abusive and can be challenged in court.
The law’s objective is to prevent the fine from becoming a source of unjust enrichment for the landlord.
Therefore, any disproportionate penalty violates the contractual balance and can be annulled.
Knowing Your Rights Ensures Fairer Contracts
These five clauses frequently appear in rental agreements, but contradict clear provisions of the Tenancy Law.
Identifying them before signing is essential to avoid future problems.
In summary, the law prohibits:
- Requiring more than one rental guarantee (art. 37);
- Tying rent to minimum wage or foreign currency (art. 17);
- Transferring landlord obligations to the tenant without an express clause (art. 22, VIII);
- Charging for new painting if there is no damage or color change (art. 23, III);
- Imposing disproportionate fines for termination (art. 4).
Even with this information, it is best to seek support from a lawyer specialized in real estate law.
This professional can review the contract, point out null clauses, and protect your rights as a tenant or property owner.
Signing a contract with legal security avoids conflicts and ensures a balanced relationship between landlord and tenant.
Reading carefully and knowing the law is the best investment before picking up the keys to your new property.
Excelente esclarecimento. Precisamos sobre mais cláusulas, como a 47, sobre o prazo dos contratos, a maioria não quer fazer de trinta meses, só de doze meses. É impossível mudar a cada doze meses, o custo é muito alto de uma mudança. Agradeço se for atendida