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Understand The Difference Between Legal Obligation And What The Contract Says About Who Pays The Property Tax And Condominium Fees To Avoid Undue Charges.
The definition of responsibilities in a rental agreement is one of the points that generates the most doubts and conflicts between landlords and tenants. As explained by expert Thales de Menezes in an article on the JusBrasil portal, the question of who pays the property tax and condominium fees leads the list of misunderstandings, often resulting in undue charges and wear on the relationship between the parties. The lack of clarity can lead to significant financial losses and even legal disputes that could have been easily avoided.
To navigate this scenario, it is essential to understand the distinction that the law makes between tax obligation, which falls on the property owner, and contractual obligation, which can be negotiated between the parties. The Tenancy Law provides the basis for this negotiation, but ignorance of its details opens room for misinterpretations and, consequently, for problems that affect both the tenant and the property owner.
Property Tax: The Crucial Difference Between Legal Obligation And Contractual
When it comes to the Urban Property and Land Tax (IPTU), there is a duality that needs to be understood. From the municipality’s point of view, the legal responsible party for the tax is always the property owner. Article 34 of the National Tax Code states that the taxpayer is “the owner of the property, the holder of its useful domain, or its possessor by any title”. In practice, the tax authority directs the collection to the name on the property registration, that is, the owner.
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However, the Tenancy Law (Law No. 8,245/91), in its Article 22, allows this financial responsibility to be transferred. The legislation states that the landlord is obliged to pay the taxes, “unless expressly stated otherwise” in the contract. It is this loophole that validates the market practice of passing the payment of the IPTU to the tenant. However, as Thales de Menezes highlights in his analysis on JusBrasil, this contractual clause does not alter the legal relationship with the municipality. If the tenant does not pay, the municipality will charge the owner.
The Serious Consequences Of Tenant Default
The failure to pay the IPTU by the tenant, even when stipulated in the contract, creates a cascading effect directly on the owner. The first step is the registration of the debt in the municipality’s active debt, which already negatively affects the owner’s credit. Then, the municipality may file a tax enforcement lawsuit, a legal action to enforce payment of the debt, which may even lead to the seizure of the owner’s assets, including the rented property itself.
In addition to the enormous financial loss, the situation causes deep emotional and moral strain. Being the subject of a legal process and having one’s name negatively impacted due to a debt that was not contractually theirs constitutes a situation that goes beyond mere inconvenience. In these cases, the owner has the right to seek reimbursement in court, filing an action against the defaulting tenant to recover the amounts paid and even request damages for moral damages due to all the inconveniences faced.
Condominium Fees: The Division Between Use And Property
The rule for condominium fees is more detailed and follows a clear logic: the tenant pays for day-to-day expenses, while the owner bears the costs that enhance the property in the long term. The Tenancy Law separates these expenses into two categories: ordinary and extraordinary expenses. Ordinary expenses, for which the tenant is responsible, include everything necessary for the routine maintenance and use of the condominium, such as staff salaries, utility bills for common areas, cleaning, and small repairs on equipment like elevators and gates.
On the other hand, extraordinary expenses are exclusively the responsibility of the landlord. These refer not to daily maintenance but to investments that add value to the property. The law exemplifies these expenses as: structural work on the building, painting of facades, installation of new security or leisure equipment, and the initial establishment of a reserve fund. Passing these costs to the tenant is illegal, as it would be equivalent to forcing them to invest in a property that is not theirs.
What To Do In Case Of Undue Charges?
In practice, theory can be confusing, especially when condominium bills do not clearly detail what is being charged. It is common for a “construction fee” to be mixed with the ordinary fee. In these cases, the tenant has the right to question the management company and refuse to pay the portion corresponding to the extraordinary expense. It is the owner’s responsibility to resolve the issue and bear the cost.
If the tenant ends up paying an extraordinary expense by mistake or under pressure, they have the right to reimbursement. The first step, as advised in the analysis available on JusBrasil, is to document everything: keep the contract, the detailed bill, and the payment receipt. Then, notify the owner in writing (an email is sufficient) and request the return of the amount. If there is no agreement, the most common and practical solution is to deduct the amount from the following rents, but a legal action for restitution is also a possible path.
The Contract Is The Best Protection Tool
The management of who pays the property tax and condominium fees in a rental depends on clear rules. While the property tax is a legal obligation of the owner that can be financially transferred to the tenant by contract, condominium expenses are divided by their nature: daily use (tenant) and investment in the property (owner).
The most powerful tool to avoid conflicts is undoubtedly a well-written rental agreement that explicitly details all these responsibilities. Contractual clarity, combined with dialogue and good organization of documents, guarantees a healthy and secure relationship for both parties. In case of doubt, consulting a lawyer specializing in real estate law is an essential investment for the protection of your rights.
Have you ever had problems with the charging of property tax or condominium fees in your rental? Do you think the law is clear enough? Leave your opinion in the comments, we want to hear from those who live this experience.
Sou contrário a cobrança do inquilino pagar IPTU, condomínio, taxa de incêndio e seguro de imóveis
PODE O INQUILINO PAGAR E SER DESCONTADO NO ALUGUEL?