In a way, it is known that over the years, every property needs renovation, there are also those tenants who need to improve the rented property to meet their daily needs or even when the purpose of that property is for use. commercial. But there are recurring dilemmas between LESSOR and LESSEE regarding the appropriateness of who is responsible for bearing the amounts spent on these improvements.
Before going into the merits of the matter, it is essential to clarify what are the improvements and types of improvements in our legal system provided for in the Tenancy Law and the Civil Code.
Improvements are additions or improvements made to the property through the action of the LESSOR or LESSEE. They are divided into three types:
- Necessary improvements aimed at preserving the property so that it does not deteriorate;
- Useful improvements that are carried out to facilitate the use of the property, or even increase the property;
- Voluptuary improvements taken as a mere pleasure or pleasure, making the good more pleasant and with a high value.
In this tuning fork, it is extremely important for the tenant to pay attention to the differences in the improvements, in order to guarantee their rights, especially when signing the contract.
Now let us carefully see that the Tenancy Law in its article 35 states that the necessary improvements introduced by the lessee, even if not authorized by the lessor, as well as useful ones, provided that they are authorized, will be indemnified and allow the exercise of the right of retention , unless otherwise specified otherwise in the lease.
Our Civil Code adds in its Article 578, that:
Unless otherwise stated, the LESSEE enjoys the right of retention, in the case of necessary improvements, or in the case of useful improvements, if these have been made with the express consent of the LESSOR.
Therefore, it can be noted that the articles listed above both from the tenancy law and the civil code assert that it is legal for the LESSOR and LESSEE to agree in the lease agreement on the responsibility for payment for the improvements, as well as the right of retention, where possible the LESSEE waives its right.
Furthermore, corroborating the doctrinal position, the STJ has already pacified the matter in Precedent 335, providing that:
In lease contracts, the waiver clause of the indemnity of the improvements and the right of retention is valid.
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Therefore, to avoid misunderstandings, it is essential that specific clauses on the improvements are in the contract.
However, it is also important to include in the contract the amount to be debited from the rent in cases where this deduction is provided for in the contract. That is, the amount to be debited from the rent, as a rule, cannot exceed 30% (thirty percent) of the amount paid for the monthly rent.
With regard to voluptuous improvements, article 36 of the Tenancy Law states that such improvements are not indemnified by the LESSOR. However, it is possible for the lessee to withdraw them at the end of the contract, as long as they do not cause damage to the structure.
By way of clarification, it is important to note that our Tenancy Law, in its article 26, says that: "If the property needs urgent repairs, which the LESSOR is responsible for carrying out, the LESSEE is obliged to consent to them" .
This time, it is clear that regarding the structural repairs, also considered as necessary improvements, the LESSOR is responsible.
The Tenancy Law in its article 22, I, IV and V, attributes obligations to the LESSOR regarding the improvements and the good state of service to which the rented property is intended, also imposing the possibility of answering for defects and defects prior to the lease.
Therefore, the improvements provided for in article 22 and 26 of the Tenancy Law, that is, those that are the responsibility of the LESSOR, if it does not perform them, the Law does not exempt it from its real obligations, and the LESSEE may in the future even file relevant actions for compensation for losses and damages caused by the poor performance of the property.
It is important to point out that LESSOR and LESSEE are aware that all clauses containing the rights and duties of each and specified in terms of responsibility and payment for the improvements must be entered into in the contract.
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