Is it my responsibility to pay for damages to a rented apartment despite the fact that the contract does not stipulate it?

He housing rental It has always been one of the most used modalities for those looking for a home, either due to proximity to their work center, independence or other factors. However, the conditions of this agreement must be established very well: both owners as tenants have obligations and rights to fulfill, the same ones that must be stipulated in the leasing contract. If they are not carried out, it could lead to more than one legal problem between both parties.

One of the points that generates the greatest doubts regarding the rental of real estate corresponds to the payments that those involved must make. To answer this question, La República spoke with Gino Laysecageneral manager of the consulting firm Layseca Asociados, and with Marco Torres Maldonadoprofessor of Civil Law and senior associate at Rodríguez Angobaldo Abogados, to clear up these doubts.

Should I pay for damages to the property that I rent even if it is not established in the contract?

Of course. The fact that nothing has been agreed in the contract about the damages in the leased apartment does not mean that the tenant is released from the payment of any compensation. What happens is that, in such cases, the Civil Code is applied additionally, which establishes that every tenant is responsible for the loss and deterioration of the property that occurs during the lease, unless it is demonstrated that this has occurred due to a cause not attributable to him. What does it mean?

“For example, that if the apartment suffers damage due to a flood or fire, in principle, the repair of such damage will be the responsibility of the lessee, since it is he who exercises, immediately, the control and use of the property for his benefit. “, explained the lawyer Marco Torres.

In every rental contract for a home there is a monetary guarantee that usually corresponds to one or two months of rent that the owner of the property receives. In this sense, the owner of the house can use it to cover the expenses of any damage in the apartment, as long as this is not the product of its own use.

For example, wear on a faucet, a switch and/or socket, paint or varnish on the floor, etc. However, if the water pumps fail, if there are electrical problems in the networks and/or in the key panel, breaks in the doors and windows, etc., these damages will be deducted from the amount of the guarantee received.

What expenses must the tenant cover?

This point depends on what the parties have established in the lease. If there is no agreement in this regard, the Civil Code provides a solution.

According to the article 1682 of the Civil Code, the costs of conservation and ordinary maintenance of the property are borne by the lessee. In the case of real estate (houses, apartments, offices, etc.), they will have that character, for example, the repair of the locks, of some sanitary blockage, the renovation of the painting of the walls, the change of some glass in the window, among others.

Such repairs, in doctrine, are also known as locative, ordinary or maintenance, and are related to the diligent care of the property that every tenant must have.

Similarly, the expert points out that the apartment must be returned as it was received. If it was delivered painted, you must return it painted; If a toilet tank accessory breaks, you would have to change it, among others.

What expenses must the owner of the property cover?

Notwithstanding any different agreement, in principle, it is up to the owner to make all the necessary repairs to the property. Said repairs, as understood by our jurisprudence, allow the property to continue to be used by the lessee for the purpose for which it was leased (residential or commercial purposes).

A necessary repair, for example, could consist of a pipe that generates a permanent leak or a defect in the floor of the property, which prevents its normal transit. In case this occurs, the lessee is obliged to give immediate notice to the owner about the repairs that must be carried out. In the case of urgently needed repairs, the lessee must carry them out directly with the right to reimbursement —which could lead to a discount from the agreed rent—, provided that he notifies the lessor at the same time.

The owner is responsible for repairing or replacing the equipment and/or elements that guarantee the proper use and operation of the apartment. For example, if the walls are damaged after an earthquake, the owner would have to repair them. If the sales windows are damaged, he would also have to repair them, among other damages.

In addition, the owner is responsible for all damages that the apartment may suffer due to effects beyond the tenant’s control. For example, if the apartment above you floods and damages the apartment the tenant rents, it is the landlord who has to repair the damage. The tenant does not have to deal with the neighbor upstairs.

In case of deterioration of the property caused by the passage of time, who is in charge?

The owner is the one who would be responsible for all damages that the apartment may suffer due to effects unrelated to the tenant. If this point is not met, the owner could even be sued.

What is the best alternative for these cases?

Gino Layseca points out that it is best to reconcile with the owner. Likewise, he explains what expenses should be covered by both parties.

“The tenant must pay the cost of building maintenance and municipal taxes. However, improvements and other extraordinary expenses of the building are borne by the owner. For example, painting the building, changing elevators, among others,” he explained.