Para tratar do assunto Contrato de locação, faz-se necessário falar sobre a Lei nº 8.245, promulgada em 18 de outubro de 1991 e conhecida como “Lei do Inquilinato”.
Na referida lei, são descritos procedimentos em relação aos contratos de aluguel, bem como sobre a admissão e o despejo. Por enquanto, vamos falar sobre a caução no contrato de locação, qual seu procedimento, sua finalidade e quais as questões de maior relevância.
A caução é uma das formas de garantia locatícia, como está previsto na Lei. Vejamos:
Art. 37. No contrato de locação, pode o locador exigir do locatário as seguintes modalidades de garantia:
I – caução;
II – fiança;
III – seguro de fiança locatícia.
IV – cessão fiduciária de quotas de fundo de investimento.
Parágrafo único. É vedada, sob pena de nulidade, mais de uma das modalidades de garantia num mesmo contrato de locação.
Importante ressaltar que a garantia locatícia deverá ser exigida apenas em uma das modalidades, sendo possível arguir a nulidade no caso de exigência simultânea de duas ou mais modalidades de garantia.
Em geral, é utilizada a caução em dinheiro, que deverá ser fixada em até o valor de três meses de aluguel e será depositada em caderneta de poupança, objetivando sua correção ao longo do contrato de locação. O valor da caução corrigido será revertido ao locatário.
A devolução do valor da caução ocorrerá no momento da devolução do imóvel ao locador, mesmo que a locação seja prorrogada por tempo indeterminado.
É possível que o locatário e locador pactuem no contrato de aluguel forma diversa da prevista em Lei (valor e devolução da caução). No entanto, caso isso não ocorra, as regras disciplinadas na lei do inquilinato devem ser respeitadas.
Aqui vamos falar dos “espertos” e suas ideais “maravilhosas”.
Algumas práticas podem ocorrer e não devem ser aceitas como, por exemplo, a devolução da caução sem a correção monetária da caderneta de poupança, ou o que é pior, o uso da caução para abatimento de alugueis.
A caução não é aluguel, mas sim uma garantia locatícia e é seu papel nos contrato de locação proteger o locador caso o locatário não cumpra com suas obrigações.
Vamos para um exemplo prático. Imagine que o locatário devolveu o imóvel com problema que ele causou e que deveria ter consertado antes da devolução do imóvel.
Entendeu a importância de a caução ser devolvida no final do contrato de locação após a vistoria do imóvel? Pois em caso de problema com o imóvel, sua devolução estará condicionada a solução do problema em questão pelo locatário, que foi o causador do prejuízo.
Caso o valor da caução seja usado para correção dos problemas, o locatário deverá ter acesso a todas as notas fiscais para a prestação de contas. Não aceite prestação de contas em que não haja a apresentação de notas fiscais para que se possa ter conhecimento do que foi utilizado e quais os procedimentos foram realizados.
Esta conversa não substitui uma consultoria jurídica. Lembre que cada caso é um caso. Proteja seu patrimônio.
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