When renting a property, homeowners must be aware of the rights and duties of both the landlord and the tenant. In this relationship, many doubts are common. And one of them is about when to make a request to vacate a rental property.
The Law No. 8245 of 1991, also known as the Tenancy Law is the legal instrument that regulates the leasing of commercial and residential real estate. In 2009, this rule was amended by Law No. 12,112, the New Tenancy Law, in order to improve the rules on the lease of urban property.
It is essential to know these rules to avoid problems between the owner and the tenant, such as conflicts and even criminal sanctions. Thus, the rental contractit can be performed by both parties in the most appropriate and safe way possible.
Do you want to better understand how the rental vacancy request works? So, know the rules and the cases in which the owner can make this request!
Tenants who delay their rent are a very serious problem for all homeowners. Going to court to recover the rent can be a lengthy process. So check out in this post some ways to collect rent late politely from the tenant, going to court as a last resort.
When is it allowed to make a request to vacate a rental property?
To find out when you can make a request to vacate a rental property, it is necessary to evaluate, in addition to legal requirements, the rental agreement and the lease term. First of all, it must be understood that, in order to set up a lease, some criteria are necessary, such as:
- The transfer of the property must have the characteristic of temporaryness, that is, it is not definitive;
- The use of the property must be reciprocated by paying rent;
- The property must be returned at the end of the lease in the same condition as when received.
Considering these principles, the legislation, the terms and the type of lease, find out what are the possible situations to carry out the request for vacancy of the rented property!
Written residential lease agreement still in force
According to article 4 of the Tenancy Law, the general rule is that “during the term stipulated for the duration of the contract, the landlord cannot recover the rented property”. However, there are some exceptions, so that the request to vacate the rental property can be made. As in cases where the tenant:
- Breach the contractual terms or commit an illegal violation;
- Do not pay rent and other rental charges.
It is worth mentioning that, in the case of the lessee, it is possible to return the property at any time. For this, with exceptions, he must pay the termination penalty determined in the contract.
Written residential lease agreement with a term equal to or greater than 30 months
In this situation, Article 46 determines that if the lessee remains in the property for more than 30 days after the end of the period without opposition from the lessor, the lease is extended indefinitely.
According to the law, after the extension, “the landlord may terminate the contract at any time, granted a period of thirty days for eviction”. Here, the principle of empty denouncement is valid; that is, there is no need for a reason to ask for the property back.
Verbal or written residential lease agreement with a term of less than 30 months
In this case, Article 47 determines that, since the lease has been extended for an indefinite period, it is possible to make the request to vacate the rented property in cases such as:
- Mutual agreement;
- Legal or contractual infraction by the lessee;
- Failure to pay rent and other obligations;
- Demolition, edification or performance of works approved by the Government;
- Extinction of the employment contract when the occupation of the property is related to the tenant’s employment;
- Request from the owner for own residential use, spouse, partner, ascendant or descendant who does not have another property for this purpose;
- Uninterrupted term of the lease exceeds five years.
It is worth mentioning that, in the case of contracts made verbally, the lease can be proven through proof of payment, such as receipts and water or electricity bills, for example.
Commercial lease agreement
In commercial lease agreements – or non-residential -, it is necessary to comply with the contractual term. In addition, it is necessary to respect the tenant’s rights to renew the contract. The right to renew is specified in the items of article 51 of the Tenancy Law, which stipulate the following criteria:
- The contract to be renewed must have been signed in writing and with a fixed term;
- The minimum term of the contract or the sum of the uninterrupted terms must have been five years;
- The lessee must be operating in the same business for a minimum and uninterrupted period of three years.
The owner will not be obliged to renew only if:
- Determination of Public Power;
- Use of the property by the lessor himself, in which case, he cannot allocate the place to the same branch of the lessee.
If the contract is extended indefinitely, the landlord can make the request to vacate the rented property in writing, and must grant the renter 30 days to return it.
How to make the request to vacate the rented property?
Considering the possible cases for the request to vacate a rental property, it is also important that the owner does it correctly.
For this, it is necessary to formalize the request, communicating the tenant by means of a written document. In addition, after the notice, the tenant must be granted a period of time to vacate at least 30 days.
It is worth remembering that the request to vacate a rental property cannot be made by force. That is, if the tenant refuses to return the property, the owner must take the appropriate legal measures. For this, there is a resource called eviction action, in which eviction will be decided in court.
As you have seen, when renting a property, care must be taken to comply with the rights and obligations of the lessee and lessor. In addition to the legislation that regulates the subject, the rental agreement is an essential document to legally protect the parties involved in a lease.
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