Loyalty is a common feature in rental contracts and is crucial in guaranteeing that the landlord receives the payments, even if the tenant defaults.
Bail, as outlined in Article 37 of Law No. 8.245/91, entails various duties and entitlements for the lessor, lessee, and other involved parties.
This article will detail how rental security deposits function, the qualifications for a guarantor, their duties, circumstances for termination, and steps to prevent potential issues.
Article 523 of the Civil Procedure Code: Mandate for a specific sum
What does bail entail in the rental agreement?
A bail is a form of security where a third party, known as the guarantor, agrees to cover rent and other fees if the tenant fails to meet their obligations.
This is a guarantee option outlined in Article 37 of the Rental Law, along with alternatives like deposits, insurance, and investing in fund quotas.
The bail is specified in Article 37(2) of Law No 8.245/91.
In the lease agreement, the tenant can request specific types of security deposits as outlined in Article 37 of Law No. 8,245/91.
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The trustee’s responsibility in bail agreements can include payments for rent, charges, penalties, and legal expenses as outlined in the contract.
What qualifications and terms must be met to become a trustee?
To become a trustee, the person must satisfy specific requirements established by the employer.
Among the most frequent needs include:
- The trustee needs to demonstrate enough income to manage ongoing responsibilities if needed.
- In many instances, it is necessary for the trustee to have a property registered in their name as an extra form of security.
- Living at the same address as the rental property may be mandated in certain locations to make legal proceedings more convenient.
These conditions are common practices in the real estate market even though they are not explicitly stated in the law.
What are the duties of the trustee?
The trustee addresses the responsibilities that the tenant must fulfill according to the contract.
- If the tenant does not meet their responsibilities, the trustee is required to pay the overdue rent and fees.
- Fines and penalties specified in the contract may also be imposed on the trustee for failing to meet the terms.
- In legal proceedings concerning inadmissibility, the bailiff could face accountability for court expenses.
Can the trustee give up their obligations?
The trustee can ask for the release of the bail, but this release will only apply to future obligations and will take effect 60 days after the creditor is notified.
Article 835 of the Civil Code states that:
The trustee can cancel the bail he has signed at any time he chooses, but he remains responsible for the effects of the bail for sixty days after being notified by the creditor.
He is still accountable for the debts incurred while he was acting as a trustee.
Art. 334 of the CPC provides a comprehensive overview of conciliation hearings or mediation.
Under what circumstances can bail be ended?
The trustee can end his responsibility in the following circumstances:
- The trustee’s responsibility ends when the original lease contract expires.
- The trustee can ask to be relieved of their duty through a court request. If granted, they are still responsible for 60 days after being notified, according to Article 835 of the Civil Code.
- Extension provisions: If there is no specified clause in the contract, the trustee is not obligated to fulfill duties resulting from the contract’s automatic extension.
What precautions should the trustee consider?
Lawyers who have provided counsel to trustees should direct them to:
- Carefully read the contract clauses and spot any potential unfair practices.
- Ask for specific liability restrictions in the agreement to prevent unfair responsibilities.
- To confirm the option of substituting bail with a different form of security in case the local situation changes and a renewal is required.
How does the process of carrying out a judgement against the bailiff function?
The trustee becomes liable to fulfill the obligations of the main debtor as stipulated in the lease agreement.
The trustee takes on the obligation to pay off the debt if the primary debtor fails to do so.
View the overview of the process:
Bail constitution
Legal document.
The bail must be in writing and cannot be broadly interpreted.
The bail should be set down in writing, as stated in Article 819 of the Civil Code.
It is typically found in the primary agreement or a distinct document, and it is crucial for it to clearly outline the boundaries and terms of the warranty.
Main borrower failure to pay
The trustee is activated only when the primary debtor fails to pay.
The creditor typically needs to show that they attempted to collect payment from the main debtor before involving the bailiff, unless the bail agreement specified otherwise.
Trustee notification
The trustee may receive a friendly notification to fulfill the obligation before the execution.
Capital punishment
The creditor can take legal action to enforce their rights if the trustee fails to fulfill their obligation without being prompted, as long as they have a valid legal document to support their claim.
- Extrajudicial executive titles include leasing contracts with bail clauses and trustee signatures, promissory notes, and checks.
- Court rulings: actions taken in court that lead to the main debtor and possibly the bailiff being found guilty.
Trustee defenses – Defenses by trustees
The trustee can file objections to the enforcement or challenge, as appropriate, seeking, for instance:
- The excess of implementation (the charged amount exceeds what is owed).
- Lack of sufficient liquidity, certainty, or the necessary title.
- The order benefit (Article 827 CC) enables the trustee to request that the creditor initially seek payment from the primary debtor, unless there is a clear waiver or different arrangement in the contract.
Goods’ sympathy and estrangement
If the trustee fails to make payment, his assets could be used as collateral and auctioned off publicly to settle the debt.
In bonds resulting from bail granted in a lease agreement, the family property of the guarantor can be used as collateral.
Art. 3, VII of Law No. 8.009/1990 states this way:
Improvement is permissible in any legal proceeding, except when initiated.
By necessity resulting from bail provided in a rental agreement.
Trustee’s solidarity
Legal document
The trustee should not receive this advantage according to Article 828 of the Civil Code.
II – was compelled to act as the primary payer or as a guarantor.
The trustee’s solidarity is established in Article 828, II, of the Civil Code, which specifies that the trustee forfeits the right to a benefit of order if they take on the obligation as the primary payer or solidarity debtor.
If the contract specifies joint liability, the creditor can demand payment from the guarantor without pursuing the primary debtor first.
The trustee plays a crucial role in ensuring security and carrying out responsibilities within the local relationship.
The trustee plays a crucial role in the relationship between the landlord and tenant, providing a reliable guarantee for the tenant and a cost-effective choice for the renter.
Bail necessitates careful consideration of the legal components, particularly in relation to the terms of the agreement and obligations accepted.
The attorney needs to evaluate the particular scenario and advise on the relevant rights and responsibilities to ensure legal protection for all involved.
Read our article on Term Counting in CPC and have a good time.