How much deposit is payable on a commercial lease? Does it have to be lodged with INCASÒL?

Question

José Manuel Alburquerque · Accepted Answer

Two months' rent, in cash. It is compulsory, so a commercial lease cannot be signed without a statutory deposit (“fianza”) or with a smaller one. In Catalonia, the landlord must lodge it with the “INCASÒL”, the Catalan public body that holds tenancy deposits, within two months of the lease being signed, just as with the deposit on a home. If the landlord does not do so, he or she faces surcharges and fines, but the lease remains valid and the tenant is still entitled to have the deposit returned at the end. How much it is and when it changes It is calculated on the monthly rent. The usual practice is to take the rent excluding VAT. The deposit is not subject to VAT, because it does not pay for any service. With a rent of 1.500 euros a month excluding VAT, for example, the deposit is 3.000 euros. During the first five years of the lease, or the first seven if the landlord is a legal entity, it is not updated. At each extension, the landlord can ask for it to be increased, or the tenant for it to be reduced, so that it equals two months of the rent at that time. If the agreed term is longer, once those years have passed it is updated as agreed and, if nothing was agreed, in the same way as the rent. Additional guarantees, such as a bank guarantee, are separate and do not replace the deposit. The deposit cannot be used to pay the last months' rent. It is returned when the lease ends, less anything the tenant owes. Lodging the deposit with INCASÒL In Catalonia, the law on deposits requires anyone who lets an urban property, whether a home or commercial premises, to do the following: Lodge the statutory deposit, the two months' rent, with INCASÒL, the “Institut Català del Sòl” (the Catalan Land Institute), within two months of signing. Its updates, also within two months. Enter the lease in the “Registre de fiances”, the register of tenancy deposits. Give the tenant, within those two months, a copy of the receipt for the deposit. Failing to lodge the deposit is a serious offence, with a fine of 35 % to 75 % of the amount that should have been lodged. If the landlord lodges it late of his or her own accord, a surcharge on the deposit of 5 %, 10 % or 15 % is payable, depending on whether the delay is no more than three, six or twelve months. After one year, the surcharge is 20 % plus interest. If the landlord lodges it after being required to do so by the authorities, the surcharge is 25 %. The surcharges cannot exceed 1.500 euros. A deposit of 3.000 euros lodged five months late, without any formal demand, carries a 10 % surcharge, which comes to 300 euros. If the landlord does not lodge it Lodging the deposit is an obligation the landlord owes to the authorities. If the landlord does not do so, the lease is still valid, the tenant must still pay the rent and keeps the right to have the deposit returned at the end. The tenant can ask the landlord for the receipt for the deposit. When the lease ends, it is the landlord who returns the deposit, not INCASÒL, even if it has been lodged there. If the landlord takes more than a month from the handover of the keys, he or she also owes interest at the statutory rate (“interés legal del dinero”) on the amount to be returned.