Return of the rental deposit: what can be deducted for painting, cleaning and damage

The deposit is one of the essential elements in urban tenancy agreements. Its primary purpose is to guarantee the tenant’s compliance with the obligations arising from the contract, particularly the payment of rent and the proper maintenance of the property.

You vacate the flat, hand over the keys… and the landlord tells you they are keeping part (or all) of the deposit to cover painting, cleaning or «repairing» damage. This is, in fact, one of the most common disputes at the end of a tenancy: the clash between what the landlord wants to deduct and what the tenant considers fair wear and tear from normal use of the property. It is therefore important to be clear about when the return of the deposit is due and when the landlord may retain it.

Recent case law has been drawing clear boundaries between damage that can be attributed to the tenant and damage that the landlord must bear as the natural consequence of the passage of time and ordinary use of the property.

What the deposit is and what it is for (Article 36 LAU)

The deposit is regulated by Article 36 of the Spanish Urban Tenancies Act («LAU»), which establishes the obligation to provide a cash guarantee equivalent to one month’s rent in residential tenancies and two months’ rent in tenancies for non-residential use.

Its function is to act as security for the contractual obligations assumed by the tenant, allowing the landlord to seek redress in the event of any breach.

However, the deposit does not give the landlord an unfettered discretion to retain amounts without justification. Total or partial retention requires proof of outstanding debts or damage attributable to the tenant.

The obligation to return the property (and what «normal use» means)

Under the general rules governing tenancies, the tenant must return the property in the condition in which it was received, except for deterioration caused by normal and ordinary use of the property.

This obligation does not mean that the tenant must hand back the property as if it were brand new, or bear the cost of a full refurbishment intended to facilitate a new tenancy.

The fundamental distinction lies in differentiating between:

Damage resulting from negligent or inappropriate use.
Fair wear and tear resulting from the passage of time and ordinary use of the property.

Only the former can justify deductions from the deposit.

Fair wear and tear cannot be charged to the tenant

The Provincial Court of Málaga (Section 5), in its Judgment no. 857/2024, of 30 December, draws an important distinction between the items that may be claimed at the end of the contract.

The judgment recalls that, even if the tenant receives the property in perfect condition and undertakes to return it in the same condition, this does not entail liability for deterioration resulting from normal everyday use or from the age of the property.

The Court expressly rejects the landlord’s claim to pass on to the tenant costs consisting of:

Complete repainting of the interior and exterior.
Cleaning of the roof.
Painting of the swimming pool.
Restoration of elements aged by the passage of time.

According to the court, such works constitute general maintenance or renovation tasks that go beyond the tenant’s obligations. The judgment concludes that negligent conduct cannot be attributed to the tenant when the condition of the property is essentially the result of its age and ordinary wear and tear from use.

Painting and cleaning: what the courts say

One of the most contentious issues in practice is determining who should bear the costs of painting and cleaning at the end of the tenancy.

The Provincial Court of Barcelona (Section 4), in its Judgment 80/2021, of 8 February, sets out an already well-established doctrine according to which general cleaning and repainting of the walls are, as a general rule, the landlord’s responsibility.

The ruling recalls that such works are typically required repairs resulting from normal use of the property and the need to keep it in suitable condition for future tenancies.

Only in exceptional and duly evidenced cases could the cost of such works be charged to the tenant, specifically where there is:

Manifest abandonment of the property.
An extraordinary accumulation of dirt.
Abnormal deterioration to walls or finishes.
Damage resulting from negligent use.

In the case examined by the Provincial Court of Barcelona, the claim was dismissed precisely because there were no photographs or objective evidence to allow a comparison of the condition of the property at the start and end of the tenancy.

Evidence is everything: photos, inventory and key handover

Case law consistently emphasises that retaining the deposit requires sufficient evidence of the alleged damage. It is not enough to produce quotes or invoices issued unilaterally. It is essential to establish:

The initial condition of the property.
Its final condition upon the handover of keys.
The actual existence of the damage.
Its causal connection with the tenant’s conduct.

In these disputes, the burden of proof lies with the landlord, who must demonstrate both the existence of the damage and that it is attributable to the tenant. The absence of photographs or a detailed inventory makes it extremely difficult for such claims to succeed.

Key handover documents are also of particular importance: if the landlord takes back possession without raising any reservations or noting any damage, they may subsequently face serious difficulties in justifying the retention of the deposit.

Handover records and inventories: why they matter

The judgment of the Provincial Court of Málaga 603/2016, of 7 November, is a paradigmatic example of the importance of documenting the condition of the property.

In that case, the contract stated that the property was handed over in perfect condition as regards painting and cleanliness. However, the photographs produced showed that, at the end of the tenancy, both the paintwork and the cleanliness were still acceptable, with the natural wear and tear resulting from its use.

The Court also dismissed certain claims relating to furniture due to the absence of a sufficiently detailed contractual inventory. Of particular significance was the fact that the estate agency itself had informed the tenant that it had not identified any serious damage — a circumstance incompatible with the subsequent claims made by the landlord.

Practical recommendations

If you are a landlord

Draw up a detailed inventory of the property and its contents.
Include a dated photographic record.
Document the handover and return of keys in writing.
Carry out an inspection immediately upon recovering possession.
Keep invoices and proof of any repairs carried out.

If you are a tenant

Carefully inspect the condition of the property at the start of the tenancy.
Request that any pre-existing damage be recorded in writing.
Keep photographs taken on both move-in and move-out.
Request a written receipt when handing back the keys.
Ask for documentary justification of any amount retained from the deposit.

Conclusion

The most recent case law reaffirms a fundamental principle: the deposit cannot become a mechanism for passing on to the tenant the ordinary costs of maintaining or updating a property.

Costs arising from the natural ageing of the property, painting required through ordinary use, or routine cleaning prior to a new tenancy are, as a general rule, the landlord’s responsibility. Only where there is sufficient evidence of specific, abnormal damage directly attributable to the tenant will total or partial retention of the deposit be legitimate.

The judgments of the Provincial Courts of Málaga (857/2024 and 603/2016) and Barcelona (80/2021) consolidate a line of authority in favour of a balanced interpretation of the parties’ obligations: the tenant need not bear ordinary wear and tear or the passage of time, nor may the landlord retain the deposit without rigorous evidence of damage that is genuinely compensable.

Frequently asked questions about the return of the rental deposit

Can painting be deducted from the deposit?

As a general rule, no. Painting required through normal use of the property is the landlord’s responsibility. It could only be deducted if there is abnormal damage to the walls, duly evidenced and attributable to the tenant.

What about cleaning?

The same applies as for painting: ordinary cleaning prior to a new tenancy is the landlord’s expense. It could only be charged to the tenant in cases of an extraordinary accumulation of dirt or manifest abandonment, and only where duly evidenced.

How long does the landlord have to return the deposit?

Article 36.4 of the LAU sets a one-month time limit from the handover of keys for the return of the deposit balance. Once that period has elapsed without repayment, the outstanding amount accrues the statutory rate of interest.

What if there is genuine damage?

If there is abnormal damage attributable to the tenant and duly evidenced, the landlord may retain from the deposit the amount necessary to cover repairs. The key is evidence: photographs, an inventory, and a documented comparison of the property’s condition at the start and end of the tenancy.

Do I need photos or an inventory?

Yes. Dated photographs taken on move-in and move-out, together with a detailed inventory, are the decisive evidence. Without them, it is very difficult for the landlord to justify a retention and equally difficult for the tenant to claim a refund.

What should I do if my deposit is not returned?

Write to the landlord requesting justification for every amount retained. If no agreement is reached, a monetary claim can be pursued to recover what you are owed.

Has your landlord failed to return your deposit or deducted painting and cleaning costs without justification? At Trigo Buide, as property lawyers in Madrid, we review your contract and claim what you are owed.