Residential lease agreement: what does it need to include to avoid problems?

A lease agreement looks simple — two pages, a signature, done. But it is precisely in the poorly drafted clauses that the biggest disputes between landlord and tenant arise: the repossession that gets stuck, the guarantee that does not cover, the rent adjustment that turns into a fight, the return of the property full of surprise deductions. A good agreement anticipates these points and protects both parties.

In this guide, you will understand what cannot be missing from a residential lease agreement, why the choice of term (30 months or less) changes everything when it comes to taking back the property, how the guarantees work and which precautions prevent problems — all in light of the Tenancy Act (Law 8.245/1991).

What cannot be missing from a residential lease agreement?

A complete residential lease agreement clearly sets out:

• Parties and property: identification of the landlord, the tenant (and the guarantor, if any) and a description of the property.

• Amount and rent adjustment: the rent, the adjustment index (e.g., IGP-M or IPCA) and the annual frequency.

• Term: the period of validity (with special attention to the 30-month threshold).

• Guarantee: one of the types under art. 37 (security deposit, surety, rent guarantee insurance or fiduciary assignment).

• Charges: who pays the property tax, condominium fees and utilities (water, electricity, gas).

• Improvements and return of the property: rules on renovations, condition upon return and inspection.

Each of these points, if left vague, becomes a dispute down the road. Careful drafting is what turns the agreement from a formality into real protection.

Why does the 30-month term change everything?

This is the most strategic clause in the agreement, and few tenants and landlords understand its weight. The Tenancy Act treats agreements differently depending on the term:

• Written agreement with a term equal to or longer than 30 months: at the end of the term, the landlord may ask for the property back without having to justify — this is no-cause termination (art. 46). If the tenant stays more than 30 days without objection, the agreement is extended for an indefinite term and the landlord may then terminate at any time, with 30 days to vacate.

• Oral agreement or written agreement with a term shorter than 30 months: at the end, it is automatically extended for an indefinite term, and the landlord can only take back the property in the specific circumstances of art. 47 (for-cause termination — own use, breach, works, etc.) or, without cause, only after 5 uninterrupted years.

Note a detail already settled by the Superior Court of Justice (STJ): the 30-month term must be in a single agreement — you cannot add up the terms of successive agreements to reach 30 months. That is why the 30-month agreement is the most common: it gives the landlord predictability to take back the property at the end, without depending on cause.

How do lease guarantees work?

The guarantee is what protects the landlord against default. Law 8.245/1991 (art. 37) provides for four types — security deposit, surety (guarantor), rent guarantee insurance and fiduciary assignment of investment-fund shares — but there is a golden rule: there can be only one in the same agreement, under penalty of nullity (requiring two is even a misdemeanor).

In other words, the landlord chooses: guarantor OR security deposit OR rent guarantee insurance. The cash security deposit cannot exceed three months' rent (art. 38). The choice of guarantee balances security (for the landlord) and accessibility (for the tenant), and must be expressly stated in the agreement. Since each guarantee has its own rules, it is worth covering them in detail — which we do in a dedicated article on our blog.

A practical example: Mr. Antônio's 12-month agreement

Mr. Antônio rented out his apartment in São Paulo under a written 12-month agreement, thinking that, at the end of the year, he would simply ask for the property back. When the term ended and he wanted to take it back for his daughter's use, the tenant refused to leave — and was protected by law.

Because the agreement was for less than 30 months, at the end of the term it was automatically extended for an indefinite term (art. 47). To take back the property, Mr. Antônio could not use no-cause termination: he had to fit within a for-cause termination scenario (in this case, use by a descendant without their own property) and prove it, meeting the requirements of the law — a more laborious path. Had he entered into a 30-month agreement, he could have asked for the property back at the end without justification. A few lines' difference in the agreement meant extra months to recover the property. Contractual planning is everything.

The most common (and costly) mistakes

• Ignoring the 30-month threshold. A shorter agreement makes repossession at the end much harder.

• Requiring more than one guarantee. A guarantor and a security deposit together are void — choose only one.

• Leaving rent adjustment and charges vague. Without a clear index and allocation, conflict is certain.

• Not carrying out a move-in inspection. Without it, a dispute over the condition upon return is inevitable.

• Using a generic template from the internet. Standardized clauses ignore the specific situation and create loopholes.

Checklist: for a secure lease agreement

• Set the term with attention to the 30-month threshold.

• Choose one guarantee (art. 37) and describe it clearly.

• Fix the amount, the rent adjustment index and the frequency.

• Detail the charges (property tax, condominium fees, utilities).

• Carry out a move-in inspection and set return rules.

• Consider recording on the registry record and review by a real estate lawyer.

Frequently asked questions about residential lease agreements

What cannot be missing from a residential lease agreement?

Identification of the parties and the property, the rent amount and the adjustment index, the term, the payment method, the chosen guarantee (only one), responsibility for charges (property tax, condominium fees, utilities) and rules on improvements and return of the property. The agreement is governed by Law 8.245/1991. Well-drafted clauses — especially on term, guarantee and rent adjustment — prevent most disputes between landlord and tenant.

What is the difference between a 30-month agreement and a shorter one?

It is decisive for repossession. In a written agreement with a term equal to or longer than 30 months, at the end of the term the landlord may ask for the property back without justification (no-cause termination, art. 46). In an oral agreement or one written for a term shorter than 30 months, at the end it automatically renews and the landlord can only repossess in specific circumstances (for-cause termination, art. 47) — or, without cause, after 5 years. That is why 30-month agreements are the most common.

Can I have more than one guarantee in the same agreement?

No. Law 8.245/1991 (art. 37) provides for four guarantees — security deposit, surety, rent guarantee insurance and fiduciary assignment of investment-fund shares — but it prohibits requiring more than one in the same agreement, under penalty of nullity (and demanding two is even a misdemeanor). In other words, the landlord chooses one: guarantor OR security deposit OR rent guarantee insurance. A cash security deposit cannot exceed three months' rent (art. 38).

Does a lease agreement need to be recorded or notarized?

It is not mandatory to record the agreement or have signatures notarized for it to be valid between the parties. However, recording the agreement on the property's registry record brings advantages: it guarantees the tenant the right of first refusal to buy and the continuity of the lease even if the property is sold (art. 8). Without recording, the buyer may terminate the lease. For security, it is worth considering recording, especially in longer agreements.

Is it worth having a lawyer review the lease agreement in São Paulo?

Yes. In São Paulo, where rent and property values are high, a poorly drafted agreement is costly — in disputes, difficult repossession or losses from default. A lawyer tailors the clauses on term, guarantee, rent adjustment and charges to the specific situation, preventing litigation. For landlords with several properties or for tenants signing significant agreements, this prior review is an investment that avoids headaches.

Do I need a lawyer to make a residential lease agreement?

It is not mandatory, but it is advisable, especially in leases of significant value. Most lease disputes arise from poorly drafted clauses — on term, guarantee, rent adjustment or return of the property. A real estate lawyer in São Paulo drafts or reviews the agreement in a balanced and secure way, protecting both landlord and tenant and reducing the risk of eviction and future disputes.

A good agreement prevents conflict before it exists

In a lease, almost every conflict originates in the agreement: a poorly chosen term, an inadequate guarantee, a vague rent adjustment, a return with no rules. Well-drafted clauses, tailored to the Tenancy Act and to the specific situation, are what turn the relationship between landlord and tenant into something predictable and secure.

The most strategic point — the choice of the 30-month term — illustrates well how contractual details define important rights, such as taking back the property. That is why it is worth dedicating attention to the agreement before signing.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work in real estate law and leasing — drafting and reviewing balanced and secure residential lease agreements, for landlords and tenants. If you are going to rent (or lease out) a property, it is worth having the agreement reviewed.

Talk to our team on WhatsApp: +55 11 95901-1854 — and put together your lease agreement with legal security.