Lease guarantees: guarantor, deposit or rent guarantee insurance?

The guarantee is the heart of a lease's security. It is what protects the landlord if the tenant fails to pay — and it is often the point that raises the most doubt (and friction) when closing the agreement: require a guarantor? Accept rent guarantee insurance? Charge a security deposit? And how much? Choosing wrongly can mean insecurity for the landlord or an abusive demand on the tenant.

In this guide, you will learn the four guarantees the law allows, understand why there can be only one per agreement, learn the cap on the security deposit and the (serious) liability of the guarantor, and discover how to choose the most suitable guarantee — all under the Tenancy Act.

What guarantees are available in a residential lease?

Lei 8.245/1991 (art. 37) provides four types of guarantee — and only these:

• Security deposit: in cash (limited to three months), in movable property or in real property.

• Surety: a person (the guarantor) takes responsibility for the tenant's debt.

• Rent guarantee insurance: an insurer guarantees payment, against a premium paid by the tenant.

• Fiduciary assignment of investment-fund shares: an investment given as security.

The choice is, as a rule, the landlord's, and must be expressly stated in the agreement. Each type has different advantages and costs — and the most suitable one depends on the profile of the parties and the value of the lease. There is no “best” guarantee in the abstract; there is the most suitable one for each case.

Can I require more than one guarantee? The golden rule

No. This is the most important rule — and the most broken — about guarantees. The law allows only one guarantee per agreement and prohibits requiring more than one, on pain of nullity. More: requiring two guarantees in the same agreement is, expressly, a criminal misdemeanor (art. 43 of Lei 8.245/1991).

In practice, this means the landlord must choose: guarantor OR security deposit OR rent guarantee insurance OR fiduciary assignment — never a combination. Charging a security deposit and still requiring a guarantor, for example, is irregular, and the tenant may challenge that requirement. It is a common mistake, especially in agreements drawn up without advice. Knowing this rule protects the tenant from abuse and the landlord from nullities that weaken the agreement.

How much can be charged as a security deposit? And the guarantor's risk?

Two practical points often raise doubt:

Cash security deposit: it may not exceed the equivalent of three months' rent (art. 38, §2 of Lei 8.245/1991), and must be deposited in a savings account, returning to the tenant at the end (with the interest earned), unless there are outstanding debts. Charging more than three months is irregular. For this reason, proposals asking for “six months' deposit” do not hold up when the deposit is in cash.

The guarantor's liability: being a guarantor is serious. The guarantor is liable for the tenant's debt — and, as a rule, may have their residential property attached, as an exception to the homestead exemption (Lei 8.009/1990, recognized by case law for lease surety). In other words, the guarantor may lose even their only property over a debt that is not their own. In certain situations, the guarantor may be released from the surety, subject to the legal rules. Anyone who agrees to be a guarantor must be fully aware of this risk.

A practical example: Ricardo and Carla's “doubled” deposit

Ricardo and Carla found the ideal apartment in São Paulo, but the agency imposed a condition: three months' cash security deposit and, on top of that, a guarantor. With no guarantor available and finding the requirement odd, the couple nearly gave up on the property.

When they sought advice, they discovered the requirement was irregular: the law allows only one guarantee per agreement, and combining a security deposit and surety is void — and even a misdemeanor (art. 43). As a result, the couple were able to negotiate: they chose one guarantee (the cash security deposit, limited to three months), dropping the guarantor requirement. The agreement was closed in a lawful and balanced way. Without knowing the rule, they would have accepted an abusive imposition — or lost the property. Knowing the law gave them bargaining power.

The most common (and costly) mistakes

• Requiring (or accepting) more than one guarantee. It is void and a misdemeanor — choose only one.

• Charging a cash security deposit above three months. The law caps it; the excess is irregular.

• Being a guarantor without understanding the risk. The guarantor may have even their only property attached.

• Not depositing the security deposit in a savings account. The law requires it; non-compliance creates liability.

• Choosing the guarantee without analyzing the case. Each type has different cost and security.

Checklist: setting the lease guarantee

• Choose one guarantee (art. 37) — never combine them.

• If it is a cash security deposit, respect the three-month cap and the deposit in a savings account.

• If it is surety, make sure the guarantor understands the risk.

• Consider rent guarantee insurance as an alternative to a guarantor (cost vs. speed).

• State the guarantee expressly in the agreement.

• Rely on a real estate lawyer to draft the clause.

Frequently asked questions about lease guarantees

What guarantees are available in a residential lease?

Lei 8.245/1991 (art. 37) provides four: a security deposit (in cash, movable or real property), surety (the guarantor), rent guarantee insurance (an insurer) and the fiduciary assignment of investment-fund shares. These are the only admissible types. The choice is, as a rule, the landlord's, and must be set out in the agreement. Each one has different advantages and costs for landlord and tenant, and the right one depends on the case.

Can I require a guarantor and a security deposit at the same time?

No. The law allows only one guarantee per agreement and prohibits requiring more than one, on pain of nullity — requiring two is, in fact, a criminal misdemeanor (art. 43 of Lei 8.245/1991). The landlord must therefore choose: guarantor OR security deposit OR rent guarantee insurance OR fiduciary assignment. Charging a security deposit and still requiring a guarantor in the same agreement is irregular, and the tenant may challenge that requirement.

How much can be charged as a cash security deposit?

A cash security deposit may not exceed the equivalent of three months' rent (art. 38, §2 of Lei 8.245/1991), and must be deposited in a savings account, returning to the tenant at the end, with the interest earned, unless there are outstanding debts. Charging more than three months as a deposit is irregular. The deposit may also be taken over movable or real property, under its own rules.

Can a guarantor lose their home because of the rent?

Yes, as a rule. The law and case law allow the attachment of the lease guarantor's residential property, as an exception to the homestead exemption (Lei 8.009/1990). For this reason, being a guarantor is a serious responsibility: the guarantor is liable for the tenant's debt and may have assets, including their only property, seized. In certain situations the guarantor may be released from the surety, subject to the legal rules.

What is the best lease guarantee in São Paulo?

There is no single answer — it depends on the profile of the parties. Rent guarantee insurance avoids the need for a guarantor and is quick, but has a cost for the tenant; a cash security deposit is simple, but limited to three months; a guarantor has no direct cost, but requires someone willing to accept the responsibility. In São Paulo, where the market offers every option, a real estate lawyer helps choose the most suitable guarantee and draft it securely.

Do I need a lawyer to set the lease guarantee?

It is advisable, especially in higher-value leases or when surety or a deposit over real property is used. A lawyer ensures only one guarantee is required (avoiding nullity), drafts the clause correctly and advises on the consequences of each type — protecting landlord, tenant and guarantor. A real estate lawyer in São Paulo avoids common mistakes that lead to conflict and liability.

The right guarantee protects both sides

The guarantee defines the security of the lease — and, if chosen or required the wrong way, it becomes a source of nullity and conflict. Knowing the four types, the rule that there can be only one, the cap on the security deposit and the guarantor's real risk is what makes it possible to close a balanced agreement, secure for the landlord and fair for the tenant.

For the guarantor in particular, awareness of the risk is essential: being liable for another person's debt, potentially with one's own property at stake, is not a decision to make without information. In every case, legal guidance avoids costly mistakes.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work in real estate law and leasing — advising on the most suitable guarantee, drafting the clause securely and protecting landlords, tenants and guarantors. If you are about to rent or to become a guarantor, it is worth understanding the guarantee well before signing.

Talk to our team on WhatsApp: +55 11 95901-1854 — and set your lease guarantee with legal certainty.