Ausencia de regulación expresa del depósito de garantía en la Ley de inquilinato.

Abstract

This research examines the role of the security deposit in urban lease contracts in Ecuador and argues that its current configuration results from a widely accepted market practice, yet one that lacks an express legal framework in both the Tenancy Law and the Civil Code. This mismatch reveals a legal problem grounded in the absence of clear rules on essential aspects of the security deposit, including its quantitative limits, legal nature, custody, return, and practical functions. In that context, the regulatory gap affects legal certainty for both parties and may also have an impact on the effective enjoyment of the right to adequate housing. On this basis, the study reconstructs the social origins of the tenancy regime and the evolution of the special statutory framework, examines the supplementary reference to the Civil Code, and analyses the legal nature of the security deposit through categories such as a loan for consumption, a civil deposit, a monetary security, and a disguised penalty clause. It also considers how the figure is shaped by contractual practice and by judicial approaches that have addressed disputes over withholding or refunding the deposit. Finally, drawing on comparative law experiences, the research proposes guidelines for a minimum statutory regime within the Tenancy Law, aimed at setting caps, custody rules, return deadlines, and standards to control abusive clauses