Security Deposit Basics In Florida
If you’re a landlord, property manager or owner of a Florida residential investment property(s), you’re probably familiar with Florida Statutes, 83.49. In sum, upon your tenant vacating the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.
Requirements For Security Deposit Notice
Per F.S. 83.49, the notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of $__________ upon your security deposit, due to_____________. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address) .
Landlord’s Failure To Comply With Security Deposit Notice Requirements
If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.
When Can The Security Deposit Be Deducted?
Unless the tenant objects to the imposition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.
Can I Get Back My Attorney’s Fees And Costs?
Yes, if either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.
Are There Exceptions To The Security Deposit Notice Requirements?
With law, if you’re lucky, there are often exceptions to the rule. In particular, 83.49(5) of Florida’s residential security deposit statute, states:
“[e]xcept when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.” Florida Statute §83.49(5) (emphasis added).
In the case of Plakhov v. Serova, 126 So. 3d 1221 (Fla. 4th DCA 2012), a residential landlord filed suit against its tenant, seeking rent the tenant failed to pay. Although the tenant had provided the landlord with a security deposit in the amount of $2,200.00 at the inception of the lease, the landlord did not return the security deposit nor provide its tenant with any notice of the landlord’s intent to make a claim against the security deposit. Following a non-jury trial, the Circuit Court for the Seventeenth (17th) Judicial Circuit entered judgment in favor of the landlord and the tenant appealed. Upon appeal, the District Court affirmed the Circuit Court’s ruling, holding, in pertinent part, that the landlord’s obligation to provide notice of its intent to impose a claim on the tenant’s security deposit was excused by the tenant’s failure to provide the requisite seven (7) day notice prior to vacating the premises. Accordingly, the security deposit remained in the possession of the landlord, and in its decision, the Court noted that the landlord and tenant would be free to litigate over the entitlement to the security deposit without leaping any procedural hurdles. Id. Ultimately, the 4th DCA commented that the landlord established damages (unpaid rent) far in excess of the security deposit, and therefore held that the trial judge properly applied it to reduce the amount of damages owed by the tenant, and that the tenant had the opportunity to establish his right to the security deposit within the meaning of Florida Statute §83.49(5), but was unable to do so. See also Laster v. Rhoden, 19 Fla. L. Weekly Supp. 666a (Broward County 17th Cir. May 2, 2012) (finding that even though the tenant and landlord had discussed the tenant’s vacation of the property, because the tenant did not give the requisite 7 days written notice to the landlord advising of the specific date upon which the tenant would be vacating the property, the landlord was relieved of its duty to send a notice of claim against the security deposit).
While the failure of a tenant to provide the requisite 7 day notice alleviates a landlord’s obligation to provide notice of its intent to impose a claim on a tenant’s security deposit, landlords should recognize that Florida Statute §83.49(5) expressly provides that such failure does not serve to waive any right a tenant may have to the security deposit or any part of it. Unfortunately, §83.49(5) does not address whether, in such situation, the landlord is required to first return the security deposit to the tenant. The only section of the statute that makes any mention of a landlord’s duty to return the security deposit is §83.49(3)(a), which states that:
“[i]f the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.” Florida Statute §83.49(3)(a) (emphasis added).
When a tenant violates Florida Statute §83.49(5) by failing to give 7-day notice when required under the security deposit statute, the landlord is statutorily relieved from any notice obligations that may have otherwise been owed to a tenant pursuant to Florida Statute §83.49(3)(a), including any obligation to return the security deposit prior to pursuing an action for damages against the deposit. Arguably, if a landlord is not obligated to notify its tenant of the landlord’s intent to impose a claim on the security deposit, logic dictates that the landlord is rightfully permitted to make such a claim against the security deposit without being forced to first return the security deposit to the tenant. If the Legislature intended that the landlord be required to first return the security deposit before making any claim to it, there would be a provision in §83.49(5) similar to the provision in §83.49(3)(a) quoted in bold font above. There is not, which can only be interpreted as a purposeful omission.
Moreover, if the tenant were to automatically be entitled to its security deposit despite its failure to provide the requisite notice, Florida Statute §83.49(5) would serve no purpose. How could a landlord, which is statutorily within its right to assert a claim against a security deposit without notice to its tenant due to the tenant’s violation of Florida Statute §83.49(5), assert such a claim without notice if the law were to require that the security deposit first be returned to the tenant? It would make no sense because, under such circumstance, it would be necessary for the landlord to notify the tenant in order to assert a claim against the security deposit.
The fact remains that, in such a situation, the tenant is permitted to pursue other legal recourse in an effort to establish any right the tenant may have to the security deposit. This doesn’t mean that the landlord’s possession of the security deposit would be automatically deemed wrongful; it simply means that the parties would be able to litigate over entitlement to the security deposit, as expressly noted by the 4th DCA in the Plakhov decision. Considering (1) the Court’s language in the Plakhov decision; (2) the fact that §83.49(5) does not expressly require the landlord to return the security deposit prior to making a claim against it (keeping in mind that the Legislature clearly contemplated such a requirement in §83.49(3)(a) yet omitted it from §83.49(5)); and (3) that the statute would be pointless if landlords were required to return security deposits to tenants despite the failure to provide the 7 day notice, the only logical conclusion is that landlords cannot automatically be deemed to assert wrongful dominion over a security deposit in a situation in which the landlord refuses to return a tenant’s security deposit after the tenant vacates the premises in breach of the lease and without providing the requisite statutory notice.
The fact that the Legislature expressly provided that the “failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action,” demonstrates that the statute does not always require the deposit be returned to the tenant, thus forcing landlords to pursue common law actions on the back-end. The Legislature clearly contemplated situations in which tenants may be forced to pursue common law remedies as a result of landlords refusing to return deposits.
If you’re having a Florida residential or commercial security deposit dispute, need assistance with an eviction and/or have another landlord tenant related dispute, the experienced and knowledge landlord-tenant attorneys and support staff at the Law Office of Ryan S. Shipp, PLLC are here to assist. Contact us today @ 561.699.0399 to learn more about our services and competitive industry rates. We’re located in Lantana, we serve all 67 counties throughout the State of Florida.
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