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Rent and Run … but What About That Security Deposit?

The Break-Up Security Deposit

Ever wonder what your legal rights are when it comes to the Security Deposit once the lease is over? We’re contacted all the time by Landlords and Tenants that are very attracted to keeping it ... and why shouldn’t they be?

We’re gonna give you the ingredients but let’s be honest, we don’t expect you to make something tasty on your own. In fact, if you think you might encounter some resistance from your Landlord or Tenant, our suggestion is to bring us in to go Iron Chef on ’em. We know it’s usually only over an amount ranging from $1,000.00 to $3,000.00 and everyone knows that if you go to a lawyer, they’re probably going to charge you gazzillions to “do their best” ... but we’ll be straight with you – we’re different in a few ways.

Why We’re ... Different?
  1. We only charge bazzillions (we want your repeat business);

  2. We are business people first and lawyers second (meaning – we keep it real about your case and your options. You should be leaving us in the same if not better position than we found you);

  3. We go after the other side to pay our fees ... after all, Florida law allows us to! 83.48, Florida Statutes. We know what you’re thinking ... ”how do we do it?”

    1. No ... we don’t have to file a lawsuit every time ... most things in life are negotiable (yes, even taxes).

    2. Landlords, are you prepared to hire an attorney to tell us that you followed every procedural law for a year? Please, you wanted to save money so you had your realtor “take care of it.”

    3. Tenants, are you actually going to pay another attorney to fight us over money that you’ve already been without for a year?

    4. Landlords and Tenants ... was your walkthrough even done LEGALLY? (If all you had was a tenant, realtor, clipboard, key exchange and signature – you both have problems for us to expose ... the question is who will get to us first).

    5. See – we’ve got plenty to stir up, and Landlords don’t like us putting liens on them and Tenants don’t like us marking up their credit report (you guys want to be able to borrow money to buy a home and stop renting at some point, right???).

If you’re gonna do the home-wrecka deposit dance, here’s the laws of attraction.

Florida Law

(a) Upon the vacating of 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. 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).

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 deposit.

(b) 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.

(c) 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.

(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Florida-licensed real estate brokers and sales associates, constitutes compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and deposit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).

(4) The provisions of this section do not apply to transient rentals by hotels or motels as defined in chapter 509; nor do they apply in those instances in which the amount of rent or deposit, or both, is regulated by law or by rules or regulations of a public body, including public housing authorities and federally administered or regulated housing programs including s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended, other than for rent stabilization. With the exception of subsections (3), (5), and (6), this section is not applicable to housing authorities or public housing agencies created pursuant to chapter 421 or other statutes.

(5) Except 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.

(6) For the purposes of this part, a renewal of an existing rental agreement shall be considered a new rental agreement, and any security deposit carried forward shall be considered a new security deposit.

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. There is a rebuttable presumption that any new owner or agent received the security deposit from the previous owner or agent; however, this presumption is limited to 1 month’s rent. This subsection does not excuse the landlord or agent for a violation of other provisions of this section while in possession of such deposits.

(8) Any person licensed under the provisions of s. 509.241, unless excluded by the provisions of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his or her license by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation in the manner provided in s. 509.261.

(9) In those cases in which interest is required to be paid to the tenant, the landlord shall pay directly to the tenant, or credit against the current month’s rent, the interest due to the tenant at least once annually. However, no interest shall be due a tenant who wrongfully terminates his or her tenancy prior to the end of the rental term.

This article is written by Florida attorneys and only considers Florida law in place at the time of publication. This article should not be relied upon as a substitute for legal advice and one should always consult with an attorney in their state before making any legal decisions.

At The Estate Plan, we take pride in serving our clients with compassion, competence and creativity. After all, we’re all unique. It takes a special comfort and confidence to trust someone to handle protecting one’s family and possessions. We appreciate being that person for so many families. If you are interested in coming in for a consultation, do not hesitate to contact us at (305) 665–8888.

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