Posted By Larry Tolchinsky on July 21, 2015
Last Update: 1/18/17
When you rent an apartment or condo here in Florida, the landlord will typically require that you give a security deposit before you can move into your new home. This is pretty much standard operating procedure for rentals; most tenants know they will have to hand over several hundred dollars (or a month’s rent) when they sign their lease agreement. However, as most renters have learned the hard way, it is much easier for that landlord to take your security deposit than it is for them to return it to the tenant when the tenant moves out.
Many landlords will try to find all sorts of excuses for holding onto some, if not all, of that security deposit. One of the most popular excuses they use is the carpet needs to be cleaned or replaced. What can a tenant do under Florida law to get that security deposit back?
1. Florida Statute 83.49 Controls Return of Tenant Security Deposit
Since 1969, there has been a specific law in place to deal with landlord – tenant disputes over security deposits, which is when Florida Statute 83.49 was passed. It’s been amended several times over the years, but in essence the security deposit law deals with two big issues:
- Who gets the security deposit money after the tenant moves out?
- How must the landlord protect that security deposit money while the tenant is living in the rental property?
While Florida doesn’t protect tenants as much as some other states, the law works to keep landlords from blatantly keeping that security deposit for themselves.
Quick Facts: Many tenants move because they found a job in another state, joined the military or because of the deplorable conditions of the property, including the landlords failure to make repairs, remediate mold or to adequately address the infestation of bed bugs, cockroaches, rodents and spiders.
2. What Is A Security Deposit?
The lease itself will define how much the security deposit is for a specific rental; it can be negotiated between the landlord and the tenant. The parties can even agree not to have one.
Under Florida Statute 83.43(12), “security deposit” is defined as: “any moneys held by the landlord as security for the performance of the rental agreement, including, but not limited to, monetary damage to the landlord caused by the tenant’s breach of lease prior to the expiration thereof.”
The security deposit is money set aside to protect the landlord against damages, like the tenant leaving before the end of the lease or the tenant damaging the rental property.
3. Do Landlords Have to Keep Security Deposits in a Separate Bank Account?
When a tenant provides a security deposit, the landlord cannot just pocket the money. The landlord is legally required to protect it pursuant to Florida Statute 83.49(1) by keeping it in a separate bank account from rents and other monies. This is true whether or not the lease agreement has any language about the landlord segregating the security deposit.
If the landlord hasn’t kept the security deposit safe in that separate account, then the tenant may have an argument and claim against the landlord for “unjust enrichment.” That’s because Florida law won’t consider the money to be a “security deposit” as defined by the statute if the legal requirements aren’t met by the landlord.
For instance, in the case of Atlantis Estate Acquisitions, Inc. v. DePierro, the DePierro family moved into a residential rental property owned by Atlantis Estate Acquisitions. They signed a year’s lease.
The tenants paid for the entire year’s rent lump sum when they signed the lease. Their lease agreement also provided that a security deposit equal to their first month’s rent would be provided, in addition to a pet deposit.
There was trouble over the course of the tenancy; the police were called out to the home for parties given by the teenage DePierro kids. After that, the landlord came to inspect the home and discovered a lot of damage to the home’s interior. The landlord sent a notice of termination of tenancy and the tenants moved out, but claimed that they repaired the property before they left.
Then, the DePierros demanded a return of their security deposit. The landlord refused, so they sued.
From the evidence, the trial court found that the landlord failed to keep the security deposit in a separate account according to Florida Statute 83.49(1). Since it was not segregated, the trial judge ruled it was legally not a “security deposit” but instead “advance rent” paid by the DePierros and by keeping it, the landlord was guilty of unjust enrichment.
The tricky part in this case: most tenants don’t pay for the entire year’s rent in one check, like this family did. This made a difference in their case on appeal.
POINT: The tenant can get their security deposit back if the landlord cannot prove that the security deposit was kept in a separate account as required by Florida law. The landlord cannot “unjustly enrich” him or herself with the tenant’s security deposit money.
4. Procedure for Security Deposit to be Returned by Landlord
In most Florida leases, there are typically provisions for returning the security deposit to the tenant. If the lease doesn’t give details on how the security deposit is to be returned, then Florida Statute 83.49 will provide the details.
Under Florida Statute 83.49, once the tenant moves out he or she has to give notice to the landlord (the notice given by the tenant should include the tenants forwarding address, among other things). After the tenant moves out, Florida Statute 83.49 gives the landlord a 15 day deadline to return the security deposit back to the tenant.
However, if the landlord decides to make a claim against that money, then he or she has 30 days to give the tenant proper legal notice (in writing and sent by certified mail) that he or she is making a claim against the money. The notice must provide details, and the landlord has to follow the language of Florida Statute 83.49(3)(a).
If the landlord doesn’t follow the the law, then the tenant must object within 15 days or the landlord may have an argument that the tenant has waived their claim for the security deposit. If there is no objection, the landlord can just deduct what he or she thinks is just for their claim and then send the remainder to the tenant. The landlord then has 30 days from the date of his or her notice to the tenant to send back the net deposit amount to the tenant.
Please note, this outline lays out the general rules; however, there are exceptions. Also, there are other legal arguments that tenants can make against a landlord to get their money back. How landlords make claims against security deposits and what tenants can do to fight over zealous landlords will be discussed in subsequent posts.
A good piece of advice if you are having a problem with your landlord returning your security deposit is to speak with an experienced Florida real estate lawyer to learn about your rights because the law provides for the payment of attorney fees in the event the landlord is determined to have violated the law (which means, in many instances, the tenant will not have to pay any money to the lawyer, unless the lawyer wins the case). Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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