Posted By Larry Tolchinsky on March 7, 2017
For tenants moving out of apartments, condos, homes, or other residential dwellings here in Florida, they have the right to expect the return of their security deposit (provided they have not damaged the property and they themselves have followed the notice requirements (see below) required under the law). However, landlords routinely violate the law by keeping some, if not all, of that money.
What should a tenant do when a landlord wrongfully keeps their security deposit? Florida law allows a tenant to file a lawsuit against the landlord to recover his or her security deposit. The good news is that the law allows the tenant to recover their attorney fees for doing so. Which means, in many instances, the tenant will not have to pay any money to the lawyer, unless the lawyer wins the lawsuit.
Florida Statute 83.49 Controls Security Deposits
Florida Statute 83.49 controls residential tenant security deposits. For details, including the definition of a “security deposit,” check out the discussion in our recently updated post, “How to Get a Refund of Your Security Deposit.”
When landlords fail to return the tenant’s security deposit, then the tenant has the option to sue the landlord for its return. In fact, it’s one of the most common basis for a landlord-tenant lawsuit here in Florida. For more, read “Top 13 Reasons to Sue a Florida Landlord.”
Security Deposit Lawsuits – Notice Requirements
Below we have provided two examples of tenants who sued their landlord for the return of their security deposit. Both deal with the issue of “notice.”
There is a duty placed on the residential landlord to provide notice to the tenant that a claim is being made against the tenant’s security deposit. There is also a duty on the tenant to give notice that he or she is moving out. The tenant loses in the first case; the tenant wins in the second one.
A. Plakhov v. Serova: Tenant Must Give Notice Before Vacating Rental Unit.
In Plakhov, the tenant did not give the required 7-day notice to the landlord before moving out, so the landlord’s legal duty to provide notice of intent to claim part of the security deposit was excused. The landlord was awarded damages for unpaid rent and was allowed to keep the security deposit.
In this case, a condo owner leased a Florida condo unit to a tenant. They signed a written lease agreement which stated the monthly rent as $2200, and the beginning of the lease was in November 2008.
When the lease was signed, the tenant paid the owner / landlord the first and last month’s rent as well as another $2200 as a security deposit. The landlord deposited the security deposit with a real estate management company.
Afterwards, the tenant stopped paying rent. First, he only paid part of the rent in January ($900) and then stopped paying rent entirely.
Landlord-Owner Foreclosure and Unpaid Condo Fees
The tenant was worried because he had been sued by a bank in a foreclosure lawsuit against the condo owner. The tenant was also worried due to the fact that the condo association gave him notice that the condo owner was behind in paying the condo fees.
The owner and the bank negotiated a deal and the foreclosure lawsuit was then dismissed. The owner also paid all her past-due condo fees. The owner was in good standing with her lender and the condo board as of February 2009.
Two months later, the tenant moved out. The owner immediately listed the condo for rent, but it took several months to rent the condo again. A new tenant moved into the unit in November 2009.
Notice to Tenant
Meanwhile, the owner also sent a “Notice of Intention to Impose Claim against Security Deposit” to the tenant. It was dated April 28, 2009, and sent in care of the tenant’s attorney. It was sent certified mail, return receipt requested.
In the notice, the tenant was informed that if he did not object to the landlord’s imposition of a claim against the security deposit within fifteen (15) days from the date of receipt (April 29, 2009), then the owner was entitled to keep the deposit.
The tenant sued the landlord and lost. The landlord was granted a final judgment for past unpaid rental payments as well as the full security deposit.
Why did the tenant lose the lawsuit? The court explained:
- The foreclosure lawsuit against the owner / landlord did not mean that the tenant had the legal right to breach his lease agreement. The tenant had a legal duty to keep paying rent.
- The owner’s delinquency in paying condo fees likewise did not give the tenant the legal right to breach his lease agreement. The tenant had a legal duty to keep paying rent.
- Florida Statute 83.49(2) does have notice requirements for written notice to the tenant but that law only applies to landlords who own five or more rental units. Here, the owner was only renting the single condo. So, she did not have to meet the notice requirements.
- Florida Statute 83.49(5) requires the tenant to give notice, too. Here, the tenant did not give notice to the landlord that he was moving out. This failure relieves any landlord of giving notice regarding keeping the security deposit.
B. Malagon v. Solari: Tenant’s Attorney’s Fees Paid by Landlord
In Malagon, the landlord did not give legal notice that he was keeping part of the tenant’s security deposit, he just kept it. The tenant sued for the entire deposit and won; the court held that the landlord forfeited any rights to the security deposit by failing to give notice.
On appeal, the landlord did get to keep some of the deposit. However, the court also ruled that the tenant’s legal fees would be partially paid by the landlord as provided by law.
In this case, the tenant and the landlord sued each other. The tenant filed a lawsuit for return of the security deposit and the landlord responded with a “counterclaim” against the tenant.
Prevailing Party Gets Legal Expenses Paid
On appeal, each side won a partial victory. The tenant was considered the “prevailing party” in the case because he did recover something, even though he was awarded less than the total amount he was seeking in the case.
Since the tenant was held to be the “prevailing party,” then he could get his attorneys’ fees and court costs paid by the landlord. This is allowed under Florida Statute 83.49(3)(c).
Why Were Only Partial Legal Fees Paid?
The tenant could not get 100% of his legal expenses paid for by the landlord. The appellate court explained that when the tenant loses some claims to the landlord, (having “only limited success,”) then the tenant must only be awarded those attorneys’ fees and court costs that are reasonably related to his winning results.
In other words, the landlord did not have to pay the tenant’s attorney’s fees and court costs on the counterclaim arguments that the landlord won in the lawsuit.
The landlord had to pay only the legal expenses that pertained to the claims against the landlord that the tenant won in the case.
Do You Have a Security Deposit Issue With Your Former Landlord?
If you are moving out of your rental unit, then you have a right to the return of your security deposit. That’s the law here in the State of Florida. However, that does not mean that you won’t have to file a lawsuit to get that money returned to you by the landlord.
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. 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.
For more on landlord tenant issues, check out the following:
- How to Get a Refund of Your Security Deposit from the Landlord When Renting a Home or Apartment
- Can Your Landlord Keep Your Security Deposit?
- Renting Is Becoming Popular Again in South Florida: Protect Yourself Under Florida Landlord Tenant Law.
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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