Last Update: 10/3/17
All of us have rented an apartment, condo or townhouse at one time or another during our lifetime. In some cases, after we have moved out we have had to deal with issues with our landlord related to our security deposit. In fact, a lot of calls I receive from tenants revolve around landlords keeping their security deposit.
What is the Law in Florida on Security Deposits?
A security deposit is designed to protect the landlord for any damages caused to the premises by the tenant or for any rent not paid by the tenant. How the money is returned to the tenant is governed by Florida Statute 83.49. When the tenant vacates the premises at the end of the lease term, or otherwise, it is the landlord’s responsibility to send written notice to the tenant of the landlord’s intention to keep the deposit because of damages (i.e. failing to pay rent or physical damage to the premises caused by the tenant).
The notice the landlord is required to send must be sent by certified mail within 30 days of the tenant vacating the premises (If the landlord does not make a claim against the deposit, then the deposit must be returned to the tenant within 15 days of the tenant vacating the premises). The notice must state the amount of the deposit being withheld with specific reasons stated in the letter. The landlord must also inform the tenant he or she must respond within 15 days and include an address where any objections can be mailed or the money will be forfeited to the landlord.
For example, if a tenant plans to move out prior to the end of their lease agreement, the landlord will likely want to withhold the security deposit. If the landlord fails to give written notice within 30 days of the tenant vacating the premises, the tenant is entitled to the return of their security deposit without any reduction. Please note, If the landlord fails to send proper notice and is forced to return the security deposit, the landlord still has the right to file an independent lawsuit against the tenant for damages to the premises.
Does a Tenant Forfeit their Deposit if a Tenant Breaches The Lease?
Often, a written lease in Florida will include a clause stating that the tenant forfeits his or her security deposit if the tenant breaches the lease. Under Florida law, if the clause is a liquidated damage clause it is enforceable, however, if it is a penalty clause it is not enforceable. If the amount of damages is not measurable at the time the contract is signed, it will be considered to be a liquidated damage clause. The reason being, when a tenant signs a lease that includes a security deposit, it is not yet known what damages the landlord will be entitled to recover if the tenant breaches the lease.
When is a Tenant Not Entitled to The Return of Their Security Deposit?
In my experience, the majority of security deposit cases are small claims cases since the amount in question is usually less than $5,000. Although the rules of evidence apply, the rules are to be liberally followed. Meaning, the judge can exercise his or her discretion in determining the amount of damages. So, if the landlord states the cost to clean a carpet was $500 and does not have a receipt for services, the judge can base the decision if that amount is reasonable based on his or her experience hearing similar cases.
Thus, if a lease states that the tenant is liable for normal wear and tear, including cleaning the carpet upon vacating the premises, the landlord will be permitted to apply the security deposit to clean the carpet.
Another example is where the property the tenant is renting is infested with mold. In the situation where the tenant has a mold claim against the Landlord, and the tenant wants to move out, the tenant is required to provide the landlord with a 7 day notice giving the landlord an opportunity to fix the issue (see Florida statute 83.56). Unfortunately, most tenants aren’t aware of this procedure and vacate the premises without giving notice to the landlord to fix the condition. If the tenant moves out without giving the landlord an opportunity to remedy the mold, then the landlord will likely end up keeping the security deposit (provided, of course, the landlord follows the steps outlined above).
Is Your Landlord Keeping Your Deposit?
If you are a tenant dealing with the loss of your security deposit, it’s important to understand the requirements that a landlord must follow in order for he or she to make a claim against your deposit. This is especially true if the tenant has moved out and the landlord has not returned the deposit and has never sent notice of their intent to make a claim on the deposit. Legal guidance from a Florida real estate lawyer can be very helpful in this situation.
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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