Last Update: 1/25/19
Knowing whether or not damage is caused by “normal wear and tear” impacts how much money, if any, the landlord can deduct from the tenant’s security deposit.
Wear And Tear Is The Main Reason For Security Deposits
In Florida, most residential landlords will likely ask their tenants for money as security for their tenant’s future obligation to pay rent and maintain the premises. That security money is “on deposit” with the landlord. Meaning, it is not the property of the landlord and therefore the landlord has a legal obligation to keep the money safe. This deposit can serve several purposes, but one of the main reasons is to compensate the landlord for excessive wear and tear caused by a tenant.
The Florida legislature passed a specific law controlling how security deposits are to be safeguarded for residential tenants.
Florida’s Security Deposit Law
Florida Statute 83.49 controls residential security deposits and the duties of a landlord to protect and return that money to the tenant. If the landlord fails to obey this law, then the tenant can sue the landlord in a Florida court of law. If the tenant wins, then the landlord will have to return the security deposit to the tenant, pay the tenant’s court costs, and pay the tenant’s legal fee.
What Is “Normal Wear and Tear” Under Florida Law?
Florida law recognizes that the condition of an apartment and its fixtures (appliances, wall and window coverings, carpets, etc.) will deteriorate over time. For example, curtains will eventually fade because of sun exposure, and hanging pictures and mirrors will result in leaving holes in the walls. For this reason, a landlord is generally not permitted to keep any amount of a security deposit just because the premises and its contents are in need of repair, replacement or maintenance.
Under the law, “normal wear and tear” is not considered causing damage to property. Meaning, the reduction in the value of property caused by normal wear and tear cannot be deducted from a tenant’s security deposit.
For instance, in a 2011 Broward County case, the tenant won a lawsuit against the landlord over failure to return the security deposit. The landlord deducted the cost of carpet cleaning; general cleaning of the home and driveway; and painting of the interior, from the security deposit.
The court ruled that these expenses were “normal wear and tear” and the cost to address these issues should not have been deducted by the landlord from the tenant’s security deposit. See, Burley v. Mateo, 18 Fla. L. Weekly Supp. 624a (Broward County 2011).
Examples of Normal Wear and Tear
Paint on the walls of an apartment will fade and get dirty over time. This is a naturally occurring condition which isn’t caused by a tenant. As part of ordinary maintenance, a landlord should freshen up an apartment with a new coat of paint every time a new tenant occupies the premises.
In addition, carpets fade and tear over time. Flat, worn or discolored carpet does not mean that the tenant actively damaged the apartment. Rugs don’t last forever.
Other instances of “normal wear and tear” may include:
- Rust in an oven
- Grease in a stove hood
- Interior doors not properly closing
- Toilets leaking
- Loose grouting and bathroom tiles
- Vinyl flooring worn thin
- Worn countertop
- Loose hinges or door handles
- Rusty shower rod, drain and tub
- Dirty or faded lamp or window shades
- Pin holes in the wall where picture frames were hung.
If the lease does not define what is considered to be “normal wear and tear,” or what the tenant is expected to do at “move out,” then Florida common law (the rulings of past court cases) will control how a dispute will be resolved.
As a result, most Florida leases will have language detailing what the landlord expects the tenant to do when vacating the premises. For example, the tenant may be asked to pay for the carpet to be professionally cleaned.
**Read your lease for how “normal wear and tear” may be defined for your apartment, house, or condo.**
Can a Landlord Keep the Tenant’s Security Deposit Because of Normal Wear and Tear?
There are many instances where a landlord is allowed to keep a tenant’s security deposit, in whole or in part, to pay to repair or replace items damaged by their tenant. However, the damage must go beyond normal wear and tear.
Florida’s security deposit law exists to not only protect tenants but it also allows landlords to sue the tenant for damages over and above the amount of the security deposit, if need be.
Examples of Damage by a Tenant That Is Not Normal Wear and Tear
Damages by a tenant can be anything that harms the landlord’s property. If the tenant’s grandchildren knock a hole in the clubhouse wall, or break a window, then the tenant is liable for the repair. If the tenant fails to repair the damage, then the landlord may be able to do so on its own using the tenant’s security deposit.
If the tenant is a hoarder and the landlord has to go to special lengths to clean the premises, then those costs can be deducted from the security deposit. The costs of cleaning a filthy apartment and removing debris and trash, including conditions caused by house pets, can be deducted from the security deposit.
Another example of damage by the tenant is replacement of carpets and drapery because of the tenant’s excessive smoking. If the tenant’s smoking has left a permanent odor of stale cigarettes in the curtains and rugs, this can be considered excessive wear and tear. Meaning, the costs to clean, and even replace, these items can be deducted from the security deposit.
Quick Tip: Upon taking possession of the rental property, and upon vacating the property, it is a good idea to take pictures or video of the property and record the date and time of doing so. That way, you have proof of the condition of the property before taking possession and after you leave.
Notice A Florida Landlord Must Give In Order To Withhold Any Part of A Security Deposit For Damages To The Property
For tenants who have already signed a lease, or those who are fighting for the return of a security deposit after they’ve vacated the apartment, Florida Statute 83.49 provides guidance.
Under this Florida law, there are specific time limits for the landlord to withhold the security deposit from a tenant. Florida Statute 83.49 requires the landlord:
- to return the security deposit within 15 days of the lease termination / vacating of the premises.
- to give the tenant written notice by certified mail to the tenant’s last known mailing address within 30 days of the lease termination / vacating of the premises of his intent to impose a claim on the security deposit. The written notice must explain the landlord’s reason for imposing the claim.
Moreover, the landlord’s written notice has to include the following language (or something substantially similar):
“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).”
What Should You Do?
Before signing a lease, a tenant should inspect the property and read their lease carefully, paying specific attention to the section about the use and protection of their security deposit. This provision can and should be negotiated before the lease is signed, including clearly stating whether or not the tenant is responsible to clean the carpet and/or patch the walls at the end of the lease.
If you are having a problem with your landlord returning your security deposit because of normal wear and tear a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights.
The good news is that Florida law provides for the payment of attorney fees in the event the landlord is found to have improperly kept a tenant’s security deposit (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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