In Florida, renting a house or apartment does not come with a legal requirement that the tenant pay a security deposit to the landlord; there is no statute that forces the landlord to demand one.
Still, it is very rare for the landlord not to require a security deposit be paid as a condition of renting the place. Often, this security deposit will become a bone of contention between the tenant and the landlord. Sometimes, the dispute can involve significant sums, and the controversy will escalate to form the basis of a tenant’s rights claim against the landlord under Florida law.
Accordingly, it is vital that anyone renting a home, condo, townhouse, or apartment here in Florida understand Florida security deposit laws. It is a wise tenant that understands his rights and obligations regarding the security deposit before he agrees to pay it to the prospective landlord.
If your Florida Condo is damaged in a hurricane, both federal and state law may apply to any attempt by the landlord keep your security deposit.
Based upon our past experience representing tenants in landlord-tenant disputes, here are five things that every Florida tenant needs to know about their security deposit.
1. How Florida Law Governs Residential Security Deposits: It’s Complicated
The law is complicated regarding Florida security deposit disagreements. To determine the rights and remedies of a Florida tenant regarding their security deposit, several different legal sources must be researched and investigated.
It is a mistake to think that a tenant’s concern that they have been wronged by a landlord regarding a security deposit is a simple or routine matter. Sometimes, it is. Often, it is not.
Putting aside the possible federal impact (discrimination, for instance), we will focus on Florida law only. First, there are the statutes themselves.
A. Florida Statutes
Many years ago, the Florida Legislature passed a specific law that defines the duties for both the landlord and the tenant regarding the residential security deposit. It is found in Florida Statute 83.49.
As for the definition of “security deposit,” it is found in Florida Statute 83.43(12), which provides that security deposits are “… 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.”
For what that “monetary damage to the landlord” might include, read our discussions in “Landlord Tenant Disputes After A Major Storm (Hurricane)” and What is Normal Wear and Tear Relating to a Tenant Security Deposit?
B. Florida Court Case Precedents
Second, there are also many court cases that have decided particular tenant claims; these are published court opinions. Legal disputes regarding security deposits may have these precedents to support a tenant’s claim.
For two examples of court cases that pertain to a tenant seeking the refund of his Florida security deposit, see our earlier discussion in “Residential Security Deposit Lawsuits.”
C. Florida Contract Law
Third, there is the law of the contract itself. The lease agreement will define the legalities of the particular situation involving the tenant and his landlord. For instance, see the Florida Supreme Court’s approval of specific forms to be used by residential landlords when contracting with the tenant regarding the payment of a security deposit. See., e.g., Florida Bar Re Approval Of Forms, 591 So.2d 594 (Fla. 1991).
For more, read: Lease Agreement Lawsuits in Florida
Under Florida contract law, parties are able to contract special rights and duties for their particular situation that may mean the waiver of legal protections. It is possible for the unwise tenant to sign a lease agreement that takes away protections that he would otherwise have under Florida real estate (landlord-tenant) law.
2. Limitations on the Amount of the Security Deposit: There Isn’t One
In Florida, the landlord can ask for as high an amount for a security deposit as he wants: there is no legal limit on how much the landlord can charge here. However, the tenant should know that in standard practice, that security deposit should ask no more than an amount equivalent to one month’s rent, or perhaps one and a half of the monthly rent payment. In some locations, this amount will vary (Miami may be higher than Tampa, for instance.)
There’s no law setting a special amount for a security deposit in Florida. If the landlord wants a deposit that is higher than 6 weeks rent, or the standard for the local area or community, then it may be a red flag to the tenant to keep looking elsewhere for a place to live.
3. Protecting the Security Deposit: The Landlord Cannot Spend It
Under Florida Statute 83.49, the landlord cannot take the security deposit money and spend it. He has a legal duty to safeguard the security deposit. He cannot in any way make use of this money until he is allowed to do so under Florida law (the money is actually due the landlord).
The landlord has three choices under the statute in how he safeguards and protects his tenant’s security deposit. This is done by:
- Placing the security deposit in a separate, non-interest bearing bank account. The account must be at a Florida banking institution, and it must be for the benefit of the tenant;
- Holding the security deposit in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant. Here, the tenant must receive and collect interest in an amount of at least 75% percent of the annualized average interest rate payable on such account, or interest at the rate of 5% per year, simple interest, whichever the landlord elects; or
- Posting a surety bond, executed by the landlord as principal with the surety company authorized and licensed to do business in Florida as a surety. In addition to posting the surety bond, the landlord shall pay to the tenant interest at the rate of 5% per year, simple interest. (There are more details here, see Florida Statute 83.49(1)(C), which include the number of rental units, etc.)
In Florida, the landlord has a duty to protect the full amount of the security deposit. As a general rule, the landlord will place the amount in a separate bank account, in a bank that is recognized as a financial institution by the State of Florida. It cannot be mixed up with other monies. There are instances where he can opt for a surety bond. In all cases, the tenant’s security deposit must be financially protected as provided for in the law. Failure to do so results in serious liabilities for the landlord.
4. Refunding the Security Deposit: The Steps to Getting Your Money Back
How the Florida landlord refunds the security deposit to the tenant is set out in Florida Statute 83.49(3). There are specific steps that must be followed.
15 Day Deadline
The trigger for refunding and returning the security deposit to the tenant is when the tenant moves out. In legal terms, the “premises” are “vacated.” The landlord has a deadline to meet. He has 15 days to return the security deposit (together with interest if it was required).
30 Day Deadline
But things are different if he wants to make a claim on the security deposit, and keep some of it (or all of it). Then he has 30 days to give the tenant a written notice (sent by certified mail to the tenant’s last known mailing address). If the landlord does not give this specific written notice, served in the proper way, within the 30-day time period, then he or she forfeits the right to any of the security deposit.
His legal remedy here is to file a lawsuit against the tenant for damages to the rental unit. He cannot sue until he has returned the full security deposit. If he sues, he must be prepared to lose. This is because the victorious party in the case is entitled under the law to be paid his court costs, plus a reasonable attorney’s fee, by the losing party. Florida Statute 83.49(3(c).
Notice Must Follow the Statutory Language
The notice must explain the landlord’s intention to impose a claim on the security deposit. It also has to give the reason for imposing the claim.
Under Florida Statute 83.49(3), the landlord must include 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) .
5. Fighting the Landlord’s Claim for the Security Deposit
The tenant has specific rights under Florida law to fight any attempt by the landlord to keep some of that security deposit. However, the tenant must strictly follow the statute here or waive his rights to do so.
15 Day Deadline
First, the objecting tenant has a 15 day deadline to object. It must be written. The time starts ticking on the date he receives the landlord’s notice of intent to impose a claim against the security deposit.
If the tenant misses the deadline, then 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.
If the tenant misses the deadline, then his legal remedy is to file a lawsuit against the landlord for damages. As in situations where the landlord files suit, in these cases the prevailing party is entitled to receive his or her court costs, plus a reasonable fee for his or her attorney. Florida Statute 83.49(3(c).
Florida Tenant’s Rights Lawyer Can Help With Security Deposit
The best time to consider the legalities of the security deposit is before you sign the lease. A prospective tenant can negotiate the contract provisions before you execute the contract and officially rent the place. Having your lawyer look over the lease, and negotiate the deal, is smart (and much less expensive than many realize).
If you already signed the lease and now face a problem with the landlord over your security deposit, a Florida tenant’s lawyer can be helpful in working things out with the landlord – hopefully without having to file a lawsuit.
Please feel free to give us a call for a free consultation if you have a question or concern.
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