It's The Law
Security Deposit Gets Special Treatment
I am having some problems with my landlord. We are near the end of our lease and I am concerned he will keep the security deposit. What are my rights?
I assume you are a residential tenant. Florida law provides substantially greater protection for residential tenants than for commercial enterprises. Deposits under residential leases are addressed specifically and in detail by Section 83.49, Florida Statutes. That statute is intended primarily to protect tenants.
The statute addresses monies deposited as security or as advance rent other than for the next immediate rental period. The landlord has three options for holding deposits. The landlord can hold the money in a separate non-interest bearing account in a Florida bank, but must not comingle the deposit with any other funds. Alternatively, the landlord can deposit the money in a separate interest bearing account in a Florida bank, with the tenant to receive at least 75% of the interest or interest at the rate of 5% per year, whichever the landlord elects. There is a third option where the landlord can post a surety bond. If the landlord elects the surety bond, the landlord must also pay the tenant interest at 5% per year on an amount equal to the deposit. If a surety bond is posted, the landlord can access the deposit funds.
The landlord has to tell the tenant where the funds are deposited within 30 days of receipt and give the tenant a copy of the statutory requirements for holding deposits. If the landlord changes the manner or location for holding the deposit, the landlord must notify the tenant within 30 days of the change.
After the tenant vacates, the landlord must return the deposit to the tenant within 15 days or, if the landlord intends to make a claim against the deposit, give written notice to the tenant by certified mail within 30 days of termination of the lease to the tenant's last known mailing address. Except as otherwise provided by terms of a written lease, any tenant who vacates or abandons the premises prior to expiration of the terms specified in the lease or any tenant who vacates or abandons premises under a week-to-week, month-to-month, quarter-to-quarter or year-to-year lease, is required to give the landlord at least 7 days written notice by certified mail or personal delivery of the tenant's intent to vacate or abandon and the notice must include an address where the tenant may be reached. If the tenant does not give that notice, then the landlord is not required to provide notice of a claim against the security deposit.
If a tenant does not object to the landlord's claim within 15 days after receipt of the claim, the landlord may deduct the claimed amount and send the balance to the tenant within 30 days after date of the landlord's notice of intention to impose a claim on the deposit.
The statute is strictly applied. If a landlord does not comply with the notice requirements for deposits, the landlord loses right to claim the deposit. That is true even if the tenant has failed to pay rent and left the property in a shambles. The tenant can sue for the deposit if a landlord does not comply with the statute and win. The tenant can even file a counter claim for the deposit if the landlord sues for property damage and unpaid rent and the landlord would have to pay the deposit to the tenant even if the landlord gets a judgment for far more than the deposit. The winner in a lawsuit over the deposit gets attorney's fees as well. That makes it very important that landlords follow the statute. But, even the landlord wins sometimes, as in the recent case of Atlantis State Acquisitions, Inc. v. Depierro.
In Depierro, the lease required the tenants to pay $66,000.00 in advance for 12 months rent and an additional deposit of $6,000.00. The tenants made those payments to the landlord at time they signed the lease. After the tenants moved into the property, the landlord got complaints from other tenants, police were called to the premises and the tenants significantly damaged the interior. The landlord terminated the lease and directed the tenants to leave because of the intentional damage and misuse of the premises. The tenants moved out, but claimed they repaired the property before they left.
The tenants sued for return of the rent money. The Trial Court ruled in favor of the tenants holding that the landlord's failure to deposit the rent in a segregated account as required by Section 83.49, Florida Statutes was controlling, and further that retaining the rent would unjustly enrich the landlord.
The Appellate Court reversed. It explained the lease was for a period of 1 year with the entire $66,000.00 in rent due at beginning of the term rather than in monthly installments. It noted the tenants had negotiated a reduced rental in exchange for the lump sum payment. That made the rental payment period yearly and the rent not held for future rental, but paid for the current year's rental in accordance with the lease agreement. Since the payment was not advance rent within the meaning of the Landlord and Tenant Act, the rent belonged to the landlord.
Florida's Residential Landlord and Tenant Act is a minefield for both landlords and tenants. Before signing or preparing a lease, both parties should retain an experienced attorney. The need for good counsel is magnified when problems arise. Trying to get through the minefield on your own may be penny wise but pound foolish.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: firstname.lastname@example.org or by fax, (239) 642-0722 or
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