Residential Security Deposit: Rights and Duties
Having been a residential landlord for over 10 years and now a practicing attorney, I have seen my fair share of disputes arise over a Tenant’s security deposit. But, if you keep some things in mind, you can increase your chances of imposing a legally sound claim to a tenant’s security deposit if necessary.
As a caution, I will advise that there must be actual grounds (damages) for the Landlord to impose a claim against a Tenant’s security deposit. If done so improperly, Florida law permits the prevailing party to recover court costs and reasonable attorney’s fees. Common grounds to impose a claim against the security deposit include: actual damage to the property by the Tenant or their guests (exceeding normal wear and tear), rent money owed by the Tenant, and damages for breaching the lease agreement.
Security deposits are held by the Landlord for the benefit of the Tenant. It is not the Landlord’s money and consequently, there are laws in place to protect a Tenant from the wrongful withholding of their security deposit by the Landlord. In Florida, F.S. 83.49 governs the Landlord/Tenant relationship regarding a residential security deposit.
However, if there are legitimate damages, and the Landlord has followed the proper procedures, then they are entitled by law, to make a claim against the Tenants security deposit.
Landlord’s Pre-Claim Requirements: If the Landlord seeks a security deposit from the Tenant, which I would strongly advise, the Landlord needs to do certain things in order to protect any potential claim to the funds they may have:
1. The Landlord must keep security deposit separate and distinct (not commingled) from other funds. Landlord must also keep the deposit in an interest or non interest bearing bank account, or post a bond.
2. The Landlord must then notify the Tenant in writing, given in person or by mail, within 30 days informing the Tenant the name and address of the bank the deposit is being held in, type of account, the rate of interest (if any), and the time of interest payments. The law also requires the Landlord to include a copy of certain provisions of F.S. 83.49.
Landlord’s Claim Requirements: After the Tenant has vacated the property, the LL can impose a claim against the security deposit for damages of the property, rent monies owed, or breach of the lease. Of course, there are procedures that must be followed by the Landlord here as well.
1. If the Landlord does not intend to impose a claim on the tenant’s security deposit, they have 15 days to return the security deposit to the Tenant.
2. If the Landlord intends to keep a portion of the security deposit, they have 30 days to inform the tenant in writing, of their intent to impose a claim and why. This must be done by certified mail and served to them at their last known mailing address. By law, there are Notice requirements that must be met. If you are considering withholding your Tenant’s security deposit, it would be wise to speak with an attorney beforehand.
3. If the LL does not follow the above procedures, they forfeit their right to impose ANY claim on the security deposit. Also, remember that attorney’s fees and court costs are always on the table in a security deposit dispute. This gives the Landlord incentive to be prudent with their Tenant’s money; because once again, it’s the Tenant’s money, not the Landlord’s.
Tenant’s Duties: If the Tenant receives the above notice from the Landlord of his/her intent to keep some or all of their security deposit, the Tenant can object within 15 days of the date of their receipt of the notice. If not, the landlord has 30 days to return any remaining balance.
In summary, there are procedures that must be followed in order to perfect a claim on a Tenant’s security deposit. If the law is not carefully followed, not only could you lose the entire security deposit, you could also be responsible for your Tenant’s court costs and legal fees.
If you or someone you know has a landlord/tenant dispute in Southwest Florida, you should speak with a licensed Florida attorney. If you would like schedule a free consultation, or have any questions, comments, or suggestions on upcoming topics, please comment below or email GuirguisLaw@gmail.com.
This is a generalized discussion and is not intended for any particular set of facts. Nothing in this article should be interpreted as creating an attorney-client relationship or attorney-client privilege. The laws frequently change as new laws are passed and cases are decided by the courts. Anything relied upon in this or any blog, is done so at the readers own risk.
VERNON W. GUIRGUIS, ESQ.
The Guirguis Law Firm, PLLC
1423 S.E. 16th Place, STE 204
Cape Coral, Florida 33990
Posted on September 19, 2012, in Legal and tagged Attorney, F.S. 83.49, Fort Myers, Landlord, Lawyer, Legal Schmegal, Pre-Claim Requirements, Property Guiding, Security Deposit, SWFL Real Estate, Tenant, The Guirguis Law Firm, Vernon Guirguis. Bookmark the permalink. Leave a comment.