Will a Tenant get their security deposit?

jmwbarpic2b3By: J. Mason Williams IV

I have been asked several times whether a person can get their security deposit back.  Often times, they tell me that they cleaned everything up and the landlord still won’t give them their deposit back.  Why not and what can I do?   Well, first you have to review your lease or rental agreement.  You almost always want to start there with any landlord/tenant issue.  If the agreement is silent, then you want to review any applicable Florida Statutes.  It just so happens that Section 83.49, Florida Statutes (Deposit money or advance rent; duty of landlord and tenant) deals with security deposits for residential tenancies.

So what does Section 83.49 tell us?  First, it requires certain actions on the part of the landlord when you initially give them the security deposit.  If the landlord failed to follow these requirements, you may be in luck and the landlord may have a problem keeping the deposit, but this is nowhere near a guarantee since even if the landlord does not follow these requirements, you probably have not been damaged much, if at all.

The landlord and tenant also have additional requirements that occur at the end of the tenancy.  After vacating the premises for termination of the lease, Section 83.49 further requires the landlord to return the security deposit within 15 days if the landlord does not intend to impose a claim on it.  If the landlord decides to make a claim, he or she has 30 days to give the tenant written notice by certified mail of his or her intention to impose a claim on the deposit.  The landlord also has to give the reasons for imposing the claim.  In other words, they cannot just say, we are keeping your security deposit.  The standard language for this letter is found in Section 83.49(3)(a).  If the landlord fails to follow these requirements, specifically the 30 day requirement, the landlord forfeits his or her claim to the security deposit.

If you fail to object within 15 days of receiving the landlord’s notice, you will likely have waived any opportunity to claim the security deposit despite the fact that the landlord may not have followed the agreement or statutory requirements properly.  If you do not object, then the landlord can deduct the amount of the claim and remit the balance of the deposit to the tenant within 30 days after the date of the landlord’s notice.

If either party institutes an action, i.e., decides to litigate and files a complaint, to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus reasonable attorney’s fees.  Additionally, a landlord that is licensed may be at risk to fines or suspension or revocation of his or her license for not complying with these requirements.

There are a few exceptions, to these rules and one is in the case of a tenant vacating or abandoning the premises prior to the expiration of the term specified in the written lease or rental agreement.  Section 83.49 requires the tenant in this scenario to give 7 days notice prior to vacating or abandoning the premises.  Failing to do so will waive the landlord’s notice requirements mentioned above, but it will not waive any rights a tenant may still have to the security deposit.

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