Dear FL Tenant: I Intend To Impose A Claim On Your Security Depos

General Landlording & Rental Properties
9yFollow

Dear FL Tenant: I Intend To Impose A Claim On Your Security Depos

John Thedford
Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes

First: security deposits do NOT belong to the landlord. They are exactly as stated: security deposit.
They MUST be housed in a FL financial institution per FL statute. They cannot be co-mingled.
Now, your tenant left "damage". What do you do?
First, print out chapter 83 FL statues FL Landlord-Tenant law. This is your guidebook to keep things legal and on an even playing field for both landlord and tenant.
Second: on move out, do a thorough inspection.
There is a difference between normal wear and tear and damage. Normal wear and tear may NOT be deducted from the deposit.
Once you have established any damage claims, prepare your notice. It MUST be sent within 30 days of move out. If you go past that time frame, you MUST give it all back. This does not stop you from bringing an action later, but is the long route to settling issues.

Does your lease require tenants to replace light bulbs, batteries, etc? If not, maybe you should disregard those and deal with bigger issues
How about holes in the wall for pictures? Does your lease address these?
Cleaning charges mandatory or not? Mandatory makes it easier to claim against the deposit.

Once received by the tenant, they have 15 days to object. If they fail to object timely, take the portion that you can legally deduct and mail the difference back certified mail. Certified mail always help protect YOU.

What IF they object? You CANNOT automatically take THEIR money. You must have a hearing in court to determine who gets what. It IS their money. The courts can give you part or all of it with good documentation and GOOD REASONABLE claims. Never go in to court with ridiculous claims. That makes you look bad and may sway the judge to be more lenient on the former tenant. 

Here is the REQUIRED language in a security deposit claim:
Security Deposit Notice

To: Former tenant

This is a notice of my intention to impose a claim for damages in the amount of $xxx upon your security deposit, due to damages including the following:
1.broken blind in bedroom $200
2. Broken door knob on master bedroom door $30
3. Broken toilet seat had to be replaced 48.74
4. Broken busted out screens on lanai $225.00
This resulted in total charges of $xxx against your security deposit. 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 Mr Wonderful Landlord, 111 Gold Paved Avenue,  Naples, FL

6Reply
87 views

Most Popular Reply

Matthew Olszak
Real Estate Broker · Chicago, IL · Member since 2015 · 1k+ posts · 2k+ votes
9y

@Brooklyn A. So you are saying that every judge, landlord, tenant, and attorney of each has been getting it wrong all of this time, but you understand the correct way to interpret the law and will educate us?

We come here to discuss our experiences as professionals. You on the other hand have done nothing but belch out legal interpretations and techniques equivalent to those found in "How to Beat a Speeding Ticket" ebooks. Come back when you have some hard experience and not just that you 'won' a case because a landlord decided it would be cheaper to pay you to go away then defend his/her position.

2Reply
See this reply in the discussion

35 Replies

Jump to latestLatest
  • Kim Meredith HamptonBusiness Member
    Real Estate Broker · St Petersburg · Member since 2014 · 2k+ posts · 2k+ votes
    9y

    Well put @John Thedford some people really need those explanations!

    [email protected]407-448-6679Podcast Guest on Show The Key to Scoring Discounted Deals in One of America’s Hottest Markets
    Compass | St. Pete514 Reviews
    WebsiteView Page
    1Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y
    Originally posted by @John Thedford:

    What IF they object? You CANNOT automatically take THEIR money. You must have a hearing in court to determine who gets what.

    I pose a relevant question as a FL tenant:

    What action do you take when you do receive a written objection from the tenant within 15 days? (email and text msgs apply since they function as written instruments)

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    If the tenant and landlord cannot come to terms then a hearing must be held to determine how much, if any, of the security deposit may be forfeited to the landlord. 

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    @John Thedford

    I think you know that I know that much. I'm asking you directly: what do you do with the security deposit monies when you are in receipt of the tenant's objection letter? (Let us assume, tenant objects to every claim you make.)

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    I may be in that situation now. If so, I will file an action in court to claim what is owed. I have EVERYTHING documented. To date, I have not had anyone object and most tenants were nice. Some have pointed out their damage expecting it to be deducted.  You can bring the action in small claims court.

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    Another couple of notes regarding security deposits: you MUST give written notice within 30 days of move in where the money is housed. I specifically state the name of the bank and their address. The notice MUST state if the account is interest bearing or not. I prefer non-interest bearing accounts because I don't want the hassle of giving one tenant .42 cents, another .13 cents, etc. I house all security deposits in ONE account which I label "liabilities" because they ARE NOT the landlord's money and are "owed" to the tenant. I have an addendum the tenants sign attached to the lease stating my security deposit actions. If part of it is legally forfeited, I send the tenant a check for the balance due from the liabilities account and move the balance of forfeited funds to an operating account. 

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y
    Originally posted by @John Thedford:

    I may be in that situation now. If so, I will file an action in court to claim what is owed. I have EVERYTHING documented. To date, I have not had anyone object and most tenants were nice. Some have pointed out their damage expecting it to be deducted.  You can bring the action in small claims court.

    I'm not busting you up, I'm only asking what you do with the actual funds when you get the 15 day objection letter. Specifically what is their disposition after you receive the tenant's dispute? (Again, assume the tenant objects to each claim the landlord makes)

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    @Brooklyn A.

    The funds SIT in the account until a resolution is reached. Again, they are NOT the landlord's funds unless/until a resolution is made regarding the dispute. That resolution could be made by an agreement with the tenant or taking it through court to determine ownership. If the courts grant x dollars to the landlord, the landlord MAY take those funds and return the balance. In my current case, the tenant is being notified that their entire deposit is being forfeited AND I have an action for damages and unpaid rent. This case is already in the court's hands. Until a determination is made, I CANNOT touch the funds so they sit in the liabilities account until a resolution is reached. If subpoenaed, I can prove to the courts that the money has NEVER been touched. To me, this is important. Even though I am suing the former tenant, I want the courts to see my actions are proper, legal, and justified. 

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    @Brooklyn A.

    As a side note, ADVANCE RENT must be housed and held as well. A landlord may take what is due each month. If the tenant paid first and last, the last months rent may NOT be taken or used UNTIL the last month. Again, this is a liability. I do not collect advance rents. 

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    @John Thedford 

    Throwing the statute out here for open discussion. I've taken the liberty to italicize where I think it tends to get murky for FL landlords. When you read this, how do you interpret your duties as a landlord if the tenant objects to your entire claim for damages?

    83.49(3)(b) Unless the tenant objects to the imposition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, 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.

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    @Brooklyn A.

    It is perfectly clear. What are you missing? IF they object, it MUST be settled by the courts and until then, held in a segregated account. It doesn't matter if the claim is for $50 or the entire deposit. 

    1Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y
    Originally posted by @John Thedford:

    @Brooklyn A.

    It is perfectly clear. What are you missing? IF they object, it MUST be settled by the courts and until then, held in a segregated account. It doesn't matter if the claim is for $50 or the entire deposit. 

    The segregated account belongs to the landlord, to hold the tenant's security deposit monies in trust. Or in the alternative post a surety bond. In either case, it is an identifiable account.

    How do you proceed if demand is made by the tenant for return of the entire security deposit amount within their 15 day objection letter?

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    @John Thedford

    Adding to my last post; the statute is missing the language necessary for you to assert that it must be held in segregated account until such time as it is adjudicated.

    The statute simply states in 83.49(3)(a) and (3)(b) that both parties are not limited from either party to litigation of actual damages.

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    @Brooklyn A.

    Again? IF THEY FILE AN OBJECTION, continue to hold it in the segregated account until resolved through the courts. You state "the segregated account belongs to the landlord". No it does NOT. It belongs to the tenants until such time as legal action has been taken OR the tenant does not object to the taking of it by the landlord. The landlord is simply the custodian of other peoples money. 

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y
    Originally posted by @John Thedford:

    @Brooklyn A.

    Again? IF THEY FILE AN OBJECTION, continue to hold it in the segregated account until resolved through the courts. You state "the segregated account belongs to the landlord". No it does NOT. It belongs to the tenants until such time as legal action has been taken OR the tenant does not object to the taking of it by the landlord. The landlord is simply the custodian of other peoples money. 

    Delving deeper:

    83.49 Deposit money or advance rent; duty of landlord and tenant.—

    (1) Whenever money is deposited or advanced by a tenant on a rental agreement as security for performance of the rental agreement or as advance rent for other than the next immediate rental period, the landlord or the landlord’s agent shall either:

    (a) Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord; [...]

    (c) Post a surety bond.

    The landlord bears the responsibility of opening and maintaining the funds in the account and therefore exercises dominion over it. This is why the requirement for the landlord to furnish notice to the tenant, providing the banking institution's name/address and disclosure regarding interest bearing or not. It also places the burden upon the LL to provide updates, in writing, to tenant's if the landlord changes the location or manner in which the deposit is held within 30 days pursuant to 83.49(2):

    (2) The landlord shall, in the lease agreement or within 30 days after receipt of advance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit. Subsequent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the tenant within 30 days after the change as provided in paragraphs (a)-(d).

    Now, it is well-established that the LL has an account it exercises dominion over containing the tenant's money. If the tenant makes demand for full refund do you deny the tenant? Are you certain you should continue to hold on to the contested funds in the account you exercise dominion over, knowing of the tenant's claim?

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y

    From your post: Now, it is well-established that the LL has an account it exercises dominion over containing the tenant's money. If the tenant makes demand for full refund do you deny the tenant? Are you certain you should continue to held on to the contested funds in the account you exercise dominion over?

    Since it is NOT the landlords money, taking it may be considered an illegal action. This is why you WAIT until a court says who gets what. By your own post, you note the landlord has "dominion" over somebody else's money. I don't care what the tenant demands, I care about what is LEGAL AND JUSTIFIED. They can tear your place up and demand a refund. Would you give the security deposit back? Don't make this complicated! IT IS NOT YOUR MONEY UNLESS/UNTIL resolved through legal means. If the tenant does not object to the taking, take THEIR money. If they object, DO NOT take THEIR MONEY unless a court says you can. IT IS THEIR MONEY until legal statute has been complied with. 

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y
    Originally posted by @John Thedford:

    Since it is NOT the landlords money, taking it may be considered an illegal action. This is why you WAIT until a court says who gets what. By your own post, you note the landlord has "dominion" over somebody else's money. I don't care what the tenant demands, I care about what is LEGAL AND JUSTIFIED. They can tear your place up and demand a refund. Would you give the security deposit back? Don't make this complicated! IT IS NOT YOUR MONEY UNLESS/UNTIL resolved through legal means. If the tenant does not object to the taking, take THEIR money. If they object, DO NOT take THEIR MONEY unless a court says you can. IT IS THEIR MONEY until legal statute has been complied with. 

     It's not your money to withhold from the tenant until it is adjudicated on the merits. That extends to leaving it in the account until such time it is adjudicated. There's no court-appointed receiver for the funds during the dispute and the language of the statute does not contemplate it (such as the rent due the court clerk during an action for eviction.) 

    The tenant can articulate with good reason before the court you unlawfully withheld the tenant's security deposit monies and prove the elements necessary for conversion/theft. The court would never even approach the topic of your damages since a finding would render moot the landlords objections.

    Properly executing a security deposit claim in FL is a much more exact science fraught with pitfalls for the landlord. It seems you're in the same boat as ALOT of landlords.

    The technicalities exist due to the imbalance in the landlord-tenant relationship. Considering, that the landlord is empowered to hold on to the money in the account they control while the tenant must file suit.

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    @John Thedford

    I see my posts in this thread are without challenge; for good reason. Thieves are bad people who steal from unsuspecting victims.

    No landlord in this state will follow this but it's the reason your tenant's prevail;

    1.) Upon timely receipt of the tenant's objection, the landlord refunds the entire balance, or such amounts in dispute; and

    2.) Avails themselves of the remedy pursuant to 83.49(3)(a), which is to file suit to recover actual damages.

    You have to give it back first (within 30 days of the notice to impose claim against the security deposit), then second file suit to recover your "damages."

    It's for this last reason LL's won't properly follow this. They know their "damages" are subject to the courts' discretion. What you consider damage, often the court does not. It's easier to just steal the money; typical thug strong-arming.

    0Reply
  • John Thedford
    OP
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    9y
    Originally posted by @Brooklyn A.:

    @John Thedford

    I see my posts in this thread are without challenge; for good reason. Thieves are bad people who steal from unsuspecting victims.

    No landlord in this state will follow this but it's the reason your tenant's prevail;

    1.) Upon timely receipt of the tenant's objection, the landlord refunds the entire balance, or such amounts in dispute; and

    2.) Avails themselves of the remedy pursuant to 83.49(3)(a), which is to file suit to recover actual damages.

    You have to give it back first (within 30 days of the notice to impose claim against the security deposit), then second file suit to recover your "damages."

    It's for this last reason LL's won't properly follow this. They know their "damages" are subject to the courts' discretion. What you consider damage, often the court does not. It's easier to just steal the money; typical thug strong-arming.

     Your posts are incorrect. I find your comments about landlords being thugs amusing. I have heard the term slumlord, but this is the first time I have heard the term "thug" for landlords, especially for those following the laws. I am starting to believe you are simply trolling!

    1Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    @John Thedford

    I'm ready for Halloween so let's get scary and show chicken little the sky really is falling:

    "A finding that a conversion occurred is consistent with the view that “the essence of an action for conversion is not the acquisition of property by the wrongdoer, but rather the refusal to surrender the possession of the subject personalty after demand for possession by one entitled thereto.” Murrell v. Trio Towing Serv., Inc., 294 So. 2d 331, 332 (Fla. 3d DCA 1974) (citing 89 C.J.S. Trover and Conversion § 3 (1955); 18 AM.JUR.2D Conversion § 43 (1965)). The demand by the rightful owner gives “the person in possession actual notice of the rights of the person who is legally entitled to possession.” Ernie Passeos, Inc. v. O’Halloran, 855 So. 2d 106, 109 (Fla. 2d DCA 2003)."

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    The basis for a good understanding of avoiding conversion is to understand your responsibilities while entrusted with those funds.  I've provided the basic theory for you to understand via this landmark caselaw. NOTE that the making of demand is a critical element and there are additional considerations of the contract nature.

    A finding that a conversion occurred is consistent with the view that “the essence of an action for conversion is not the acquisition of property by the wrongdoer, but rather the refusal to surrender the possession of the subject personalty after demand for possession by one entitled thereto.” Murrell v. Trio Towing Serv., Inc., 294 So. 2d 331, 332 (Fla. 3d DCA 1974) (citing 89 C.J.S. Trover and Conversion § 3 (1955); 18 AM.JUR.2D Conversion § 43 (1965)). The demand by the rightful owner gives “the person in possession actual notice of the rights of the person who is legally entitled to possession.” Ernie Passeos, Inc. v. O’Halloran, 855 So. 2d 106, 109 (Fla. 2d DCA 2003)."

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y

    Despite what is posted by any member of this board: Civil Theft Claims in Security Deposit Disputes

    Defendant’s admission of, [...]its stated knowledge of the requirements of the statute pertaining to the keeping and disbursement of the deposits, its subsequent failure to follow the notice provisions of the statute and its failure to respond to Plaintiffs’ written and properly served demand for treble damages in accordance with Fla. Stat. section 772.11, sufficiently [sic] the requisite elements establishing civil theft pursuant to Fla. Stat. 812.014 as claimed.

    Who's your buddy?

    0Reply
  • Justin Fox
    Software Developer · Vidor, TX · Member since 2015 · 922 posts · 639 votes
    9y

    That's pretty standard stuff, even in Texas.  You must send the full deposit back with in 30 days or partial deposit with written description/itemization of deductions (some exceptions if no forwarding address received or rent is due).  If the tenant sues and the LL is found to be in bad faith (conversion/theft) then the LL is liable to 3x amount withheld and reasonable attorney fees in damages.  The burden of proof is on the LL for reasonableness of deductions/charges as well.

    I constantly hear about LLs in Texas that simply take the deposit with no written itemization justifying the deductions.  If only tenants knew that the LL simply not sending the itemization guaranteed they'd be awarded $100, 3x the deposit AND their attorney fees lol.

    0Reply
  • Brooklyn A.
    Eustis, FL · Member since 2017 · 96 posts · 6 votes
    9y
    Originally posted by @Justin Fox:

    That's pretty standard stuff, even in Texas.  You must send the full deposit back with in 30 days or partial deposit with written description/itemization of deductions (some exceptions if no forwarding address received or rent is due).  If the tenant sues and the LL is found to be in bad faith (conversion/theft) then the LL is liable to 3x amount withheld and reasonable attorney fees in damages.  The burden of proof is on the LL for reasonableness of deductions/charges as well.

    I constantly hear about LLs in Texas that simply take the deposit with no written itemization justifying the deductions.  If only tenants knew that the LL simply not sending the itemization guaranteed they'd be awarded $100, 3x the deposit AND their attorney fees lol.

     I've prevailed twice on conversion and use my own caselaw precedent.  John Thedford is not alone among Florida LLs who misinterpret the plain language of the statute. I think its a common sentiment among LLs when John posted that, "[paraphrasing here] they could tear the place up and demand a full refund" 

    However, he seems to speak out of 2 sides of his mouth. He admits to the knowledge and demonstrates his understanding the security deposit is the tenant's money. He even admits to the knowledge that he must make a lawful claim upon it in accordance with the Fla Statutes claim procedure. He asserts that even when the tenant makes a timely objection in 15 days and a subsequent demand for trebled amount of refund pursuant to 772.11 Fla Statutes, he is entitled to hold onto the funds, indefinitely, (in the account he is required to maintain it in.) This fails in several aspects and is sufficient for the elements necessary to prove conversion.

    The situation was just as Thedford presents this board. Having disputed the LLs claim for damages in its entirety, I used this one in my memorandum of law to the court: 

    Gordon v. Omni Equities, Inc., 605 So. 2d 538, 541 (Fla. 1st DCA 1992) (holding felonious intent was sufficiently alleged by showing defendant made willful false representations with the intent to deprive plaintiffs of their property, that defendant had no legal right to the property, and that these actions were done in violation of Florida Statutes.)

    The essence of making a good claim is to make it multi-layered, like an onion. Upon showing of the objection letter, the tenant asserts the fact the landlord had no legal right to the property, provided willful false representations (use the LLs work receipts as evidence), had control/"exercised dominion" over the account containing the tenant's property, and willfully denied return of the security deposit (property) belonging to the tenant after demand was made for its return. It's a smoking gun when the LL admits they withheld the tenant's money;

    1.) knowing of both the tenant's written objection; and

    2.)  the tenant's demand for the return of the property.

    This will happen every time. I guarantee the landlord will do just as the OP admitted. Even when the tenant timely objects in 15 days, they will hold onto the funds, indefinitely, and LLs are NEVER the first to file the claim in court. No way, that requires them to be the first party to advance the lawyer's fees and filing costs. Leaves the court looking at the Defendant's lawyer and asking, "so were you just going to hold onto it indefinitely, until the tenant files suit?"

    Under these circumstances the tenant should always sue for theft/conversion.

    0Reply
  • Justin Fox
    Software Developer · Vidor, TX · Member since 2015 · 922 posts · 639 votes
    9y

    What if the LL immediately filed suit against the tenant for claimed amount?  They wouldn't have to return the full deposit at that point, right?  It even says in section 2, sub-section d that you should try to informally resolve the issue before filing suit.  Makes me think that as long as the LL follows up with the tenant's objection and subsequently files suit (I would suggest before the remaining 15 days are up) if the tenant doesn't concede, that the LL would be fine.

    0Reply
Join the conversationCreate a free account to reply, vote on answers and follow this thread.
Log InJoin for Free