[RPPTL LandTen] Residential Security Deposit

Wed May 25 17:06:17 PDT 2011

No, Harry, all co-tenants are jointly and severally liable for the rent.
This is contractual and has nothing to do with their ownership of the
security deposit as among themselves.

If you and I own a car together, there is a legal presumption, rebuttable
only by clear and convincing evidence to the contrary, that we own it as
tenants in common.  As such, you would be entitled to half the proceeds upon
its sale.  Upon my death. my one half passes to my heirs or legatees, not to
you.   However, you and I are, as a matter of law, jointly and severally
liable for the full damages due to negligence resulting in injury, death and
property damage to third parties, regardless of who is driving our car.  

Remember, a "joint tenancy" refers to a joint tenancy with right of
survivorship.  Its significance only comes into play upon the death of a
co-tenant, passing the decedent's share to the surviving co-tenant.  During
the life of a joint tenancy, any co-tenant can terminate the joint tenancy
by destroying one of the four unities, causing the joint tenancy to revert
to a tenancy in common, even against the will of the other co-tenants.

Warren P. Gammill, Esq.

Warren Gammill & Associates

Suite 1050, Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: (305) 579-0000

Telecopier: (305) 371-6927

Gammill at MiamiLawOffice.com

www.GammillLaw.com

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of harry at evict.com
Sent: Wednesday, May 25, 2011 7:27 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: 'Madelin D'Arce'
Subject: Re: [RPPTL LandTen] Residential Security Deposit

Hi Warren,

Does this mean that tenants each only owe half the rent?  I feel that we are
talking about one "tenancy" therefore everything is joint. I am not sure how
you can have it one way with the obligation  to the owner then another way
with the obligation to the tenant.

Harry

LAW OFFICES OF 
HEIST, WEISSE, DAVIS & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com <http://www.evict.com/>  
Email: harry at evict.com

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Warren P.
Gammill
Sent: Wednesday, May 25, 2011 6:51 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: 'Madelin D'Arce'
Subject: Re: [RPPTL LandTen] Residential Security Deposit

Harry, this does not mean that every deposit needs to be split.  Albert's
issue is an unusual one, a former couple arguing over ownership of a deposit
that one paid but where both are tenants on the lease and are legally
presumed co-owners.  

"Joint and several" pertains strictly to liability.  There is no such thing
as owning anything "jointly and severally".  It is an inherent contradiction
in terms.  You cannot distribute something "jointly and severally".  You can
distribute the deposit jointly, $1,200 to "A and B".  "Severally" means the
full liability is on each party; you cannot distribute the full deposit to
each party "severally".

Remember the legal presumption of a gift of one half to B when A contributes
the whole fund and the fund is held in both names.  O'Donnell v. Marks, 823
So.2d 197 (Fla. 4th DCA 2002) (taking title as tenants in common is an
indication of an intention to make a beneficial gift of an undivided
interest to the other party); Mercurio v. Urban, 552 So.2d 236 (Fla. 4th DCA
1989) (stocks owned as tenants in common entitles co-owner to presumption of
gift).  “In absence of evidence to the contrary, co-tenants are presumed to
owe [sic] equal undivided interests”. Levy v. Docktor, 185 B.R. 378, 381
(S.D.Fla. 1995). “[U]pon the death of a cotenant, the deceased cotenant's
interest in the property subject to the tenancy in common passes to his or
her heirs, and not to the surviving cotenant.” 12 Fla. Jur.2d Cotenancy and
Partition § 4 (1998).  See, e.g., Reinhardt v. Diedricks, 439 So.2d 936, 937
(Fla. 3d DCA 1983).  Taking title to property in joint names creates a
presumption of a gift of one half which may be rebutted. Sullivan v. Am.
Tel. & Tel. Co., 230 So.2d 18, 20 (Fla. 4th DCA 1969). Julia v. Russo,  984
So.2d 1283, 1285 -1286 (Fla. 4 DCA 2008) ("We therefore find it necessary to
reverse and remand for the trial court to determine if there was clear and
convincing evidence presented which rebutted the presumption of a gift").

The landlord should be entitled to rely on the legal presumption of a
tenancy in common in making distribution.  Let them quibble or sort things
out between themselves afterwards.  The only totally safe step is to
interplead the money, which makes little sense over a small deposit.

Warren P. Gammill, Esq.

Warren Gammill & Associates

Suite 1050, Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: (305) 579-0000

Telecopier: (305) 371-6927

Gammill at MiamiLawOffice.com

www.GammillLaw.com

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of harry at evict.com
Sent: Wednesday, May 25, 2011 5:39 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: 'Madelin D'Arce'
Subject: Re: [RPPTL LandTen] Residential Security Deposit

This would mean that every deposit return would need to be split. 

I don’t agree with this. The tenants had joint and several liability under
the lease and absent any agreement to the contrary, they get  a refund
jointly and severally.

Harry

LAW OFFICES OF 
HEIST, WEISSE, DAVIS & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com <http://www.evict.com/>  
Email: harry at evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR
DISTRIBUTION IS STRICTLY PROHIBITED.

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Warren P.
Gammill
Sent: Wednesday, May 25, 2011 5:33 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: 'Madelin D'Arce'
Subject: Re: [RPPTL LandTen] Residentiall Security Desposit

Albert, the security deposit is owned by the tenants in a tenancy in common.
There are no other choices when the lease is silent as to any other
ownership or form of ownership.  It must be distributed to them 50/50, $600
to each.  

I would analogize to Demorizi v. Demorizi  851 So.2d 243, 245 (Fla. 3d DCA
2003) ("Because the tax deposit, or the credit therefore, was an item of
personal property omitted from the property settlement agreement and from
the final judgment, the husband and wife became tenants in common in the
property, by operation of law, upon entry of the final judgment. Powell v.
Metz, 55 So.2d 915 (Fla.1952); Cleary v. Hough, 567 So.2d 1039, 1040 (Fla.
2d DCA 1990);. Pemelman v. Pemelman, 186 So.2d 552 (Fla. 2d DCA 1966);
Wilkerson v. Wilkerson, 179 So.2d 592 (Fla. 2d DCA 1965").

Warren P. Gammill, Esq.

Warren Gammill & Associates

Suite 1050, Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: (305) 579-0000

Telecopier: (305) 371-6927

Gammill at MiamiLawOffice.com

www.GammillLaw.com

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Alberto M Cardet
Sent: Wednesday, May 25, 2011 3:41 PM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] Residentiall Security Desposit

Landlord has residential lease agreement with two tenants.  Tenants are
boyfriend and girlfriend.  Lease has terminated and so has the boyfriend /
girlfriend relationship.  Both tenants have sent separate letters to
landlord providing new addresses for each and requesting return of the
security deposit to each individually.  Both tenants claim the full security
deposit belongs to each one individually.  The deposit was initially paid
from the girlfriend’s checking account  and the rent was paid from the
boyfriend’s account.  Each claims their monies were comingled during the
tenancy.

Aside from interpleading a relatively small amount of money $1,200.00, and
wanting to avoid a small claims case for the return of the deposit.  How do
you all feel making the check for the full security deposit payable to both
and mailing it to one of them and a copy of the check to the other and let
the former tenants sort it out?

Suggestions?

Alberto M. Cardet, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

305-403-7824

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