[RPPTL LandTen] Such a basic question . . .

[Greg Hass]

It's actually a good question Scott - I've previously pondered it myself.

AFAIK, there's no specific penalty for violating 83.49 (1).  However, LL would be at risk of civil claims by T to enforce LL's compliance (83.54), claims by T for whatever damages supposedly suffered by T as a result of LL's noncompliance (83.55), and the resulting atty fees for same (83.48).   I would note that even though the LL's lease may purport to say that LL can/will commingle, I would argue that's a "prohibited provision" pursuant to 83.47.  Also, the fact that LL leases fewer than 5 units only relieves LL of having to comply with the notice provision of 83.49 (2), I don't believe it relieves the LL of having to comply with 83.49 (1).

One thing I've never understood is why 83.49 (1) prohibits comingling, yet the notice contemplated by 83.49 (2) invites the LL to notify T of whether or not LL has comingled the funds - seemingly condoning that behavior right after prohibiting it - I must be missing something.

But to answer your question about using comingling as a defense by T, no, I don't think the fact that the LL wrongfully comingled funds serves as an absolute bar to a valid claim by LL on the security deposit at the termination of the lease.  I suppose T could raise the issue but it seems like a loser to me if the LL's claims are otherwise meritorious.  Note that the last sentence of 83.49 (3)(a) imposes the rather draconian penalty of forfeiture of right of LL to impose claim on deposit for failing to give the required 30 day notice under that subsection, but there is no such similar penalty spelled out in the statute for mere comingling.

Regards,
Greg

Greg Hass, Senior Counsel

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Wednesday, June 15, 2011 5:15 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Such a basic question . . .

that I am almost embarrassed to ask it.

But since I have no shame, I will.

What are the remedies, if any, if a residential landlord failed to maintain a security deposit in a separate account?  Landlord notified tenant in the actual lease that the deposit will be commingled.  Lease expires, and Landlord is submitting a claim on the deposit.

Does the fact that the funds were commingled serve as any kind of defense for the tenant?  Is there any penalty on the landlord (who leases less than 5 units)?

Thanks for your indulgence.

Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
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Boca Raton, FL 33487
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f:  (561) 423-5721
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