[RPPTL LandTen] Such a basic question . . .

[Greg Hass]

Thanks Eric,

Do you happen to have any statutory or case law authority to support your comment that "the penalty for violating 83.49(1) is that the Landlord loses the ability to make a claim against the deposit completely"?  I value your opinion but I'm not aware of anything in Florida that's directly on point - however, I haven't done any exhaustive research on this either - perhaps there are some trial court cases floating around on the subject?

For what it's worth, this morning I remembered we have Hauser's Florida Residential LL/T Manual in our library and I found the following statement on this subject in Section 7.03[6] of same:  "What if the landlord impermissibly commingles the security deposit pursuant to Fla. Stat. Sec. 83.49(a) or (b)?  No Florida court has yet ruled on this issue."

Regards,
Greg

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Wednesday, June 15, 2011 7:31 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Such a basic question . . .

Respectfully, I have to disagree with Greg.  The penalty for violating for 83.49(1) is that the Landlord loses the ability to make a claim against the deposit completely. This does not mean that the Landlord waives any claim to damages arising out of the tenancy, only that the Landlord can retain or collect the deposit for such damage and must instead file an action.  Further, the Landlord is then exposed for failing to return the deposit timely.

As for the notice, it is intended to keep the landlord honest and force the Landlord to comply with the section at the outset.  I would agree that the formulation is a bit ridiculous since the whole issue could be resolved very quickly by requiring the Landlord to segregate or allowing the lease to be terminable or some other formulation.   I have thought that it would be logical to allow the Tenant to provide the Landlord notice of non compliance with the section and a brief opportunity to cure, failing which the Tenant could terminate the Lease at will.


From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, June 15, 2011 5:46 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .

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.
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Attorney at Law
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