[RPPTL LandTen] Such a basic question . . .

[Law Offices of Scott A. Frank]

Thank you all for your advice.  I have been leaning towards the "if there's
no remedy, there's no remedy" side, but this helped me to clarify.

 

Fortunately, there's plenty of other bad things the landlord id with respect
to trying to grab the deposit.

 

Please note our new address.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p:  (561) 372-7860

f:  (561) 423-5721 

sfrank at saflaw.com

www.saflaw.com <http://www.saflaw.com/> 

 

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
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Pursuant to Internal Revenue Service guidance, be advised that any federal
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other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

 

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Alberto M Cardet
Sent: Thursday, June 16, 2011 2:05 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Such a basic question . . .

 

Gentlemen:

 

When I saw the question it seemed vaguely familiar.  I had the issue come up
in a security deposit dispute a few years ago, where the landlord testified
that he never deposited the money but rather kept  it in a drawer at home.
I am cutting and pasting the part of my memo to the judge that dealt with
that issue.  Ultimately, it was a non-issue for the judge but the tenant
made a big deal about it.

 

"At this juncture the location of the deposit money, whether a drawer or
Florida Bank, seems premature and irrelevant as entitlement to said deposit
money remains at issue.  Further, Chapter 83 Florida Statutes does not
contain a remedy for the tenant nor a penalty for the landlord, when a
landlord fails to abide by the deposit requirements.  See Pekofsky v Golden,
1 Fla. L. Weekly Supp. 478a (Fla. 11th Cir. Ct.1992) wherein the Eleventh
Judicial Circuit in its appellate capacity found no remedy provided in
section 83.49 for the landlord's failure to comply with the deposit
requirements."

 

I can't find my copy of the Pekofsky case I cited, but I'm working on it.

 

Albert

 

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Thursday, June 16, 2011 11:36 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .

 

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

 

Office of Law & Policy | FloridaRealtorsR
7025 Augusta National Drive, Orlando, FL 32822
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cid:image001.jpg at 01C8B0EE.0B556530

 

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.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

p:  (561) 372-7860

f:  (561) 423-5721 

sfrank at saflaw.com

www.saflaw.com <http://www.saflaw.com/> 

 

If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

 

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