[RPPTL LandTen] Action to recover Residential Security Deposit

Wed Aug 28 12:25:37 PDT 2013

It is a shame we could not clarify this in the last law change.

The law is so unclear.

3(b) states that unless the tenant timely objects to the imposition of the
claim, the landlord may deduct the amount of its claim from the security
deposit.

Does this mean if they do object the landlord may not deduct? It would
appear that way.

This forces the hand into litigation over such a small sum OR the broker
holding the money in the escrow account forever.

FREC does not care if a licensee deducts (they won't put this in writing
though) and the end of 83.49 relieved them of the old time procedures.

I am afraid to tell clients to just go ahead and do it because this could
possibly be construed as civil theft. 

Most of them do go ahead and do it. I have seen no bad ramifications but the
tenant obviously did not call Leonard. :-)

Harry

LAW OFFICES OF 
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, August 28, 2013 3:05 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Action to recover Residential Security Deposit

In my opinion, s. 83.49, Fla. Stat., does not go far enough to guide the
landlord and tenant on what happens after the landlord timely serves a
notice of claim and the tenant timely serves its objection to the claim.
Some argue that the landlord should not have to do anything after making its
claim, regardless of the objection by the tenant.  Rather, it is the
tenant's obligation to bring an action for breach of contract, specific
performance, declaratory judgment, etc., to recover its security deposit.
Others would argue that a landlord cannot self-adjudicate its right to claim
the deposit under the lease.  When s. 83.49(3(a),(b) and (c), Fla. Stat.,
are read together, it seems to suggest that the landlord has to bring an
action to adjudicate its claim.  After all, if the tenant fails to pay rent,
the landlord must enforce its rights through an eviction action to remove
the tenant.  Arguably, if the tenant damages the unit, the landlord must
enforce its right to keep the security deposit through an action for
declaratory judgment or breach of contract.    

Section 83.49 (3)(a)  states the landlord's obligation to return the deposit
or serve a written notice of its intent to impose a claim along with the
statutory language.  Subsection (3(b) states that unless the tenant timely
objects to the imposition of the claim, the landlord may deduct the amount
of its claim from the security deposit, which is also contained in the
statutory notice.  The problem is that the statute does not go far enough to
inform the landlord or tenant what happens after the tenant timely serves
its objection.  Instead, subsection (3)(c) provides for the prevailing
party's right to fees and costs by first referencing the bringing of an
action by either party, to adjudicate the party's right to the security
deposit.  Without looking into the legislative history, section (3)(c) seems
to imply that the landlord must bring an action to adjudicate its right to
the deposit following a timely objection by the tenant. 

Perhaps this is another area where a clarification to the statute is needed.

Regards, 

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F. 561.989.3204                    

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, August 27, 2013 4:19 PM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] Action to recover Residential Security Deposit

At the end of the lease, tenant vacates and leaves the premises in poor
condition. Within the 30 days, landlord provides a detailed notice of
intention to impose a claim. Tenant, through counsel, timely objects to the
claim. The statute does not say how long the parties have to file suit. Can
the Landlord just sit and not return the deposit? 

For how long?

David  Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

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