[RPPTL LandTen] Action to recover Residential Security Deposit

[James Zink]

I think this is basically correct. I can tell you in my practice, the common practice for a landlord is to keep the money unless sued. I think the statute is left intentionally vague because, depending on the case, one side may be presenting a completely bogus basis to either get the money returned or to keep the money. By simply referring to the attorney fees, the statute attempts to reach its desired result through implication of penalty: if you do not have a serious basis to either keep the deposit or to demand its return, you may want to reconsider holding it or pursuing it lest you may end up owing significantly more than the deposit amount. Yes, it would be easier if the statute said that the undisputed money must be returned and the disputed money must be sued for, but I think the way it is written is meant to encourage settlement rather than encourage litigation through statutory process. It appears this is the line of thinking given the new disclosures necessary under the amended law as it specifically requires that language be put in encouraging settlement without litigation. 

So, in answer to the question, the landlord is not required by statute, as far as I can tell, to return the deposit, but should weigh the chances of success or failure in court against the benefit of the deposit amount itself. 

Best, 

James Zink, Esq. 

________________________________________
From: landten-bounces at lists.flabarrpptl.org [landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky [ahorky at horkylaw.com]
Sent: Wednesday, August 28, 2013 3:04 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,


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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

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


This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky at horkylaw.com<mailto:ahorky at horkylaw.com>.
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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
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

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