[RPPTL LandTen] Action to recover Residential Security Deposit

Mon Sep 2 01:25:12 PDT 2013

Group:
Harry baited me so here I go:
The following was in the HB 77 this year but was taken out. So it was clarified and one of the legislators (in his infinite wisdom) took it out in committee. (if you want to know who I can look it up).

IF YOU TIMELY OBJECT, THE LANDLORD MUST HOLD THE DEPOSIT AND EITHER YOU OR THE LANDLORD WILL HAVE TO FILE A LAWSUIT SO THAT THE COURT CAN RESOLVE THE DISPUTE.

Btw, my last highly contested security deposit dispute netted me over $14k in fees (which included a 2.0 multiplier). So if the landlord think he should not have to do anything after the tenant objects remind them the security deposit is the property of the tenant until the tenant vacates and if the tenant object to the claim on the security deposit the landlord has no right to remove the money until it is settled or until a judge decides who is the rightful owner of the security deposit (either party may bring a suit).  The landlords who don't do anything after making its claim, regardless of the objection is depriving the tenant of due process.  The problem is the landlord has the upper hand because the tenant usually does not have the money to file the claim and cannot find an attorney unless he can find one that will take the tenant's case on a contingent basis and then a multiplier should be awarded to that attorney.

Leonard P. Cabral, Esq.
Leonardcabral at lenslaw.com

HARRY: I am not sure this will make the list. I have been having some problems posting so.  Please repost this if it does not make it to the list..

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Heist, Weisse & Wolk
Sent: Wednesday, August 28, 2013 3:26 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Action to recover Residential Security Deposit

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

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From: landten-bounces at lists.flabarrpptl.org<mailto: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,

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Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
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From: landten-bounces at lists.flabarrpptl.org<mailto: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<mailto: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
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