[RPPTL LandTen] 83.49 issue

Fri Apr 10 14:59:02 PDT 2015

Good luck with Dragon.  I finally gave up.

Leonard P. Cabral, Esq.
Leonardcabral at lenslaw.com
Please disregard inadvertent misspellings and the use of abbreviations.

-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Friday, April 10, 2015 4:33 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] 83.49 issue

Doesn't even matter if tenant never receives the notice, especially if he avoids it. Only requires that landlord mail it.

The statute does not say that the tenant has to receive the notice. I don't see any way to construe the word. Give me anything other than to send. Tenants can be very good at avoiding receipt, but that does not defeat what otherwise would be compliance by the landlord.

See, for example, Woodworth versus Smith, 773 S. second 1170, as well as OTEMAN  at 757 S. second, 1261 and L & F partners at 561 S. second, 1227. Generally, they stand for the proposition that words such as "evidenced by return receipt" are not intended to require a signed receipt, but only to define the type of service, which must be used under a statute. They also stand for the proposition that the failure of the landlord to comply with the statutory requirements may be excused when the record shows that the party to be served is deliberately refusing to accept delivery.

Sorry about the weird typing, but I'm using Dragon and it's not done training me.

-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Friday, April 10, 2015 4:18 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

3) The landlord or the landlord's agent may disburse  advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits:   (a)  Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form: 

This is a notice of my intention to impose a claim for damages in the amount of _____ upon your security deposit, due to _____. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to  (landlord's address) . 

If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.   

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