[RPPTL LandTen] 83.49 issue

Fri Apr 10 16:08:55 PDT 2015

Here is a penny for my thoughts.

1.       In your example, there are too many variables.  Does the lease state that the tenancy continues as a month to month?  Then the notice would be required after the last tenant vacates. (my opinion only).  If the tenant gave notice that he/she was vacating at end of the term of the lease then a new month to month lease would have been established with the remaining tenant. In this situation I haven’t a clue what a judge would do and I don’t know what I would do because I would turn down the case as it is too messy.   In my opinion the best option would be for the landlord to file an interpleader.  It is not likely the landlord will get sued by either of the two tenants because the filing fee is usually more than the tenants can afford  to pay up front.

2.       I take a strong stance that the landlord must hold the deposit until a suit is filed by either party for the court to resolve the dispute.  I have even diagramed the sentence structure on the statute to prove that is what the statute states.  It will depends on who wants the money more on who files.

3.       In most cases (except apartment complexes with established management companies) the security deposit never make it to a bank or is long gone before the tenant moves out.  When the tenant disputes the claim against the security deposit the landlord just states “I don’t agree with your dispute” and confiscates the security deposit (until he/she is sued).

An example: Tenant rent a dwelling and give a $1k security deposit to Landlord. During the tenancy the Landlord sells rental property. New landlord demands a $1k security deposit from the same tenant. Tenant seek my assistance.  I sue landlord and new landlord.  Court orders that $1k be placed in a Florida banking institution as the tenant’s security deposit within 10 days.  $1k was deposited in a bank by New landlord.  Three years later the same client/tenant comes to me because her landlord would not return her security deposit.  I sued and in discovery I find that the $1k ordered by the court was withdrawn by the new landlord 3 months after the court’s order. (the tenant’s security deposit was gone in 90 days and account closed).  This is not an isolated case. Typically I find through discovery that either the money was never put in an account or the money was spent during the tenancy.  In my last security deposit case the landlord admitted that the deposit was place in her safe during the tenancy.   This happen with mostly with  mom and pop landlords, slumlords and some property managers who couldn’t spell property manger 6 months ago and now “I are one”.

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

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Friday, April 10, 2015 6:03 PM
To: 'RPPTL Landlord Tenant Committee'; 'Cary Sabol'
Subject: Re: [RPPTL LandTen] 83.49 issue

This dove-tails into a question I asked back in February, but did not get any response from my listserve shout-out:

Landlord and 2 Tenants enter into a standard 12 month Lease with 1 security deposit. At the end of the 12 months 1 tenant moves out but the other stays on in a month-to-month tenancy…3 months later, the 2nd tenant under the lease moves out…Landlord send notice to both tenants of intent to impose claim after the 2nd tenant moves out…..

1.       Since there is only 1 security deposit pursuant to the Lease, does the Landlord’s obligation to provide notice of intent to impose a claim delayed until the latter of all tenants under the original lease move;

2.       If Tenants (both) file objection to the Notice (the 1st on the basis of untimeliness, the 2nd based on objecting to the damage claim), who is responsible for the institution of a suit to resolve? Must a Landlord file the suit or can he wait for the tenant(s) to file…..and for how long does he have to hold the money if LL is not obligated to file suit.

Seems like an everyday occurrence, but thought I’d confirm the consensus of the group.

Les H. Stevens, Esquire
Les H. Stevens, 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 Leonard Cabral
Sent: Friday, April 10, 2015 5:57 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely.  In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter  (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”.   MY 3 cents.  Anyone want to up it to 4?
Can I ask who is the lawyer?

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

From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, April 10, 2015 4:44 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

I believe it has to be mailed within the 30 days.  Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement.  I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party.  My 2 cents.

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
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From: Harry Heist <harry at evict.com<mailto:harry at evict.com>>
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Sent: Friday, April 10, 2015 4:17 PM
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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