[RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Mon Jul 25 14:08:01 PDT 2016

I have to agree, I do not see any of those claims surviving a Motion to
Dismiss, and to top it off the tenant would be liable for attorney's fees.

*Sebastian Jaramillo, Esq.*

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On Mon, Jul 25, 2016 at 5:01 PM, Harry Heist <harry at evict.com> wrote:

> What damages did the person suffer if 100% of the deposit was returned
> prior to any  lawsuit?
>
>
>
> Harry
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> *From:* landten-bounces at lists.flabarrpptl.org [mailto:
> landten-bounces at lists.flabarrpptl.org] *On Behalf Of *Joseph S. Hughes,
> Esq.
> *Sent:* Monday, July 25, 2016 4:28 PM
> *To:* RPPTL Landlord Tenant Committee
> *Subject:* Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?
>
>
>
> Yes.
>
> First, when combined with evidence of bad faith, commingling may serve as
> a basis for civil theft, breach of fiduciary duty, and conversion,
> permitting treble damages under civil theft in both small claims and
> county, and punitive damages under breach of fiduciary duty and conversion
> in county court. In county court, the fees will typically be higher than
> small claims.
>
> Second, although difficult to prevail on, these additional claims may also
> entitle the tenant to a jury trial as independent tort actions where the
> lease nonetheless contains a jury trial waiver. This provides the tenant
> with additional leverage. If the landlord is particularly unlikeable or the
> emotional elements favor the tenant, this could be devastating to the
> landlord if the right jury is selected and could result in much higher
> damages (not to mention attorney's fees and costs).
>
> Third, I only know of one 2nd DCA case that says that commingling does not
> result in a forfeiture of the deposit. This could easily be disagreed with
> by other DCAs, and since a security deposit is considered "property", I
> would still make the argument that if the landlord cannot reasonably abide
> by the notice requirements when s/he has effectively converted the funds,
> thereby making the deposit unidentifiable for notice purposes, the notice
> would be defective. After all, how can a landlord make a claim on a deposit
> that technically no longer exists due to the commingling? Notice that a
> "deposit" is distinguished from "damages" for I believe this very reason,
> among others (including to avoid offers of judgment.)
>
> Just my two cents.
>
> ---
>
> Joseph S. Hughes, Esq.
> The Law Office of Joseph Hughes P.A.
> 515 E. Las Olas Blvd. Ste 120
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> On 2016-07-25 15:31, Alberto Cardet wrote:
>
> Section 83.49(1) requires a landlord to hold a tenant's security deposit
> in separate account and not commingle said funds with any other funds.
>
>
>
> Tenant vacates and landlord returns 100% of security deposit.  Tenant now
> sues alleging that "upon information and belief" the landlord violated
> 83.49(1) because landlord commingled funds.  Alleges that as a result
> tenant has suffered damages and in addition demands attorney fees and costs.
>
>
>
> I have heard at local seminars that 83.49(1) does not contain any teeth,
> in the context that failure to abide by 83.49(1) by itself does not provide
> any remedy to the tenant or waive the landlord's right to make a claim on
> the deposit, which the landlord did not make in my case.
>
>
>
> Even if a violation of 83.49(1) exists, is anyone aware of any damages
> that may be claimed by a tenant?
>
>
>
> Thank you
>
>
>
> Albert
>
>
>
>
>
> Cardet Law, P.A.
>
> 1330 Coral Way #301
>
> Miami FL 33145
>
> 305-403-7783
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>
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