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

[Todd Allen]

I generally do not file 57.105 motions, but I can’t imagine there being a better case.
Todd B. Allen, Esq.  |  Attorney
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> On Jul 25, 2016, at 5:16 PM, Leonard Cabral <LensLaw at Lenslaw.com> wrote:
> 
> I agree with Joseph but I wonder if you think the outcome would be different if the landlord could show that at all times during the tenancy the funds in the account where the money was comingled never went below the amount of the security deposit. (assuming that it stayed there until it was proper to remove). 
>  
> Also I was surprised that the definition of theft only requires someone to temporarily deprive the use of their property.  
>  
> Florida Statute §812.0145(1)(c)1 (1), a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property and (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.
>  
> From: landten-bounces at lists.flabarrpptl.org <mailto:landten-bounces at lists.flabarrpptl.org> [mailto: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 <landten at lists.flabarrpptl.org <mailto:landten at lists.flabarrpptl.org>>
> 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
> Fort Lauderdale, FL 33301
> Cell: (413) 687-2093
> Office: (954)256-5125
> Fax: (954) 256-5126
> http://www.joehugheslaw.com <http://www.joehugheslaw.com/>
> 
> The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.
>  
> 
> 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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