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

Mon Jul 25 14:38:22 PDT 2016

Q: Do you have a cite for the 2d DCA case that says that comingling does not result in a forfeiture of the deposit?

Joseph P. George, Jr., Esq.

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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.
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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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