If the landlord does not follow the statute, the security deposit will have to be returned to the tenant, regardless of unpaid rent or damage to the property. Fla. Stat. 83.49.
Does the statute apply?
This must be a Florida residential tenancy. It applies to all security deposits and advance rent. The statute does not apply to:
(1) Residency or detention in a facility, whether public or private, when residence or detention is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services.
(2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part.
(3) Transient occupancy in a hotel, condominium, motel, roominghouse, or similar public lodging, or transient occupancy in a mobile home park.
(4) Occupancy by a holder of a proprietary lease in a cooperative apartment.
(5) Occupancy by an owner of a condominium unit.
Has the initial notice been given?
If the landlord rents at least five individual dwelling units, the landlord must mail or hand to the tenant within 30 days of receipt of the advance rent or security deposit a certain disclosure: The disclosure must state “the manner in which the landlord is holding the advance rent or security deposit and the rate of interest, if any, which the tenant is to receive and the time of interest payments to the tenant. . . . [and] the name and address of the depository where the advance rent or security deposit is being held, whether [it] is being held in a separate account for the benefit of the tenant or is commingled with other funds of the landlord, and, if commingled, whether such funds are deposited in an interest-bearing account in a Florida banking institution. . . .” The notice is also required to contain a copy of the provisions of subsection (3) from the statute dealing with claims against the deposit (see below for the required language).
If the notice was required but not timely made, the deposit is immediately returnable.
If no notice is timely given, the tenant can force the landlord to return the advance rent or security deposit immediately. This is probably a Small Claims Court case and the clerk of the court will assist in the preparation of the initial filing. The attorney’s fees and the filing fees should be payable to the prevailing party in the lawsuit.
At the end of the tenancy, another notice is required if the landlord has a claim against the security deposit or advance rent.
“Upon the vacating of the premises for termination of the lease . . . the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of [the] 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: 1. 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.”
If the notice is late, no claim can be asserted against the deposit.
If landlord fails to comply with notice provision of this section governing duties of landlord in connection with security deposit, security deposit may not be used for purposes of setoff in lawsuit in which landlord claims damages against former tenant. Durene v. Alcime, 448 So.2d 1208 (Fla. 3d DCA 1984).
So, if the notice was late or not given, suit can be filed against the Landlord for the return of the deposit.
This is probably a Small Claims case and the clerk of the court will give you the needed forms. Attorney’s fees and cost are recoverable by the prevailing party against the other party.
Clifford M. Miller
Florida Bar Board Certified Civil Trial Lawyer
Miller Law Offices
3760 20th Street
Vero Beach FL 32960-2464