The security deposit is perhaps the most disputed issue in the realm of landlord-tenant law. The following is an overview of the procedure for tenants in Florida to recover their hard-earned money.
To keep any portion of the security deposit, your landlord must send you certified mail within 30 days from the date you vacated the premises for termination of the lease, notifying you of his or her intent to retain a portion or all of the deposit. If you do not object to your landlord's claim within 15 days after receiving the notice, your landlord is permitted to deduct the amount claimed in the notice from the deposit. However, your failure to timely object does not waive your right to sue your landlord for the balance owed on your deposit. Oftentimes a landlord will send a check to the tenant for a refund of a portion of the security deposit, and will put in the memo line something similar to "full refund of deposit". As tempting as it may be, you should think twice before depositing this check, as it may result in forfeiting your right to legal action against your landlord.
One defense a landlord may make is that you failed to return all keys to the property, thereby "constructively" failing to vacate the premises. Your landlord may also raise the defense that you failed to provide him or her with a written forwarding address, which may be a valid argument depending on the circumstances. If your landlord does not know your new address, he or she is still obligated to send the notice to your last known mailing address, which in most cases would be the leased property you just moved out of. If you timely notified the United States Post Office of your new residence, then you should have received the new notice. If not, then your landlord probably failed to comply with the mailing requirements. Because of the possible defenses your landlord may raise, it is a good idea to get a signed receipt from your landlord or landlord's agent acknowledging the return of all keys to the property, as well as your written forwarding address.
Your landlord's notice is required to be sent to you via certified mail. The notice must cite Section 83.49(3)(a), Florida Statutes (2015), the claims and reasons for the claims being asserted, state that you have fifteen days you have to object to the claim or else your landlord is authorized to deduct the claimed amount, and provide the address to which you must send the objection. If your landlord fails to provide you with a notice that complies with Section 83.49(3)(a), the notice is "defective", and your landlord waives his or her right to keep any portion of your deposit. This does not, however, prevent your landlord from later suing you for damage to the leased property. You are not required to respond to a defective notice, although it is generally a good idea to object anyway if you dispute the claims and are unsure whether the notice complies with the statute.
Your landlord's deductions must be reasonable. Your landlord may make deductions for missing rent payments and for damages beyond ordinary wear and tear, which is "deterioration or depreciation in value by ordinary and reasonable use of the subject-matter." Black's Law Dictionary 1593 (6th ed. 1990). Examples of non-deductible wear and tear include: paint retouching, minor cleaning, small tack holes, and nicks and scratches. Examples of deductible damages include large or excessive holes in the wall, pet urine stains, and broken doors and windows.
If your landlord does not return your security deposit after receiving your objections, or if your landlord is evasive or otherwise expresses his or her intent to retain the disputed portion of the deposit, it is time to send your landlord a demand letter. It is better to have a landlord-tenant attorney do this for several reasons. First, an attorney will have a better understanding of the local rules, laws, cases, and courtroom procedures, and will likely be able to find ways to maximize the tenant's recovery and minimize his or her risks. Second, a landlord is far more likely to respond to a demand letter sent from a law firm, as it shows that you are serious and your claim is meritorious. Third, not only will some law firms will take the case on contingency (meaning that they don't get paid unless you get paid), but if you file a lawsuit and recover even a fraction of your security deposit, then generally your landlord is liable for all of your attorney's fees - which means your service ends up being entirely free!
Beyond the balance owed to you for your security deposit, depending on your circumstances you may also be entitled to additional damages. These additional damages may include recovery for Florida Consumer Collection Practices Act violations of up to $1,000.00 per violation, damages for civil theft, for which the tenant may recover up to three times the original deposit amount owed, accrued interest, court costs and attorneys' fees, consequential damages (additional damages incurred as a result of the landlord's failure to return the tenant's security deposit), and punitive damages (non-contractual damages for the landlord's willful and malicious bad conduct). You may also potentially recover damages for actions committed against you by your landlord beyond his or her unlawful retention of your security deposit, e.g. constructive eviction damages if applicable.
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