Written by attorney Jeffrey B. Lampert

Protecting A Tenant's Security Deposit

The expression that a "picture is worth a thousand words" can have no better application than when a tenant moves into and out of a rental unit Pictures are much more convincing in Court if a law suit is filed based upon the landlord making a claim against the Security Deposit.

In this day and age of digital cameras and memory cards allowing hundreds of photos, a digital camera should be used when moving in. The pictures can be backed up onto a flash drive so as to be immune from heat, water, getting lost, etc. If there later were to be a controversy, the pictures can readily be printed up, emailed, and otherwise preserved.

Upon moving in, every blemish, every stain on the carpet, every door that is chipped, every hole in the wall, every wet spot on the ceiling, ge the idea...should be photographed AND included on the inspection sheet the landlord provides. This establishes the condition of the unit at the beginning of the rental period. If the landlord does not provide an inspection sheet, prepare one yourself, noting the problems. Have someone with you when the inspection is made. You don't want the landlord to be able to claim that the picture was taken at the end of the lease, not at the beginning.

At the end of the rental period, every area should be photographed. Here, having a video would be best as the individual can go room by room with a continuous sweep of walls, ceilings, carpets, appliances, and zooming in on the inside of the oven, refrigerator, bathroom shower stalls, toilets, etc..

This is not to say that a security deposit can not be protected if there are no pictures. A tenant can still prove up their claim that the property was surrendered in the same condition as that in which it was obtained, less normal wear and tear. But, the landlord making a claim for a security deposit claiming that the oven or fridge was dirty is typical. And how dirty is dirty? A wipe of a stain with a paper towel should not cost the tenants hundreds of dollars. A sicky mess would justify the landlord having to spend money to ready the unit for the next tenant.

Many landlords will simply hire a cleaning service to come in and then make a claim for the fee from the deposit, whether the unit was especially dirty or not. It helps the landlord ready for the new tenant, with the old tenant footing the bill for what should be a regular cleaning. Here again, a picture would effectively contradict the landlord's position.

Moving is a time of stress and anxiety. Taking time to obtain a video-cam, or cleaning the refrigerator or an oven may seem overwhelming on top of everything else. And, many tenants presume that they will lose the security deposit no matter what they do. Still, the money is important, and if the tenant leaves the premises in good condition, there is no reason to simply give up on the entitlement.

One approach to consider would be for the tenant to hire his/her own cleaning company. Yes, it costs money, but it also frees up the tenant from having to take the time to do the job him/herself. And, without intending to insult anyone reading this, lets face it, a tenant moving out is less likely to do a good job than someone who is paid to do the job well. And, very importantly, the cleaning company hired by the tenant then becomes an excellant source of witnesses if there is to be a trial. Obviously, the tenant's cleaners would testify that they did a bang-up job--otherwise, they would have to admit they were paid and did not do the job well.

Another step to be taken to protect the security deposit, in addition to actually making sure the premises is left in clean condition, is to give the landlord an address to which to submit any claim on the deposit. In my jurisdiction, which is Florida, a landlord has 30 days from the date the property is vacated to make a claim on the security deposit. The tenant then has 15 days from date of receipt to dispute the claim. If the tenant does not dispute the claim--by certified mail--on time, the landlord can retain possession of the money.

However, the statute makes an exception for the situation when the tenant does not give the landlord notice of the new address. The landlord can then use the last known address--typically the rental unit--and if a proper changee of address is not filed by the tenant with the post office the tenant will not get the notice,and the landlord will keep the money.

If the landlord is provided the notice of the address to which the landlord's claim upon the security deposit--which should be sent by certified mail--and still does not give notice to the tenant within 30 days, the landlord will lose the case brought by the tenant--EVEN IF THE UNIT WAS LEFT IN TERRIBLE CONDITION.

Under Florida law, the party winning the case in a dispute over a security deposit is entitled to an award of a reasonable attorney's fee. That may make it easier for a tenant to find an attorney willing to take on representation for little or no retainer--if the evidence of the condition of the premises is strong, and the lawyer feels confident that the tenant will prevail, the lawyer knows that the fee for litigation will be assessed against the landlord.

I realize that much of what is written here is more common sense advise than hard core legal advise, but ultimately, it is use of common sense that can head off a legal dispute before it can arise. The tenant having witnesses with them when the first inspection is made, taking pictures/videos, and having witnesses with them at the move out may help avert a problem from arising. Landlords are not fools. They do not like having to pay attorneys any more than anyone else. If a tenant has pictures of the move in and the move out, the landlord is much less likely to play games with the security deposit.

Additional resources provided by the author

For Florida, Section 83.49(3) Florida Statutes

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