Security Deposit Claim When Tenant Fails To Give Notice of Vacating

Tenants are entitled to be given notice of the landlord’s intent to make a claim on his security deposit “upon vacating for lease termination,” and the landlord must send such intent by certified mail.  However, this mandate does not apply if the tenant fails to provide the landlord with notice of vacating as provided in FS 83.49(5), which states,

Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

Where the tenant vacates early or abandons the premises, the tenant must send the landlord notice in the following manner:

1) in writing
2) at least 7 days prior to the tenant vacating the premises
3) by certified mail or personal delivery
4) inform the landlord of an address where he may either mail the deposit or send written notice to the tenant as to why you are retaining the deposit.

If the tenant does not comply with this procedure, the landlord is relieved from his obligations under FS 83.49(3)(a) and can save the time and money by not sending the certified mail and intent to claim security deposit.

However, there is one notable disadvantage of taking advantage of FS 83.49(5); namely, if the tenant claims he personally delivered notice of vacating to the landlord, but the landlord did not actually receive the notice and thus does not mail the deposit claim to the tenant’s last known address, this creates the issue of whether the landlord has breached the statutory obligation under FS 83.49(3)(a).

In short, whether the tenant actually delivered the notice to the landlord personally becomes an issue of fact at a trial. This, of course, could cost the landlord much time, money and energy to resolve. It also creates risks of liability for costs and attorney’s fees under FS 83.49(3)(c).

Therefore, to avoid the potential issue entirely, the landlord could make it a practice to always certify-mail notices of his intent to claim the deposit to the tenant’s last known address in every lease termination. While this creates more burden on the property manager, it also avoids a situation where the tenant claims to have given notice to the landlord when the landlord did not receive it.

The question of whether to make this a practice is left to the sound discretion of the property manager.

It is important to note that the landlord must not forsake his responsibilities to document the move-out inspection (photos, documents, invoices, receipts, video, etc.) even if the tenant fails to provide notice of vacating to the landlord, because FS 83.59(5) still allows the Tenant to sue the landlord for the security deposit if he believes the landlord has no proof of claiming the deposit. If the landlord has not documented damages thoroughly and timely, it will be very difficult, if not impossible, for the landlord’s attorney to defend against the tenant’s lawsuit.

Therefore, the landlord must always follow proper procedures when documenting damages to the property in the event the tenant disputes the security deposit claim, but whether the landlord chooses not to certify-mail a deposit claim when the tenant fails to comply with FS 83.49(5), that is a matter of discretion. But as a general rule, it is prudent to always avoid creating legal issues when practical.