Security Deposits and the ‘Vacate Date’

Florida Statutes 83.49 requires that the notice sent by the landlord must:

1.  be sent certified mail to the tenant to tenant’s “last known address”;
2.  be sent within 30 days after the tenant vacates the premises;
3.  state the amount of the deposit being withheld by the landlord;
4.  state with specificity the reason for withholding the deposit;
5.  inform the tenant that he must respond within 15 days or the tenant will forfeit the amount claimed by the landlord; and
6.  include the address of where the tenant can mail any objection.

Compliance with FS 83.49 satisfies all rules required by a real estate broker and prevails over any conflicting provision in FS 475.  Thus, it is crucial that you follow the requirements set forth by FS 83.49.

One of the questions that arises from FS 83.49 is, “when do I start the “vacate date”, especially when the tenant informs me that he is vacating but there has been no “agreement to vacate” nor has there been a writ of possession executed.  Florida courts are not all entirely clear on the issue. Here is an example.

Say the tenant’s lease expires on July 31, but on May 1, the tenant sends you a letter stating that he “will be vacating this month,” but the tenant does not actually give you a surrender date. You attempt to call the tenant, but cannot contact him. You visit the premises on May 7 and see that the premises are partially vacant. The rent is paid for May, so there is no clear evidence of abandonment. The keys have not been turned in. The month of June arrives and the Tenant fails to pay rent. In the meantime, you call your attorney and after consultation, have decided that “surrender” is too questionable. Therefore, you wait until June to have your attorney file an eviction for nonpayment of rent, which is obtained, and the Sheriff’s Office serves the writ of possession on June 7.

The question is, when does the “vacate date” start?  June 7? May 1? May 7?  Other?

Some courts have held that where the tenant informs the landlord of when he will be vacating that the landlord must use that date as the “vacate date.”  But see the distinction: in those cases, the vacate date is known. In the situation presented above, no date is clearly established.

If you make a deposit claim on June 28 (which is less than 30 days from the date writ of possession is served on June 7) the tenant could claim that you failed to make a timely claim within 30 days because he, allegedly, vacated on May 3 (and assume he in fact vacated on May 3), which is beyond the 30 day period to make a deposit claim.  But you had no evidence of when the tenant vacated.

The portion of FS 83.49 to note is this:

Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.

One of the conditions in FS 83.49(3)(a) that imposes the landlord’s obligation to form an intent or not to make a deposit claim is “for termination of the lease.”  The lease does not expire until one of three actions have taken place:

(1) tenant has abandoned;

(2) tenant has surrendered; or

(3) the lease has terminated.

Where there is no clear abandonment or surrender, the lease can only be terminated by writ of possession (FS 83.5(3)). Once the tenant has vacated and the lease is terminated, then the conditions have been met to start the 30 day time period to make a claim on the deposit.

Please know that there are court opinions to suggest that the actual date of tenant’s vacating is the date to start calculating, but there will be times when the property manager will not know the actual vacate date.  The question becomes, how do I handle this situation in my business practice. I believe the following is a sound procedure to enact.

As soon as the property manager receives a letter or communication from a tenant indicating his surrender (without stating the date of surrender of course), the property manager should call the tenant as quickly as possible and give notice of your intent to inspect the premises the next day. Once there, gather evidence that surrender has occurred (including having the tenant return the keys to you or your office and sign an agreement to vacate and surrender prepared by your attorney) and inspect the premises and document any damages. From that date, start the tickler to make a deposit claim.  

In addition, the lease should clarify issues regarding “surrender” and “abandonment” and provide procedures for the tenant to follow in this regard. Taking these proactive steps in your lease preparations and management practices will help to avoid contested issues like this.

To accomplish this effectively and efficiently, property managers need a landlord-tenant attorney to be proactive with them and available for quick advice and services during the ordinary course of their business.