Security Deposit Claims: Dos and Don’ts

Security deposit disputes are one of the most common contentions and issues in landlord-tenant relationships and law. Most state statutes prescribe procedures for the landlord holding and claiming a security deposit and for the tenant to object to the landlord’s claim. Florida does the same. These security deposit statutes are designed to expedite and resolve monetary disputes informally; FS 83.49(2)(d)) states this expressly. To expedite these issues, it is crucial that landlords handle the security deposit properly.

Over time, Florida courts have given us many rulings on a variety of issues, which especially helps attorneys evaluate the best practices in the property management business. While there can be conflicting court rulings throughout the various county, district and appellate courts, it’s advisable to take a cautious approach to making security deposit claims to avoid potentially-successful tenant claims.

The following are “dos” and “don’ts” based on FS 83.49 and relative case law.

DO’S:

Mark Calendar: Vacate Date

At the time the lease is entered into, mark on your calendar the vacate dates according to your leases. If the tenancy is or becomes a month-to-month, the tenancy will expire at the end of the month upon a party giving the other party at least 15 days’ notice prior to the next month (unless the lease agreement provides for a greater notice period).

Notate the date that a tenant gives you notice of vacating the premises, even if the vacate date given is prior to the natural expiration of the lease. If tenant gives you a vacate date prior to the natural expiration of the lease, inspect the property the day after the vacate date given, to ensure the tenant has actually vacated.

Calculate the Claim Date

Calculate the 15 days and 30 days by the actual vacate date.

Inspection Process

Inspect the property as soon as possible after the tenant vacating—e.g. no later than 1 week afterwards—to give landlord time to prepare and mail the security deposit claim within 30 days, or to return the deposit within 15 days if the landlord does not have the intent to make a claim.

During the inspection, document and record all aspects of the premises to preserve all evidence in support of making claims, including but not limited to, videos, photos, etc.

After the move-out inspection, landlord should order all repair and move-out services to be performed on the premises (pursuant to the lease or as required due to damages caused by the tenant), and order service providers to give formal damage/service quotes. These service invoices and quotes should be completed and given to the landlord no later than 10 days after vacating to give landlord time to prepare the security deposit claim.

Store all evidence to support each claim landlord intends to make on the security deposit.

Accounting

Gather and organize all service and repair receipts, invoices and quotes, in addition to an accounting ledger for unpaid rent and fees.

Calculate and itemize an accounting ledger for the total amount of monies owed for your records.

Prepare the Claim

Prepare the security deposit claim notice:

  1. Identify the Tenants in the “TO” section;
  2. Date the notice for the date that you deliver the notice;
  3. Make the claim language fit FS 83.49(3)(a) in substantial form;
  4. Inform the tenant he must respond within 15 days or the tenant will forfeit the amount claimed by the landlord;
  5. The claim should only include monies owed at the time of the claim, e.g. unpaid rent, “added rent” (which must be provided for in the lease) and fees (provided for in the lease), and damages caused by the tenant beyond normal wear and tear;
  6. Identify the Manager making the claim;
  7. Include the address of where the tenant can mail any objections;
  8. Review the notice for accuracy;
  9. Sign the notice; and
  10. Make a copy to deliver to the Tenant.

Proper Claims

Itemize each event for the monies owed at the time of the claim (e.g. damages caused, fees unpaid, rent unpaid).

Specifically state the reason for each claim (e.g. (a) professional cleaning carpets in living room; (b) dusting and wiping down all blinds in windows; (c) vacuuming all window sills in all bedrooms; (d) picking up all yard trash and hauling; (f) carpet cleaning fee as provided in the lease).

Identify the amount of money owed for each claim (note: estimate the amount of claim even if you do not know the exact amount at the time of making the claim).

Remit Balance of Deposit

If there is a balance on the security deposit after having accounted for all claims, remit to the Tenant a check for that amount (do not hold any amount you do not intend to claim).

Certify Mail Claim

Deliver the security deposit claim by certified mail to Tenant’s last known address within 30 days of the tenant vacating upon the termination of the lease (see exception, FS 83.49(5)).

DON’TS:

Do NOT claim that the security deposit is “forfeited”. (Security deposits are claimed, not forfeited by the Tenant.)

Do NOT include future damages beyond the date you make the claim. (If future damages exist, the landlord can consider suing the tenant for damages after the security deposit is claimed.)

Do NOT claim fees or charges that were not agreed upon by you and the Tenant in the lease or addendum. (Contract law requires a “meeting of the minds” to charge the Tenant fees and charges for administrative burdens on or services provided by the landlord or his agents. This “meeting of the minds” requires the parties to agree to the material fact of the amount of fees and charges.)

Do NOT claim damages within “normal wear and tear”.

Do NOT claim damages that were not caused by Tenant.

Do NOT fail to consider for diminution of value of a damaged item (e.g. age of item and its condition prior to the tenant’s damage).

CONCLUSION

Following proper procedures for each security deposit claim will help your property management business, including saving the property owner money on unnecessary disputes, keeping tenants content with the claims, reduce wasting time on tenant disputes, to name a few.