Security Deposit 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 landlords holding and claiming a security deposit and for the tenant to object to the landlord’s claim. Florida does the same, and also encourages the parties to resolve these disputes informally if possible (see FS 83.49(2)(d)).

In addition to the Florida statute’s prescriptions in handling security deposit claims and disputes, Florida courts have had many opportunities to rule on issues that come out of this statute — and there are many. Other jurisdictions’ courts have ruled on many security deposit issues.

In the world of litigation, it’s always advisable to “play it safe” and take the more conservative approach to making security deposit claims. The following are “dos” and “do nots” based on FS 83.49 and relative case law:

Security Deposits: Do

  1. At the time the lease is entered into, mark on your calendar the vacate dates according to your lease. If the tenancy is (or becomes) 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).
  2. 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 the 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.
  3. Calculate the 15 days and 30 days by the actual vacate date.
  4. Inspect the property as soon as possible after the tenant vacates — e.g. no later than 1 week afterward—to give the 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.
  5. 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.
  6. After the move-out inspection, the 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 and/or service quotes. These service invoices and quotes should be completed and given to the landlord no later than 10 days after vacating to give the landlord time to prepare the security deposit claim.
  7. Store all evidence to support each claim the landlord intends to make on the security deposit.
  8. Gather and organize all service and repair receipts, invoices, and quotes, in addition to an accounting ledger for unpaid rent and fees.
  9. Calculate and itemize an accounting ledger for the total amount of monies owed for your records.
  10. Prepare the security deposit claim notice:
    • Identify the Tenants in the “to” section;
    • Date the notice for the date that you deliver the notice;
    • Make the claim language fit FS 83.49(3)(a) in substantial form;
    • Inform the tenant he must respond within 15 days or the tenant will forfeit the amount claimed by the landlord;
    • Identify the Manager making the claim;
    • Include the address of where the tenant can mail any objections;
    • Review the notice for accuracy;
    • Sign the notice; and
    • Make a copy to deliver to the Tenant.
  11. Itemize the event for the money owed (i.e. damage caused, fees unpaid, rent unpaid).
  12. Specifically state the reason for each claim (e.g. (a) professional cleaning carpets in the 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).
  13. Identify the amount of money owed for each claim (note: estimate the amount of the claim even if you do not know the exact amount at the time of making the claim).
  14. 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).
  15. 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 the exception, FS 83.49(5)).

Security Deposits: Don’t

  1. Claim that the security deposit is “forfeited” (Security deposits are claimed, not forfeited by the Tenant).
  2. 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).
  3. 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 their agents. This “meeting of the minds” requires the parties to agree to the material fact of the amount of fees and charges.
  4. Claim damages within “normal wear and tear.”
  5. Claim damages that were not caused by Tenant.
  6. Fail to consider for diminution of value of a damaged item (e.g. age of the item and its condition prior to the tenant’s damage).