Full question:
We have a rental property that we have put up for sale. There was a renter in the house until the end of November. My husband verbally discussed the damage to the house with the tenant and told him the damages more than exceeded the security deposit. The tenant agreed. My husband repaired and replaced everything that needed fixed, beyond normal wear and tear--approximately $1000. Two months later the tenant is now claiming he is due all his deposit because we didn't inform him in writing within 7 days that he would lose it, claiming it's a state law in Florida. Now--the lease states that the tenant has to give us a 30 day written notice for moving-he did not. The lease also states that if he moves in the months of Nov-Feb his deposit will not be returned. We told him we were putting the house up for sale--he had the option to buy. He verbally told us he was moving at the end of December, then called us to say he would be moving at the end of November, which he did. Now--my husband is upset and worried about the 7 day written notice on the security deposit. Is this something we need to get an attorney for? Or does the language in the lease take precedent?
- Category: Landlord Tenant
- Subcategory: Lease Termination
- Date:
- State: Florida
Answer:
The answer will depend on the terms of the lease, the reason for the early termination, and whether notice of early termination was properly given. If a tenant terminates a lease early without giving the required written notice and without fault on the landlord's part, it is possible for the landlord to hold the tenant liable for rent of the remaining lease term.
It is possible for a landlord to keep a security deposit when the tenant improperly terminates a lease early and apply it to damages for rent owed or damages beyond normal wear and tear to the premises. 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. Please read the statutes below to determine applicability.
Florida's statute regarding security deposits reads as follows:
The 2008 Florida Statutes
Chapter 83
LANDLORD AND TENANT
83.49 Deposit money or advance rent; duty of landlord and tenant.--
(1) Whenever money is deposited or advanced by a tenant on a rental agreement as security for performance of the rental agreement or as advance rent for other than the next immediate rental period, the landlord or the landlord's agent shall either:
(a) Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;
(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount of at least 75 percent of the annualized average interest rate payable on such account or interest at the rate of 5 percent per year, simple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord; or
(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord's violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant interest at the rate of 5 percent per year, simple interest. A landlord, or the landlord's agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each county, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord's violation of this section. In addition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that tenant at the rate of 5 percent per year simple interest.
(2) The landlord shall, within 30 days of receipt of advance rent or a security deposit, notify the tenant in writing of the manner in which the landlord is holding the advance rent or security deposit and the rate of interest, if any, which the tenant is to receive and the time of interest payments to the tenant. Such written notice shall:
(a) Be given in person or by mail to the tenant.
(b) State the name and address of the depository where the advance rent or security deposit is being held, whether the advance rent or security deposit is being held in a separate account for the benefit of the tenant or is commingled with other funds of the landlord, and, if commingled, whether such funds are deposited in an interest-bearing account in a Florida banking institution.
(c) Include a copy of the provisions of subsection (3).
Subsequent to providing such notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she shall notify the tenant within 30 days of the change according to the provisions herein set forth. This subsection does not apply to any landlord who rents fewer than five individual dwelling units. Failure to provide this notice shall not be a defense to the payment of rent when due.
(3)(a) 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. The notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of _____ upon your security deposit, due to _____. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address) .
If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit.
(b) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages.
(c) If either party institutes an action in a court of competent jurisdiction to adjudicate the party's right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.
(d) Compliance with this section by an individual or business entity authorized to conduct business in this state, including Florida-licensed real estate brokers and sales associates, shall constitute compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement personnel shall look solely to this section to determine compliance. This section prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and deposit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).
(4) The provisions of this section do not apply to transient rentals by hotels or motels as defined in chapter 509; nor do they apply in those instances in which the amount of rent or deposit, or both, is regulated by law or by rules or regulations of a public body, including public housing authorities and federally administered or regulated housing programs including s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended, other than for rent stabilization. With the exception of subsections (3), (5), and (6), this section is not applicable to housing authorities or public housing agencies created pursuant to chapter 421 or other statutes.
(5) 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.
(6) For the purposes of this part, a renewal of an existing rental agreement shall be considered a new rental agreement, and any security deposit carried forward shall be considered a new security deposit.
(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records as stated herein, and upon transmittal of a written receipt therefor, the transferor shall be free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. However, nothing herein shall excuse the landlord or agent for a violation of the provisions of this section while in possession of such deposits.
(8) Any person licensed under the provisions of s. 509.241, unless excluded by the provisions of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his or her license by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation in the manner provided in s. 509.261.
(9) In those cases in which interest is required to be paid to the tenant, the landlord shall pay directly to the tenant, or credit against the current month's rent, the interest due to the tenant at least once annually. However, no interest shall be due a tenant who wrongfully terminates his or her tenancy prior to the end of the rental term.
The Florida Residential Landlord-Tenant (FRLTA) statutes also address tenant defenses to a landlord's rent claim as follows: The 2008 Florida Statutes
Chapter 83
83.60 Defenses to action for rent or possession; procedure.--
(1) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1) [F.S. 1973], or may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accordance with s. 83.64. The defense of a material noncompliance with s. 83.51(1) [F.S. 1973] may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) [F.S. 1973] by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s. 83.51(1) [F.S. 1973]. After consideration of all other relevant issues, the court shall enter appropriate judgment.
(2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating.
The following statute governs obligations of a landlord:
83.51 Landlord's obligation to maintain premises. —
(1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building,
housing, and health codes; or
(b) Where there are no applicable building, housing, or
health codes, maintain the roofs, windows, screens, doors,
floors, steps, porches, exterior walls, foundations, and all
other structural components in good repair and capable of
resisting normal forces and loads and the plumbing in
reasonable working condition. However, the landlord shall
not be required to maintain a mobile home or other structure
owned by the tenant.
The landlord's obligations under this subsection may be
altered or modified in writing with respect to a
single-family home or duplex.
(2)
(a) Unless otherwise agreed in writing, in addition to
the requirements of subsection (1), the landlord of a
dwelling unit other than a single-family home or duplex
shall, at all times during the tenancy, make reasonable
provisions for:
1. The extermination of rats, mice, roaches, ants,
wood-destroying organisms, and bedbugs. When vacation of the
premises is required for such extermination, the landlord
shall not be liable for damages but shall abate the rent.
The tenant shall be required to temporarily vacate the
premises for a period of time not to exceed 4 days, on
7 days' written notice, if necessary, for extermination
pursuant to this subparagraph.
2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefor.
5. Functioning facilities for heat during winter, running
water, and hot water.
(b) Unless otherwise agreed in writing, at the commencement
of the tenancy of a single-family home or duplex, the
landlord shall install working smoke detection devices. As
used in this paragraph, the term "smoke detection device"
means an electrical or battery-operated device which detects
visible or invisible particles of combustion and which is
listed by Underwriters Laboratories, Inc., Factory Mutual
Laboratories, Inc., or any other nationally recognized
testing laboratory using nationally accepted testing
standards.
(c) Nothing in this part authorizes the tenant to raise a
noncompliance by the landlord with this subsection as a
defense to an action for possession under s. 83.59.
(d) This subsection shall not apply to a mobile home owned
by a tenant.
(e) Nothing contained in this subsection prohibits the
landlord from providing in the rental agreement that the
tenant is obligated to pay costs or charges for garbage
removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or
greater than any duty imposed by subsection (2), the
landlord's duty is determined by subsection (1).
(4) The landlord is not responsible to the tenant under this
section for conditions created or caused by the negligent or
wrongful act or omission of the tenant, a member of the
tenant's family, or other person on the premises with the
tenant's consent.
See also:
83.575 Termination of tenancy with specific duration. —
(1) A rental agreement with a specific duration may contain
a provision requiring the tenant to notify the landlord
before vacating the premises at the end of the rental
agreement; however, a rental agreement may not require more
than 60 days' notice before vacating the premises.
(2) A rental agreement with a specific duration may provide
that if a tenant fails to give the required notice before
vacating the premises at the end of the rental agreement,
the tenant may be liable for liquidated damages as specified
in the rental agreement if the landlord provides written
notice to the tenant specifying the tenant's obligations
under the notification provision contained in the lease and
the date the rental agreement is terminated. The landlord
must provide such written notice to the tenant within
15 days before the start of the notification period
contained in the lease. The written notice shall list all
fees, penalties, and other charges applicable to the tenant
under this subsection.
(3) If the tenant remains on the premises with the
permission of the landlord after the rental agreement has
terminated and fails to give notice required under
s. 83.57 (3), the tenant is liable to the landlord for an
additional 1 month's rent.
You may search the entire FRLTA at: http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0083/ch0083.htm.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
