Security Deposit on Rental Homes
Under Florida Statute 83.43(12), “security deposit” is defined as: “any moneys held by the landlord as security for the performance of the rental agreement, including, but not limited to, monetary damage to the landlord caused by the tenant’s breach of lease prior to the expiration thereof.”
The security deposit is money that your give your landlord to be set aside to pay for any damages damage caused by your tenancy, such as you moving out before the end of the lease or you damaging the rental property.
The lease agreement that you and the landlord sign determines how much the security deposit is for your rental unit. As the tenant, you may be able to negotiate the amount of the security deposit with your landlord or you may even agree not to have one. The security deposit is not required by Florida law, but is required by most landlords in order to rent their property.
Florida landlords collect security deposits for several reasons:
- Protection against damage to the premises – This is the most basic reason to collect a security deposit. The damage caused should, however, be beyond normal wear and tear.
- To cover a loss due to non-payment of rent.
- Early termination of lease – This constitutes a breach of contract. Here, the landlord will use the security deposit to help find a replacement tenant.
- To cover unpaid utilities upon a move-out.
- To cover the cost of cleaning – Tenants need to leave the rental premises in the exact same condition they found it in when they moved in. When they don’t, the landlord will use the security deposit to restore the property for the next tenant.
Many landlords will try to find all sorts of excuses for holding onto some, if not all, of your security deposit. Two of the most popular excuses they use is that the carpet needs to be cleaned or replaced and the unit has excessive wear–and–tear. In some instances, the landlord simply claims damages that either do not exist or were there before you moved into the rental unit.
WHAT ARE YOUR RIGHTS?
When you pay rent to live in a house, apartment, condominium or mobile home, you become a tenant who is governed by the laws of Florida. It doesn’t matter whether you pay your rent weekly, monthly or at other regular periods. Also, it doesn’t matter whether the apartment, house, condominium, or mobile home is rented from a private person, a corporation, or government-owned housing units. These facts are true even when there is no written “lease” agreement.
A tenant has certain rights and responsibilities under Florida law. These are specified in Florida Statutes, Part II, Chapter 83, Section 83.49. A tenant in federally subsidized rental housing has rights under federal law. If there is no written lease, these laws regulate the tenant’s rights. There also may be a written lease that could affect a tenant’s rights. If there is a written lease, review it carefully and ask for help if you do not understand it.
As a tenant in Florida, you have certain protected rights under the law to your security deposit. If you have moved out of the property and your landlord wants to keep your security deposit, they must notify you. The landlord must send written notice about their intent to keep security deposit money to your address. Therefore, it is important for you to give your landlord your new address after you move out.
The law gives a landlord three choices on how to hold your security deposit:
- Put the security deposit in a separate non-interest-bearing account;
- Put the deposit in a separate interest-bearing account for the benefit of the tenant; or
- Post a bond and pay the tenant 5 percent simple interest.
A landlord who rents more than 5 separate dwelling units must give the tenant this information in writing within 30 days of receiving the security deposit. The landlord must also tell the tenant in writing when to expect to receive the interest payments.
When you are ending your lease and preparing to pay the final rent payment to your landlord, security deposits are not usually intended to cover this last month’s rent. They are intended only to cover the damages listed earlier in this article. Your landlord may agree to allow you to apply your deposit to the last month’s rent, but they not have to unless you both specifically agree.
Unfortunately for tenants, Florida’s landlord tenant law does not limit the amount of security deposit that a landlord can charge. Even though there is no limit, in most cases, landlords will not charge more than two months rent as a security deposit.
Landlords understand that excessive security deposit amounts will cause prospective tenants to look at other rentals instead. One to two months of rent is enough to protect landlords against potential damage, eviction, and vacancy costs without limiting the prospective tenants who are interested in the property.
After you pay the landlord a security deposit, they are required to notify you in writing no more than 30 days after receiving it.
The landlord can deliver this notice to you by mail or in person.
The written notice must include the following information.
The name and address of the bank or institution where the security deposit is being held.
Information about whether or not your funds are being kept separate or if they are being commingled with other tenant funds.
The interest rate at which the security deposit is being held (if it is being held in an interest-bearing account.)
If the landlord changes the location or the terms at which the security deposit is being held, they must again notify the tenant in writing within 30 days.
In Florida, landlords may be able to make deductions from your security deposit for these reasons:
- To cover unpaid rent.
- For damage to the apartment in excess of normal wear-and-tear.
- Other violations of the lease agreement.
Ordinary wear-and-tear of a housing unit is defined as “deterioration or depreciation in value by ordinary and reasonable use of the property.” Examples of non-deductible wear-and-tear include paint retouching, minor cleaning, small tack holes, nicks, and scratches.
Damages by a tenant can be anything that harms the landlord’s property. For example, if the tenant’s grandchildren knock a hole in the clubhouse wall, or break a window, then the tenant is responsible for the repair costs. If the tenant fails to repair the damage, then the landlord may be able to use the security deposit to make the repairs necessary to restore the housing unit to its former condition.
If the tenant is a hoarder and the landlord is required go to special lengths to clean the premises, then those costs can be deducted from the security deposit. The costs of cleaning a filthy apartment and removing debris and trash, including conditions caused by house pets, can be deducted from the security deposit.
Another example of damage by the tenant is replacement of carpets and drapery because of the tenant’s excessive smoking. If the tenant’s smoking has left a permanent odor of stale cigarettes in the curtains and rugs, this can be considered excessive wear-and-tear. The costs to clean or replace these items can be deducted from the security deposit.
In the state of Florida, a landlord is not required to do a walk-through inspection prior to move-out.
If you see any damage in the home, it is a good idea to take pictures or video of new living spaces when you move in in case you need to defend your security deposit when you move out.
If the Landlord is Returning the Security Deposit in Full:
Landlords must return the security deposit within 15 days of lease termination, along with any interest the tenant has earned on the security deposit.
If the Landlord is Keeping Money from the Deposit:
Landlords have 30 days from the termination of the lease to notify you in writing of their intention to keep a portion of your security deposit. This is known as a “claim.” If the landlord fails to notify you in writing within 30 days, the landlord forfeits (forgoes) the right to keep any portion of the security deposit.
Your landlord must send you written notice by certified mail to the address you have given to the landlord. As the tenant, it is your responsibility to give them a forwarding address. If they do not, the landlord is not required to provide you with written notice of the security deposit. This is why it is so important that you give your landlord your new address when you move out.
In the written notice, your landlord must state their intention to keep a portion or all the security deposit and list the reasons why.
In the written notice, the landlord must inform you that you have 15 days from receiving the notice letter to dispute or disagree with it, but you must send your disagreement letter in writing to the landlord.
The Florida Statute suggests that the landlord write a letter to you with a statement like this one:
This is a notice of my intention to impose a claim for damages in the amount of $$ upon your security deposit, due to (list of reasons.) 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).
By law, your landlord is required to send this notice to you by certified mail. The notice must cite Section 83.49(3)(a), Florida Statutes (2020), the amount of the claim, and reasons for the claims they want to withhold. The letter must inform you that you have fifteen (15) days to object or else your landlord is authorized to deduct the claimed amount. The letter must also inform you of the landlord’s address so that you can send your written disagreement/objection.
The landlord can deduct the amount claimed and then return the remainder of the security deposit to the tenant within 30 days of the initial written notice.
The matter could go to court. Whichever party wins will be entitled to the court awarded amount, plus court costs and attorney fees from the losing party.
If the landlord sells the rental property, they must transfer the security deposits and any interest earned to the new buyer. A written receipt must also be creating showing the amount that has been transferred.
The former landlord will then be relieved of any responsibility for holding the money on the tenant’s behalf. If the tenant or landlord violated any security terms before the transfer, he or she will still be held responsible for those violations.
WHAT DO YOU NEED TO DO?
In Florida, landlords must tell you if they want to keep some or all your security deposit. If they plan on keeping it, they have to send you a notice by certified mail within 30 days of you moving out of your rental home at the end of your lease (or they give up the right to keep it). If your landlord does not plan on keeping any of your security deposit, your landlord has 15 days to give your deposit back after you move out.
To protect your rights, you must tell your landlord your new address. Because the landlord must send the notice to your last known mailing address, always give your new address to the landlord in writing and keep a copy of the letter for your records.
Tenants who do not have a written lease and tenants who move before the end of their lease must give their landlord notice of the address where they can be contacted seven (7) days before they move out. Deliver your notice personally (with someone to witness it if possible) or send it by certified mail. Sending it by certified mail will give you proof that the landlord received it. If you do not give this notice, the landlord does not have to tell you about their decision to keep your security deposit.
If you do not give your landlord notice of your new address, you still have the right to sue for refund of the deposit. But tenants who move before the end of their lease should think carefully before suing for return of security deposit. If you moved out early, you could be charged an early lease termination fee that is greater than the security deposit amount. Check your written lease so that you know if your landlord has the right to charge an early termination fee.
If after 30 days the landlord does not return your deposit or send you a letter stating why all or part of your deposit won’t be returned, you can sue them for the return of the entire deposit. Although your landlord gives up the right to make a claim against your deposit after thirty days have passed, they can still sue you for damage done to the property. If the landlord does not return the deposit and you sue for its return the landlord can file a “counterclaim” for any damage done to the property.
If the landlord sends you a letter telling you that they are keeping some or all of your security deposit, and you disagree with the landlord, you must write back within 15 days (it is best to send it by certified mail). In your letter you must put in writing why you object or disagree. You can disagree with either the amount of money the landlord plans on keeping or the reason that they give for keeping it.
Here is a sample letter that you may use to respond to your landlord if they notify you that they intend to keep your security deposit and you do not agree that it is fair.
OBJECTION TO LANDLORD’S IMPOSITION OF CLAIM
PURSUANT TO SECTION 83.49(3)(b) FLORIDA STATUTE (2017)
[Date of Letter]
SENT VIA USPS CERTIFIED RETURN RECEIPT
City, State, Zip Code
Dear Landlord Name:
As you know, I was former tenant of yours at [Rental Unit Full Address], having moved out on [Move-Out Date.] I am writing this letter pursuant to Section 83.49, Florida Statute (2020) requesting that you return my security deposit.
While I am in receipt of your NOTICE OF INTENTION TO IMPOSE CLAIM ON SECURITY DEPOSIT, I dispute the allegations contained therein. Specifically, you indicate that you intend to impose a $_______ claim for [List of Reasons the Landlord gave to you.]
Based upon the foregoing objections, please return [Specific $ Amount] security deposit on or before [Date 15 Days after Move-Out]. If you fail to return my security deposit then I will have to seek legal remedies, the costs of which you may be held responsible. Thank you in advance for your anticipated cooperation.
[Tenant Signature and Printed Name]
It is usually best to try to reach an agreement with your landlord about return of the security deposit without going to court. If you and the landlord cannot agree, you can sue, but you will have to prove that you were not responsible for the claimed damage.
Because you will need proof/evidence of the condition of the rental property if you have to go to court, or even if you are negotiating with your landlord, it is a good idea to take pictures or recordings of the condition of the house when you move into a rental home and when you move out.
Walk through the house with the landlord and make notes of any problems at move-in so that you are not blamed for things when move out. If the Landlord refuses to do a walk-through with you, then take your photos/recordings at move-out after all your belongings are removed and after cleaning the space. It costs money to file a lawsuit (although you can request that the fee be waived if you can’t afford it), and the person who loses in court can be ordered to pay the other person’s court costs and attorney’s fees – so think carefully before giving up on reaching an agreement with your landlord and going to court.
Beyond the balance owed to you for your security deposit, depending on your circumstances you may also be entitled to additional damages for a landlord’s willful and malicious bad conduct. You may also potentially recover damages for actions committed against you by your landlord beyond his or her unlawful retention of your security deposit, such as constructive eviction damages if applicable, for example – being locked-out.
The Small Claims Court is set up to settle cases involving $8,000 or less without requiring people to have a lawyer. However, any person has the right to bring a lawyer if he or she so chooses.
WHAT TO CONSIDER BEFORE TAKING ACTION?
Before signing a lease, you should inspect the property and read the lease carefully, paying specific attention to the section about the use and protection of your security deposit. You can and should negotiate this provision before signing the lease and make sure that it clearly states whether or not you are responsible for cleaning the carpet and/or patch the walls at the end of the lease.
If you are having a problem with your landlord returning your security deposit because of normal wear–and–tear, it will be a good idea to consult a lawyer to learn about your rights. You can call at Community Legal Services of Mid-Florida 1-800-405-1417.
If your landlord fails to provide you with a notice that complies with Section 83.49(3)(a), the notice is “defective,” and your landlord waives his or her right to keep any portion of your deposit. This does not, however, prevent your landlord from later suing you for damage to the leased property. You are not required to respond to a defective notice, although it is generally a good idea to reply with your objection anyway if you dispute the claims and are unsure whether the notice complies with the statute.
A landlord may only deduct for damages and not for normal wear–and–tear. Unpaid rent and unpaid utilities can also be deducted from your security deposit unless your lease says otherwise.
Yes, a landlord is not limited to claiming only the security deposit if damage to the unit is greater than the deposit amount. They have the right to sue you in court for exceptional damages to the property.
Yes, you can get your security deposit back even if you have no written lease. This is also true for a month to month tenant. However, if you do not have a written lease, you must first give the landlord written notice of when you are ending the lease no less than 15 days prior to that date.
Yes, under certain situations. For example, if the landlord has breached (broken) their obligations under the lease before to move-in, then you can recover your security deposit. The answer to this question depends on the facts of your case. Contact us for help.