Most lease agreements require a security deposit, usually before the tenant moves in. Some leases also require last month’s rent. A security deposit provides security for the landlord if the tenant breaches the lease agreement. The lease agreement may modify and vary what kinds of damage the landlord can apply against the deposit. This is one reason, among many, that the tenant needs to read the lease carefully.
If the specific language of the lease does not clarify all or any questions about what can be claimed against the security deposit, Florida law can provide guidance but, like many laws, it cannot cover the variety of specific facts that arise.
The following will discuss the legal standards used to determine what can and cannot be deducted from a security deposit, along with illustrative examples, and also touch on the basic procedural requirements to preserve a security deposit claim under Florida’s Landlord and Tenant Act.
WHAT THE LANDLORD CAN DEDUCT
In Florida, residential security deposits are governed by Fla. Stat. § 83.49 and applicable case law. Fla. Stat. § 83.43(12) defines a Security deposit 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.” Id.
Generally, a landlord can deduct unpaid rent, fees stipulated in the lease agreement, and property damage caused by a tenant, pets, or guests. But the landlord cannot deduct “normal wear and tear.”
Common examples of property damage that a landlord can deduct from the deposit to pay for repairs are the following:
· Broken or damaged walls, floors, carpets, windows;
· Broken or damaged fixtures or appliances;
· Broken or damaged plumbing;
· Cleaning costs; and
· Damages caused by pets.
To prove or refute a claim of property damage, the parties should document the condition of the property when the tenant moves in and when the tenant moves out. Typically, during the first and final walkthrough inspections. Prior to moving out, the tenant may request a signed list of damaged items and an opportunity to repair or replace damaged items. This can save the parties time and money and avoid otherwise unnecessary litigation.
ORDINARY WEAR AND TEAR
A landlord cannot deduct what is alternatively called “normal wear and tear” or “ordinary wear and tear.” Normal wear and tear is generally what it sounds like. But drawing the line between “normal wear and tear” and “property damage” is a fact-specific inquiry that takes various factors into account such as the length of the tenancy and the age of the “damaged” property.
Common examples of what a court may consider ordinary wear and tear are the following:
· Worn out furniture;
· Frayed Carpets;
· Appliances worm by time;
· Air conditioning unit deterioration; and
· Deteriorated plumbing.
This is often a commonsense inquiry. If the landlord can prove a precise dollar amount of damages, the tenant must prove that a reduction in damages is warranted because of normal wear and tear.
CLAIMING A SECURITY DEPOSIT
Once a tenant vacates the premises, Fla. Stat § 83.49 governs the procedure for the landlord to claim a deduction from the security deposit. Also, for the tenant to object to the landlord’s claim. Fla. Stat § 83.49, in pertinent part, sets forth the following requirements:
“(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.
[…] 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 and may not seek a setoff against the deposit but may file an action for damages after return of the 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. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.” Id.
In addition to the above requirements for residential tenancies, Fla. Stat § 83.49(5) states that:
“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 [lease …] shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises [….]” Id.
The notice of new address requirement is so that the landlord has an address to send a notice of intent to impose a claim on the security deposit. If the landlord has no mailing address to notify the tenant of the landlord’s claim, the tenant has prevented the landlord from following the requirement. Thus, the tenant may have waved his or her right to notice. If the tenant does not have a new address, the tenant should notify the landlord of an address at which the tenant can receive notice.
CONCLUSION
When it comes to security deposits, like any matter that may have to one day be, you are best served by being diligent in protecting your interests. The same is true whether you are a landlord or tenant. But especially a tenant because the tenant is at a natural disadvantage; after all, the landlord holds the deposit and probably drafted the agreement, and if the landlord objects to returning the deposit, the burden is on the tenant to take legal action.
What is certain, is that regardless of any objective rule or standard, ordinary wear and tear is one of those phrases about which landlord and tenants will disagree.
Last updated September 15, 2022.
By Michael N. Bress, Attorney at Law
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BRESS LAW FIRM, PLLC. Estate Planning (Wills, Trusts, & Estates), Business Law, and Landlord Tenant Law. The Bress Law Firm is the sole practice of Michael N. Bress, Attorney at Law. We are located at 2980 NE 207th St. #300, Aventura FL, 33180, but serve clients throughout Miami-Dade and Broward. Appointments are by appointment only. If you need legal help from a landlord and tenant lawyer, Schedule a Free Legal Consultation. Contact the Bress Law Firm by phone 954-336-8049, email michael@bresslaw.com, contact form, or visit our homepage at www.bresslaw.com.
