These days while the housing market is still in hibernation, the rental market is booming. In addition to your typical renter in the form of a college student, a contract worker, a snow bird, the bust of the housing market has brought a new breed of renters to the rental market — the misplaced homeowner. These misplaced homeowners or “accidental tenants” are still hurting from the damaged credit that a foreclosure, a mortgage release or perhaps a short sale might have caused in the still recent past and are confused, angry, sad and scared of what awaits them in the not so distant future.
Unlike your typical renter who has the know-how of navigating through the ins and outs of a rental market, the accidental tenant is either a complete novice to the rental market or is a bit rusty when it comes to renting having rented years ago, perhaps while in college or before marriage. This means that when our accidental tenant is going through a lease agreement he or she might not take the time needed to read through the entire agreement and comprehend all of its provisions and the obligations it imposes on the tenant. Such naïveté can have dire consequences for our accidental tenant when our tenant decides to move again.
More often than not the “accidental tenant” is still reeling from the emotional rollercoaster of being forced to walk away from his or her dream home and not knowing what lies ahead when he or she is scrambling to find a new place, any place, to move in and call home. Once this new, accidental tenant finds a rental, there is a lease to be signed. Typically, this accidental tenant pages through the lease agreement to find the place for him or her to sign and then signs the lease without reading through the entire document, eager to finally get the keys and start a new chapter in his or her life.
Some time passes and our accidental tenant is approaching the end of the lease term. For whatever reason our accidental tenant does not want to renew the lease. Perhaps our tenant has received a job transfer across the country or to another city which is hours away. Perhaps our tenant has found another rental that better suits his or her needs. Regardless of the reason for the nonrenewal, our accidental tenant is looking forward to the landlord refunding the tenant his or her entire security deposit.
However, it is not as simple as calling your landlord and telling him or her that you will be stopping by their office later that day to pick up your entire security deposit. Even if our tenant needs that security deposit to sign a new lease agreement, the process of retrieving your security deposit is a structured, statute driven process where both the landlord and the tenant have certain specific obligations that, if not performed by either party, would adversely affect the non-performer’s interests.
In particular, the Florida statute imposes the following obligations upon the landlord when it comes to refunding a tenant their security deposit:
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 and may not seek a setoff against the deposit ….
Fla. Stat. §83.49(3)(a)(2013).
Consequently, unless the landlord follows these specific rules, the landlord waives his or her right to make a claim against the tenant’s security deposit.
At the same time it is important to point out that the landlord is not the only one with obligations when it comes to refunding the security deposit. The Florida statute also imposes obligations upon the tenant. In particular, the statute clearly points out that:
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. …
Fla. Stat. §83.49(3)(b)(2013).
This means that the tenant must be proactive when it comes to protecting his or her interest in the security deposit. The tenant cannot just sit back and wait for the check to arrive or expect to pick up the check from the landlord at tenant’s convenience.
The tenant should be aware of the deadlines for the landlord to refund him or her the entire security deposit and the time within which the tenant must object to the landlord’s imposition of a claim.
Additionally, there are certain preventive measures that a tenant should take from the onset to reduce the likelihood of the landlord imposing a claim for damages.
For one thing, when moving into a new rental, it goes without saying that a tenant should never sign a lease agreement without first reading the entire agreement and understanding all of its provisions. Signing the lease agreement without reading through all of its provisions and then shoving it in a kitchen drawer never to revisit it again until the receipt of the landlord’s notice of intention to impose a claim is just asking for trouble.
Also, although Florida law does not require a written lease, a tenant should always ask the landlord for a written lease. Should issues develop with the rental that require the tenant to take the dispute to court, it is generally much harder to enforce the provisions of an oral lease as oppose to a written one.
Secondly, a tenant should set aside enough time to be able to conduct a thorough pre-rental walk-through with their landlord. A tenant should never skimp on the walk-through. It is crucial for the tenant to take the time and walk through the entire rental and make detailed notes on the state of the rental. The tenant should check to make sure all the fixtures are operational and nothing is broken or stained, etc. Should a tenant find damage, broken fixtures, etc., a tenant should promptly notify the landlord of such damage in writing.
Thirdly, a tenant should take pictures of the rental prior to or when first moving in. As they say, a picture is worth a thousand words.
All these preventive measures should provide a tenant, whether it is our accidental tenant or a traditional tenant, with better protection against an imposition of a claim by the landlord. At the very least, should there be a need to take the battle over the security deposit to court, the tenant would then be equipped with favorable documentation to advance his or her position before the judge.