WHAT YOU CAN DO IF YOUR LANDLORD DOES NOT
RETURN YOUR SECURITY DEPOSIT
Your security deposit is intended to protect the landlord from loss if you breach your lease (move out before you are supposed to) or if you damage the unit that you rent.
Your landlord has 15 days after you move out to return your security deposit to you. If your landlord is not going to return your deposit or intends to make a claim on part of your deposit, the landlord must send you a written notice by certified mail, within 30 days after you vacate, stating his intention to keep all or part of your security deposit and the reason why.
The law requires that the tenant take certain steps to enforce their right to return of the security deposit.
Whether you have a written lease, or have no written lease and pay rent weekly or monthly, then seven (7) days before you move out the landlord has to receive a letter, by certified mail or personal delivery, containing the date you will move out and your new address. Keep a copy of the letter. It is always best to send the letter certified mail, return receipt requested, so you will have proof that your landlord received the letter.
If the landlord sends a letter stating that your deposit will not be refunded or you will receive only part of your deposit and you do not agree, then you must send the landlord a letter, within 15 days of receiving the landlord's letter, objecting to the withholding. Send your letter certified mail return receipt requested and also keep a copy.
If you do not object to part of your deposit being withheld, then the landlord has 30 days from the date of the notice to impose a claim, to send you the balance of the money.
If you do not receive your deposit back within the 30 days or a letter stating why the landlord is not returning your full deposit, you can file a complaint with the Florida Hotel and Restaurant Commission, 8685 NW 53 Terracet, Miami, Florida 33166, phone (305) 470-5680. They will make sure the landlord follows the law that the deposit is returned in 15 days or a letter stating why the landlord is withholding is sent within 30 days. If the 30 days have passed and the landlord never sent the letter or the deposit, the Commission may take administrative action against the landlord for failing to follow the law. Sometimes, a landlord faced with administrative action by the Commission may refund the deposit or send the letter, to avoid being fined. However, the Commission does not make the landlord refund the deposit and will not intervene if you and your landlord have a dispute over how much of the deposit should be returned.
If you object to the landlord withholding all or part of your security deposit, then you may want to consider filing a lawsuit against your landlord in Small Claims Court for return of the security deposit, and any interest you may be entitled to.
A copy of the Florida statute on security deposits is at the end of this handout.
GENERAL INFORMATION ON SMALL CLAIMS COURT
In small claims court you can sue for no more than $5000.00.
You do not need an attorney to represent you.
The filing fees in small claims court are based on how much money you are suing for. If your claim is for:
$1.00 - $99.99, you pay $23.00 filing fee
$100.00 - $1,500, you pay $53.00 filing fee
$1,500.01 - $2,500, you pay $96.00 filing fee
$2,501.00 - $5,000, you pay $129.00 filing fee
You can ask that the filing fee be waived if you are low income.
If you use the Sheriff to serve the Statement of Claim, it will cost you $21.00.
If you use a court approved process server to serve the defendant (sometimes quicker than the Sheriff), it will cost approximately the same. The clerk's office can assist you with names of approved process servers.
You can file your small claim at any of the following court locations: (the numbers in parentheses are the branch court numbers)
Dade County Courthouse(05)
73 West Flagler Street
Miami, Florida 33130
Telephone: 375-5775
COUNTY COURT BRANCH LOCATIONS
Caleb Center (N.W. District) (20)
5400 N.W. 22 Avenue, Room 205
Miami, Florida 33142
Telephone: 636-2255
Coral Gables Branch (25)
(South Central District)
3100 Ponce de Leon Blvd.
Coral Gables, Florida 33134
Telephone: 569-2500
Cutler Ridge Branch (South District) (26)
10710 S.W. 211th Street
Miami, Florida 33189
Telephone: 252-5870
Miami Beach Branch (East District) (24)
1130 Washington Avenue
Miami Beach, Florida 33139
Telephone: 535-4200
North Dade Justice Center (23)
15555 Biscayne Boulevard
North Miami Beach, Florida 33160
Telephone: 354-8707
You should know precisely who you are suing -- the correct legal name of the person or business you are suing.
If the defendant/landlord is a corporation, you may get a list of officers of the corporation from corporate information of the Florida Secretary of State, 1-904-488-9000 in Tallahassee. You may write to the Secretary of State, Corporation Division, The Capitol, Tallahassee, Florida 32304 or get the information from the Secretary of State Internet site http://ccfcorp.dos.state.fl.us/index.html . If you are suing a corporation, you can serve the president or vice-president of the corporation. "Serve" means having the sheriff or process server personally hand a copy of your lawsuit to that person. If the president and vice-president are absent, then you can serve treasurer, corporate secretary or general manager.
At the clerk's office you will have to fill out a Statement of Claim, and pay the filing fees. There will be clerks available to help.
After you have filed your suit, you will be notified of a place and date for a pre-trial conference. Be sure to attend the conference; if you do not, the judge will dismiss your case. If the defendant does not appear for the hearing, a default judgment may be entered against the defendant. The pre-trial conference is held to determine whether or not your lawsuit should go to a full hearing before a judge, or to see if it can be settled out of court.
Sometimes at the pre-trial conference the Judge will ask you if you want to try mediation. This is a process where you and the other party sit down with a mediator and try to make a settlement of the case instead of having a trial. The advantage is that your case is over right away and you are sure of the result, instead of taking a chance with a trial.
The judge at the pre-trial conference may also tell the parties what kind of evidence and witnesses should be presented at the trial.
WHAT WILL HAPPEN AT YOUR TRIAL
The trial is the final hearing in your case. At the trial all the witnesses testify and both sides present whatever documents or other evidence they have. The trial may be held in the Courtroom or the Judge's Chambers.
If you have filed the action, you are the plaintiff and you present your case first. You can start with an "opening statement" in which you explain to the court what the case is about, what you are going to prove and how you will prove it. The defendant can also make an opening statement but may decide to do that when he presents the defense.
After the opening statement you present your witnesses and all your documents and other evidence (such as pictures that there was no damage in the apartment, etc.). Your witnesses present their testimony by answering questions put to them by the plaintiff. This is called direct examination. When the plaintiff finishes questioning the witness, the defendant can cross examine the witness. After the cross examination by the defendant, the plaintiff can question the witness again. This is called redirect.
After the plaintiff has presented everything necessary to prove the case, then the defendant has the opportunity to present his side of the case. He can call witnesses and introduce documents and other evidence. The plaintiff can cross examine the defendant's witnesses.
When the defendant is done with his defense, the plaintiff can present witnesses or evidence which rebut the defendant's case.
After both sides have presented their cases, then both the plaintiff and defendant can make a closing argument. In the closing argument, each party tries to persuade the court to rule in his favor. You can restate to the Judge what you have proved and why you should prevail. The Judge then decides the case and issues a decision. This is called the judgment and will be written. Usually the Judge rules immediately after the trial; sometimes the Judge will take additional time to rule.
Sometimes when the plaintiff sues the defendant, the defendant files a counterclaim against the plaintiff in the same case. A counterclaim is a claim that the defendant has against the plaintiff, which may or may not have arisen out of the same transaction that gave rise to the plaintiff's claim. For instance, a tenant may sue for a security deposit but the landlord may file a counterclaim for all the damage that the tenant did to the unit. If a counterclaim is filed, then at the trial, the defendant has to prove the counterclaim, just like the plaintiff has to prove the original claim.
The judge may award the prevailing party (this means the person who wins) court costs, and possibly attorney's fees, if the prevailing party was represented by an attorney, and there is a contract or statute that provides for attorney's fees.
2001 FLORIDA STATUTES
§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 salespersons, 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.
History.--s. 1, ch. 69-282; s. 3, ch. 70-360; s. 1, ch. 72-19; s. 1, ch. 72-43; s. 5, ch. 73-330; s. 1, ch. 74-93; s. 3, ch. 74-146; ss. 1, 2, ch. 75-133; s. 1, ch. 76-15; s. 1, ch. 77-445; s. 20, ch. 79-400; s. 21, ch. 82-66; s. 5, ch. 83-151; s. 13, ch. 83-217; s. 3, ch. 87-195; s. 1, ch. 87-369; s. 3, ch. 88-379; s. 2, ch. 93-255; s. 5, ch. 94-218; s. 1372, ch. 95-147; s. 1, ch. 96-146; s. 1, ch. 2001-179.
Note.--Former s. 83.261.
Legal Services of Greater Miami
November 2001
Forms \Brochures \Security Deposit