- Revising the Security Deposit Claim
- Accepting Rent and the Seven Day Notice
- Know The Lease
- Common Screening Mistakes



Revising the Security Deposit Claim
by Harry Anthony Heist, Attorney at Law


The tenant vacated, and you did an inspection and made the claim on the security deposit by certified mail as the law provides. Your maintenance staff then discovers some serious problems that you missed in your inspection, including fleas, bad touch up paint by the tenant and a hidden rug burn. Can you go back and send out a revised claim? Have you waived your rights to making an additional claim?. This situation will arise at some point when managing property, and timing is crucial. Simply put, if you are outside the 30 day window as required by Florida law, you will not be able to claim the damages from the security deposit. While this is the bad news, the good news if that the tenant still may owe you the money, and you may not have waived your rights to go after the tenant for this additional money.

Florida law provides that you have 30 days from the date that the tenant vacates the premises to send out the Notice of intention to Impose Claim on Security Deposit; for the purposes of this article, we will just call it the Notice. Years ago, Florida law only allowed 15 days to make a claim, but now there is some more time to examine the premises and make a decision as to what is owed. Keep in mind that we are dealing with making a claim against a security deposit, not figuring out what a tenant will or may ultimately owe you.

When should you send out the claim letter?

Waiting until the 29th day is always risky, as you open yourself up to a tenant claiming they left on one day and you claiming they left on another. A dispute subsequently arises which could result in you having to return the entire security deposit to the tenant, if a judge felt you were outside the 30 day window. We never want this to happen, so you should not wait until the 30 days are about to expire.

Get in the unit as soon as possible!

It is important that as soon as you get possession from the tenant, be it from surrender, eviction or abandonment, you get into the unit quickly. The purpose of this is not to make the claim as soon as possible, but to document the condition of the unit quickly, so a tenant does not later say that the property was damaged by someone else AFTER they turned over possession to you. A property could indeed be damaged by someone breaking into that unit some time after your tenant has vacated. If you attempt to charge the tenant for this damage, he may object and successfully convince a judge that the damage occurred after he vacated. Should you make the claim on the security deposit right away? No. If you are certain that you are going to make a claim, this is the time to pause and carefully begin documenting the damages and comparing the condition reflected in the move-in inspection report that hopefully you have.

You sent out the claim letter but discover more damages

Some property damage is not immediately evident at the time of the tenant moves out. Tenants sometimes successfully hide damages, paint over poorly filled holes in walls, mask odors with spray deodorants, or the unit may all of a sudden be infested with fleas two weeks after the tenant moves out! A unit that is heavily cooled by air conditioning may not reveal the true smell of the years of cigarette smoking or urine damage to a carpet. Some damages are simply missed in error by the landlord and later caught by the maintenance technician, who is more experienced in these matters and finds tenant damage at a later time. Occasionally, you may be managing the property for an owner who decides to find damages that you did not find.

You are within the 30 day window

If you have sent out the Notice already but are still within your 30 day window, you can simply prepare another one and send it out again to the tenant in the same fashion as the first Notice, being sure to again comply with the certified mail requirement. The tenant will of course be upset about the bad news, but you are within your rights to do this. Remember that the tenant does not have to receive the notice within 30 days; you simply must send the notice within 30 days.

You are outside the 30 day window

If you are outside the 30 day window and do not fall under any exception to the requirement to send the notice out within the 30 days, you will not be able to claim anything more from the security deposit than referenced in the initial Notice. The tenant should receive the "balance due tenant" indicated in the initial Notice. Even if the tenant owes you the money, the tenant should receive this balance back.

Does the tenant owe you the money?

The tenant will still owe you the money, but you will not be able to retain it from the security deposit. You will be able to send it to collections, try to get the tenant to pay or sue the tenant if you wish. The main issue is that the funds you are holding cannot be used for the amounts owed.

Suppose the original amount and the revised amount owed both exceed the security deposit?

Let us assume you are holding a $1000 security deposit and originally claimed damages of $1200 within the 30 day period. After the 30 day period expires, you discover another $500 in damages. You may feel that there is a need to send a revised Notice, but this is not necessary, and besides, it is too late to send an amended Notice. You already have claimed the entire security deposit, so this intent has already been established. Remember, a Notice is not a bill or a final accounting you are sending the tenant. It is simply a notice stating how much you will be taking from the security deposit as required by law. However, to cite the above example, if you discover more damages within the 30 day period, it is good practice to send an amended Notice, since some of the items claimed in your initial Notice may not hold up in court, if a dispute leads to deposit litigation.

Avoiding a possible waiver issue

There is a possibility of a tenant claiming that since you sent the Notice of Intention to impose Claim with a particular amount stated, you are now stuck with it and cannot now charge the tenant any more. For example, if a tenant breaks a lease owing you one month's rent and you make a claim for this one month's rent, more months of rent may become due if the unit remains vacant. You certainly do not want the tenant to think that just because one month was subtracted from the security deposit, this is all the tenant is liable to you for. The standard notice wording as stated in Florida Statute 83.49 does not address this, so we recommend that the following wording be placed on the bottom of your Notice just to be extra safe:


This notice does not waive or limit any of landlord's rights to damages or amounts due which may exceed the security deposit or the amounts listed on this form.

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Accepting Rent and The Seven Day Notice
by Harry Anthony Heist, Attorney at Law

The most common lease noncompliance is of course nonpayment of rent. Most landlords are quite familiar with this problem and know to serve a Three Day Notice in accordance with the law. If the rent is not paid within the three day time period excluding Saturdays, Sundays and legal holidays, an eviction can be filed, and the tenant most likely will be evicted. Life though is just not that simple. Many tenants engage in other non-rent noncompliances, such as having the unauthorized occupant, unauthorized pet, excessive noise disturbances or simply having a grill on the balcony which violates the fire code. There are many noncompliances that the tenant will engage in, necessitating the landlord to serve the Seven Day Notice to Cure. This notice gives the tenant seven days to either start doing something he is supposed to do, or stop doing something he is not supposed to be doing, or else the landlord may have a right to terminate the tenancy and begin an eviction if the tenant fails to vacate. The situation becomes complicated when the tenant is out of compliance with a lease provision unrelated to rent AND rent becomes due in the meantime. Timing of the notices and the actions of the landlord can determine whether or not the notices will remain valid and support an eviction.

The Continuing Noncompliance

Examples of noncompliances that would be considered "continuing in nature" include an unauthorized occupant or unauthorized pet. Here we have knowledge that the tenant is in noncompliance, and the tenant is served a Seven Day Notice to Cure. Let us assume the tenant is served this notice on the 27th of May and on June 1, rent becomes due. The landlord goes out to the property on June 5th, presumably to serve a Three Day Notice, as no rent has been received for June. She sees the unauthorized occupant's vehicle, serves the Three Day Notice and leaves. The tenant then comes into the landlord's office and hands the landlord the rent check. The landlord takes the check and deposits the money. Five days later, which is 13 days after the landlord has served the Seven Day Notice to Cure for the unauthorized occupant, the landlord again sees the occupant's truck in the driveway. It is clear that the tenant has not cured the noncompliance. Can the landlord terminate the tenancy? Quite possibly not. Florida law provides that if rent is accepted with knowledge of a noncompliance, the right to terminate the tenancy is waived, but not for any subsequent or continuing noncompliance. Under the above fact pattern, some judges will interpret the statute to mean that the landlord has waived its right to terminate until July. Some judges may also rule that a permanent waiver has occurred, although this does not seem to be a correct reading of the statute.

Should a landlord accept rent when there is a continuing noncompliance?

From the preceding example, it appears clear that the landlord should NOT accept rent or serve any type of demand for rent, i.e., the Three Day Notice , if a Seven Day Notice to Cure has already been served and the noncompliance has not been remedied.

Noncompliances which are not of a continuing nature

Unlike the unauthorized pet or occupant situation that is most likely a continuing noncompliance, the landlord will encounter situations in which the tenant is in noncompliance and then cures the noncompliance, only to go into noncompliance at a later time. Examples might include a gas grill on the balcony or the tenant who sporadically plays very loud music. The Fire Marshall may prohibit gas grills, or it may be in violation of the lease or condominium rules and regulations. The landlord serves the tenant with a Seven Day Notice of Noncompliance with Opportunity to Cure, and the tenant removes the grill from the balcony, hopefully not into the unit where it can be a fire hazard. Rent becomes due, a Three Day Notice is served, and the landlord accepts rent. Two weeks later, the grill reappears. Since the noncompliance was cured at the time the Three Day notice was served and rent accepted, the landlord's acceptance of rent should NOT jeopardize the ability to terminate the tenancy due to the reappearing grill.

Is a Noncompliance sporadic or continuing?

Sometimes we hear landlords say that they thought the tenant had cured the noncompliance because the tenant had received the notice. Did the landlord actually check to see if it was cured, or did the landlord just assume it was cured? Did the landlord make sure the grill was removed from the balcony? Once a Seven Day Notice of Noncompliance is served, it is incumbent on the landlord to investigate to see if the problem was solved before serving the Three Day Notice. If not, it is possible what was assumed to be a sporadic or easily cured noncompliance was not cured.

The tenancy has been terminated by a Seven Day Notice to Terminate

If the tenant fails to cure a noncompliance, the landlord should contact his attorney and seek guidance on whether the tenancy can in fact be terminated. If so, and at last resort, the tenant is served a Seven Day Notice of Termination. This is a very powerful notice boldly proclaiming that tenancy has been terminated. A Seven Day Notice to Cure is a warning, while a Seven Day Notice to Terminate says "get out within 7 days". But wait. Rent is now due, and the landlord needs the money. The tenant drops off the rent check, and the owner who desperately needs the money deposits the check. Yes. You are correct. The Seven Day Notice of Termination is now null and void. The owner now cannot terminate the tenancy because he has accepted the rent.


Your best bet is always to have your attorney walk you through the Seven Day Notice procedure and guide you along the way. Always remember that if your have served a Seven Day Notice to Cure or a Seven Day Notice to Terminate, you may or may not be able to accept rent. The next time the situation arises, just remember the slogan, "you cannot have your cake and eat it to", when you get the urge to accept rent after a seven Day Notice has been served. If you have an office with employees, allow tenants to direct deposit or pay by credit card, be sure you have a mechanism in place to prevent a rent check from being inadvertently accepted from the tenant in noncompliance.

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Know the Lease
by Cathy L. Lucrezi, Attorney at Law


Most landlords read the lease once. From then on, the landlord relies on memory and what he thinks it says. As time goes by, the landlord might read the lease, looking for a particular paragraph, but he skims over the details. Some landlords are so complacent about the lease they think they know so well, the landlords don't notice that it has grown illegible!

It is a basic premise of all landlord tenant law: the lease defines the agreement of the parties. Aside from the basics of rent amount, address of the premises, and term of lease, the lease describes what each party should expect from the other in a myriad of circumstances.

Anytime a landlord is unsure of what must be done in response to a question or demand from the tenant, the first step must be to look at the lease. Often, the answer is right there, in black and white. Sometimes, an interpretation must be made.

If you ask an attorney to do that interpretation, you will likely hear "I need to see the lease". The reason? The language (or even the punctuation!) of the lease often determines the answer to the question. If the attorney has your "basic" lease form, or has drafted your lease, the attorney will still want to look at the executed lease. That is because it is so easy for a lease to be changed while it is being signed. Or, the way the lease was signed may affect its enforceability.

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Common Screening Mistakes
by Cathy L. Lucrezi, Attorney at Law


Every property manager has the task of screening applicants. The property manager wants to find good tenants who will pay rent on time, not disturb the neighbors, and take good care of the property. The flip side of that is the property manager wants to weed out applicants who will fail to pay rent, have keg parties, or choose to remodel the unit. The decision will be easier if you avoid these mistakes.

"The screening criteria are in my noggin, not on paper."

Every property management team should have a clear, written screening policy. All staff who deal with the leasing process should be aware of the policy and have her own copy at her desk. Management must train staff, so they are aware of and follow the policy consistently with all applicants.

"I never tell the screening criteria to anyone."

A property manager's best tool to prevent potential fair housing complaints is a paper that tells prospective tenants about the criteria that will be used in evaluating the application. It does not have to be a copy of the policy itself. Rather, it can be an inviting document that lets a prospect know about the rental property.

"Once denied, I never talk to the applicant again."

If a property manager declines an application, or puts extra monetary conditions on acceptance, an "adverse action" letter must be sent to the person. That adverse action letter, if completed properly, tells the applicant everything he is entitled to know. It allows the property manager to communicate the decision to the applicant honestly and quickly.

If the applicant demands to more information or explanation, he should diplomatically be referred to the adverse action letter and the paper he initially received about the criteria that would be used. Details not contained within the adverse action notice should not be volunteered.

"I rely on my gut reaction in choosing a tenant."

While experience is invaluable, it is important to make sure one's experience is not influenced by biases that could be discriminatory. Every landlord has had the experience of the tenant who "looked" okay and then turned out to be a bad tenant. That, as well as fair housing complaints, can be avoided by having a written screening policy. Working on assumptions and experience alone just doesn't cut it.

"I choose the best applicant from a pool." Where there are several people competing for the same unit, it is best to treat them on a first-come, first-serve basis. When you reach a qualified applicant who meets your screening criteria, stop screening and offer the unit to that applicant.

Property managers should date and time stamp applications so there is no confusion about who was first. If an application is not complete (for example, when a tenant needs to bring in a paycheck stub), date and time stamp it when it is complete.


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revs'd 9/24

Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

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