Security Deposit Deductions
By Michael Geo. F. Davis, Attorney at Law


A security deposit is collected under most residential leases, and in most of those situations, the landlord will seek to make at least some claim against the security deposit after the tenancy has concluded.

Statutory definition

Florida Statutes 83.43(12) defines security deposits to mean "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 resident's breach of lease prior to the expiration thereof." Florida Statutes 83.49 permits the landlord to impose a claim on the security deposit and sets forth the procedure to do so. Thus, the landlord can impose a claim on the security deposit, not only for physical damage claims, but for any failure in the performance of the rental agreement by the resident.

There is a lot of confusion surrounding the term "damages". As FS 83.43(12) clearly states the term isn't limited to just monetary damage, such as the lost rent. Damages are the compensation recoverable for any loss suffered by the landlord due to the resident's breach of the lease. In the following paragraphs I have listed some of the common items for which deductions are made. The listings are examples only and are not intended to be exhaustive.

Most common damages

The most common damages chargeable against the security deposit are rent (the unpaid rent for the month of vacating: the entire month can be claimed, not just the prorated rent through the vacating date), late charges, NSF fees, accrued utilities, including water, sewer, gas, electric and garbage (utilities are often billed in arrears), pest control, valet trash service, eviction court costs and attorney's fees. Court Registry funds which are already the subject of a court order in the landlord's favor should not be listed.

Concession recapture is not permitted without clear authorization under the lease. Even then, there may not be a clear answer as to whether a concession can be recaptured. Our firm believes that the recapture should be allowed, since the statute places no prohibition on this. However, a judge could take the position that the statute does not directly provide the landlord with this remedy, and therefore the recapture of the concession is prohibited.

Our firm advises against accelerating rent or any other charges in order to deduct them against the security deposit. If after deducting all the current damages, a security deposit balance remains and the lease term has not expired, the landlord should contact his attorney to discuss his options.

Physical damages

Physical damages to the rental in excess of ordinary wear and tear are valid claims against the security deposit. The landlord should remember that after a year or more of use, there will be some ordinary wear which should not be charged to the resident. The landlord should also remember that many judges will build in a depreciation factor to many items supposedly needing repair or replacement. Thus, a landlord should not attempt to charge a resident for the full cost of carpet replacement, when the useful life of the carpet was already 90% exhausted prior to that resident taking occupancy. The term "ordinary wear and tear" does not appear in the Landlord/Tenant Act, but most judges will enforce a variation of this concept. Particularly with regard to physical damage claims, landlords would be well advised to settle with residents, if possible, rather than risk an adverse court decision. The amount in dispute is usually small compared to the liability for the prevailing party's attorney fees.

When the unit has not been left clean, cleaning charges can be deducted. Like ordinary wear and tear, "clean" has no statutory definition, and resident disputes are better settled then litigated. If the landlord imposes a standard nonrefundable redecorating or cleaning fee, then the landlord may have waived the right to charge for any further painting or cleaning, as the case may be.

If the resident has made unauthorized alterations to the rental, then the removal of the alterations and restoration charges are valid deductions from the security deposit. If the resident has made authorized alterations, which the landlord is leaving in place, then there should be no deduction from the security deposit. If the landlord is removing the authorized alterations, then the lease should indicate that it is the resident's duty to restore the premises to the original condition. If the lease is silent or unclear on this duty, then the authorization may be seen as a waiver of any resident obligation to restore.

Most capital improvements are the landlord's responsibility, such as roof, plumping pipes, outside or patio painting. Unless the damage is the result of the resident's intentional act or negligence, it is inappropriate to charge the resident for these repairs or repainting. Claims based upon the resident's intentional act or negligence are often difficult to prove.

Problem areas

Landlords, who are placing the rental for sale or re-occupying the rental, are tempted to overreach when charging the resident for cleaning and repairs, and judges are very aware of this dynamic. Another issue arises when a deduction is made without an actual repair subsequently being conducted. There is no legal requirement that a particular damage be repaired in order to entitle the landlord to a deduction from the security deposit. However, claiming damages without making the repair will require clear and convincing proof. Landlords should have particularly well documented files for any charges in the above scenarios.

Courts have held that certain damages are chargeable against the security deposit only if the lease provides for them in explicit, unambiguous language. Leases can maximize the claims against the security deposit by identifying these items as damages. If the lease isn't specific, a general catch-all clause may suffice. However, reliance on general language is risky. Examples of these damages are often found when a single family home, townhome or condo lease is breached by a tenant vacating early: continuing lawn care and pool service, continuing electric or gas for the fan, air conditioning or heat (to prevent mold or freezing damage to pipes), commissions, re-leasing fees, advertising charges, and administrative or delivery charges for the delivery of Three-Day or Seven-Day Notices. Even if the lease language clearly provides deductions for certain types of damages, a judge can decide not to enforce these charges against the resident, but rather make the landlord bear the cost, such as administrative fees of the landlord's agent.

Charge lists for repairs or replacements, when reasonable, will likely be upheld. It is overreaching that leads to judicial skepticism. If a landlord doesn't buy at retail, the charge sheets shouldn't be at retail.

Some damages are not chargeable against the security deposit regardless of a lease provision permitting the charge. Any administrative charge for preparing the notice of claim against the security deposit or the certified mail postage on the notice of claim are the landlord's statutory duties and are not chargeable to the resident.

Notice of claim

The landlord must account on the Notice of Intention to Impose Claim on Security Deposit not only for the security deposit, but also for any pet deposit or other deposits, such as appliance, utility, garage or common area deposits. Although not technically required under Florida Statutes, it is good practice to account for the last month's rent on the notice of claim.


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Back to Basics Series - "The Application Process"
by Harry A. Heist, Attorney at Law


The application process is arguably one of the most important parts of the landlord/tenant relationship. It is here that you are investigating your prospective resident for approval. The information you glean from this process will be the main factor in your making the determination to rent a significantly valuable asset to a perfect stranger for a period of at least a year in most instances, and the application will have ramifications after the applicant is approved and moved into the unit. We see so many mistakes made in the process, and these mistakes usually manifest themselves into problems later on in the tenancy after it is too late. Once the application is approved and the lease is executed by all parties, the real problems begin. This back to basics article will examine some of the techniques, tips and trick used by successful property managers to properly navigate the application process waters.

Providing the applicant with a Sample Lease

To avoid any misunderstanding or to forestall a claim by approved applicants that they have changed their minds because they did not agree with the lease terms, we recommend all applicants are provided with a sample of the lease early in the application process, and an information sheet detailing all the charges that will be due and payable in the event of approval. This information sheet should leave nothing out. All charges, deposits, and fees should be clearly listed. In order to hold or bind an approved applicant to signing a lease, the least you must do is make sure they know and understand exactly what they are getting into. The sample lease does not have to be the actual lease they will sign, but a sample that represents the lease all your residents sign. The monetary terms can be on the information sheet.

The Application Form

There are literally thousands of different applications in use in Florida. Each company it seems has created its own preferred application to suit its needs, and often we see problems in the application form itself. If your application form is defective or insufficient in some way, it needs to be fixed. This takes examining your form carefully and seeing if it suits your needs and achieves your desired goals.

The Application Form Layout: The application should be easy to fill out. Too many fill-in-the-blank forms are created where it is nearly impossible to properly fill out each section legibly. Not only is such an application hard to read, but this opens the door up for an applicant to conveniently leave something out or intentionally make something so hard to read that you cannot adequately and accurately process the application. This is often no mistake on the part of an applicant who has a problem in his past or current rental history. Take your own application and pretend you are the applicant, and fill out each and every section. Was it easy? Hard? How was your handwriting? You will probably find parts of the application that need to be made larger or longer so it is easy to fill out completely and read. We are all getting older, so larger spaces never hurt.

All adults fill out and sign their own application:We strongly recommend that each adult who will be residing in your unit fills out his or her own application and pays the required fee. Since we always recommend that all adult occupants are lease signers, with some limited exceptions, this means both John and Mary complete individual applications, regardless of the fact that they may be married. Using one application is a lazy shortcut and can result in a messy, confusing application. While it is legal in most places in Florida to charge two single people each a certain fee for processing the application and a married couple less, we recommend you avoid this and charge each person the same to process the application regardless for marriage status. If you were in a municipality that decided to make single status a protected class, charging a lesser amount to a married couple would constitute discrimination against single persons.

Confirm who is filling out the Application: Here is the picture. The applicant comes in, sits down in your comfortable chair, and you give her a clipboard and the application. She carefully and neatly provides his name, Social Security number, driver's license number, present address, and former address information, and all the other questions are answered and spaces neatly filled out. You send the application off to your screening company, and within minutes you have an approval. The applicant passes with flying colors. A few days later she fills out and executes a lease and moves in. Three months later, you receive a call from someone who stated that his identity was stolen, and coincidentally the person who stole it is your resident who you approved. What happened here? You probably failed to look at the identification and just looked at the application. Maybe the applicant told you she couldn't find his driver's license that day or brought the wrong pocket book or wallet, so you let your guard down. Oh YOU would never let this happen. Yes you would! It happens all the time, and we see it.

Is everything filled out?

We are amazed to see how many approved applications are not completely filled out, with questions not answered and spaces left blank. This absolute sloppiness on the part of the property manager allows an applicant who would have otherwise been denied to slip through the cracks. If an applicant were to fail to answer a simple "yes or no question", did he lie on their application? Probably not. Suppose that question pertained to a criminal background; the applicant was approved and moved in. You later find out that your screening company missed a serious felony, and now you want the person removed from the property. Can he be removed because he lied on their application? No, because he really did not lie. He just conveniently forgot to answer a question, and you failed to catch it.

Asking the right questions on the Application

The Eviction Question: Almost every application asks the following question: "Have you ever been evicted?" The applicant usually answers "no", and many screening companies will not catch this anyway, especially if the eviction has been recently filed. So the applicant is approved and moves in. You then get a call from a neighboring property or an "anonymous" call informing you that your tenant was evicted from their property. You decide to check out the public records, and sure enough, you find 3 evictions filed on the person. The key word here is "filed". Most people who have evictions filed against them move out before actually getting formally "evicted". Does this constitute a lie on the application? Possibly not. You see, your question is wrong. Ask the following question instead: "Have you ever had an eviction filed against you, or have you ever been asked to leave by a current or former landlord?" . As you can see, this question encompasses far more scenarios.

The Criminal Background Question:The other most common question that is often framed incorrectly pertains to the applicant's criminal background. The question usually is as follows: "Have you ever been convicted of a felony?" The applicant answers "no" and is approved through your screening process, and 2 months later you find out that your resident was arrested 3 times for trafficking cocaine, a felony, but each time "adjudication was withheld". What does this mean? Did he commit the crime? Of course. Do you want this person living on your property? No, but did he lie? No. The problem here is that your question only asks about "convictions". Many people are arrested, and for whatever reason, be it good lawyers, first time offenses, cooperating with police or some "deal", they receive "adjudication withheld", "adjudication deferred" or "nolle process" . This happens all the time. In an overburdened legal system many people who are arrested are placed into diversion programs or probation type programs rather than jail, even for serious felonies. You must rephrase your application question to something closer to: "Have you or any occupants ever been convicted of a felony or had adjudication withheld or deferred for a felony offense?" As you can see, this question will pertain to far more of your applicants, and you can then question them further and make a decision based upon your criteria. Remember, your criteria is just as important as your application form and must work for your needs as well.

The Bankruptcy Question: Renting to a person who has filed bankruptcy in the past is certainly legal and not necessarily dangerous. While a person who has filed bankruptcy in the past may file again, if the bankruptcy was fully discharged, the chances are relatively low. A person who has had all their debts discharged in bankruptcy may actually be a lower risk, since if the bankruptcy was recent, that person most likely has little debt. The question though should be asked nonetheless. If your screening reveals a pattern of bankruptcy filing and dismissals, this may indicate the applicant has used bankruptcy filing and dismissal as a way to stall an eviction, foreclosure or other collection activity. It is important to see if the bankruptcy was dismissed or discharged. Dismissal means that for some reason the bankruptcy was stopped or not pursued any further, while discharge means that the applicant's listed debts in the bankruptcy petition have likely been permanently wiped out. If an applicant is currently in an open bankruptcy case, we strongly recommend that you do not approve the application, as you may be pulled into the bankruptcy through a conversion or dismissal and subsequent refiling.

Checking past and current landlords

Often you are unable to find any credit problems possibly due to an applicant's lack of credit history, or possibly he has good credit but has current or past problems with landlords. There seems to be a growing and troubling trend for property managers to want only to look at a credit report or screening report, and not delve into the applicant's rental history by calling present or prior landlords. The idea that someone with poor credit will make for a poor resident is a complete fallacy. Many residents have horrendous credit histories but make exemplary residents. Some applicants with good credit may be nightmarish tenants in other regards. What is more important in our opinion is the information that you get from the current or past landlord. The problem is that some landlords, either by company policy or for fear of getting in some sort of trouble with privacy issues, are reluctant to tell the truth to you or to give any information out whatsoever. Many property managers (hopefully none reading this article) have given a glowing recommendation to an inquiring landlord only to hasten the resident's departure from their own rental or apartment community. Another classic move is for the applicant to make the phone number of their current or past landlord difficult to read so you try to call, but then give up as the number is wrong. This then slips through the cracks and you end up forgoing a proper check of the current or prior landlord.

A classic trick by an applicant who is having a problem with her current landlord is to provide a phone number on the application that is not that of her real landlord, but to a friend or even herself. You then call the number and identify yourself as a property manager with XYZ Property Management Company. The fake landlord is ready for the call and proceeds to say wonderful things about your applicant. This trick is played on property managers all the time. If the applicant gives a private property owner as her current landlord, take the time to check the public records and see who in fact owns the place where the applicant is living. Really confirm to whom you are talking, even if it means calling the number given on the application from someone else's cell phone and asking innocuous questions, such as, "Do you have any rentals available?", or "Do you accept pets?" If the call is placed to a fake landlord, you will fake them out and trick them at his or her own game, as the response will most likely be, "Rentals? We have no rentals, you have the wrong number." Property managers who fail to verify current or prior landlords are sure to have problems.

The "foreclosure story" is extremely common right now. The applicants either tell you that the owner of the home where they were living was foreclosed upon, and they had to move, or the applicants actually owned a home which was foreclosed upon. In both cases, you then really will have a tough time verifying their rental history, or you will believe them that they were former homeowners. It is amazing how the "foreclosure story" is easily sold to a property manager. For some reason, property managers feel sympathetic or sorry for applicants when they hear the "foreclosure story". Use the public records to your advantage, and dig around. If you can't figure out how to do it, ask your attorney, because your attorney will know how to do it. Again, don't let your guard down.

Taking a good faith or holding deposit

Most applications provide for some sort of good faith or holding deposit to be paid by the applicant, such deposit to be refunded if the applicant is not approved or to be applied to the security deposit if approved. Many applicants simply change their minds and want their money back. Whether or not you should return the money is the stuff of an entirely different article, but ALWAYS make sure that if you return the deposit money to the applicant, whether their payment was by check or money order, that the payment has in fact cleared the bank. Many people do not realize that a stop payment order can be placed on money orders, similar to a check, and applicants who are told they will forfeit money will often quickly stop payment on a check or even a money order. In the meantime, you may have a change of heart and end up sending them a check which they take and cash, only for you to find out the payment they gave you has been dishonored. Have we seen it? You bet.

How long will it take to approve an applicant?

You need to set a time frame in which to approve or deny an applicant. Just as you do not want them to keep you hanging when deciding to sign a lease, you cannot keep applicants hanging too long, or they can change their minds. Applicants can change their minds at any time before they are in fact approved. Some applications even give applicants 72 hours to change their minds, and while this is not the law but simply something that is placed in an application, it is nonetheless legally binding. If you are dealing with a condo or homeowners association situation when association approval is required, you need to make this real clear to applicants that there may be delays, and set some timeframes.

Once approved, when is the lease signed?

Your application and your Application Approval Letter should clearly give a deadline to the applicant as to lease signing. Whether this period is 3 days or 2 weeks, it depends on your own policy, but you do not want a situation when an applicant is approved and then continues to stall coming in to sign the lease agreement, while you are turning away prospective renters for the unit. The Application Approval Letter should clearly indicate that the applicant is approved and provide a firm deadline for lease signing. After that, it is fair game for you to rent the unit to someone else if the approved applicant has failed to execute a lease. Up until the time the approved applicant or resident takes possession, keep close track of inquiries for the unit, as you may need to be able to prove your were damaged in the event the approved applicant fails to take possession. Do not assume just because the applicant is approved and/or the lease is signed, the deal will actually happen.

Application Security

The applications you are presumably holding in your office in a filing cabinet represent a virtual treasure trove of information that can be used by someone who wishes to engage in identity theft or use the information to obtain credit cards in the applicant's name. It is absolutely crucial that you guard these applications and create a plan and procedure under which you will keep them out of the reach of any unauthorized persons, including other staff members. While we all like advertising, having your company's name on the front page of the newspaper because 50 people had their identities stolen, or credit card fraud was committed due to applications taken out of your insecure or unlocked filing cabinet, is not effective advertising in our opinion.

Are you all set?

Take a look at your application and your procedures and see if there is any room for improvement. Remember that this is the beginning of a long relationship, and you want to get it correct from the start. If you have a question about your application, feel free to give us a call.


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The Resident in the Military and Evictions
by Brian P. Wolk, Attorney at Law


Each day it seems as if there is another spot in the world where there is conflict, or where destruction due to a natural disaster has occurred. Members of the armed forces are being deployed in large numbers to areas all around the globe. The event triggering the deployment may be obvious. For example, a war in the Middle East may be the cause of increasing the number of active duty military servicemembers. The event triggering the deployment can also be one that is less obvious, such as an earthquake in a foreign country where the military mission is to distribute massive relief aid. The increased military presence has also created more questions for property managers from residents who are servicembers and family members of servicemembers who are unclear as to their lease obligations.

Background to the Servicemembers' Civil Relief Act

The Servicemembers' Civil Relief Act, also known as "SCRA", is a federal law which affords servicemembers numerous protections in civil lawsuits. Some of these protections allow servicemembers or their family members, or dependents in some cases, to delay or suspend civil liabilities. The act was signed in to law by President Bush in 2003. However, the earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, and previously was known as The Soldiers' and Sailors' Civil Relief Act. Why were these laws created? The answer to that question is simple. Lawmakers wanted those who are serving in the military to remain focused regarding their mission to protect our country and did not want the servicemembers being distracted by civil lawsuits involving them. It is also the belief that servicemembers are at a distinct disadvantage in terms of defending themselves from a civil lawsuit while being stationed in a far away land. Judges take this law very seriously and will in many cases "give the benefit of the doubt" to the military resident, if the outcome of the case is a close call. The United States Supreme Court in a 1948 opinion stated that the law should be interpreted "with an eye friendly to those who dropped their affairs to answer their country's call". The property manager attempting to evict a resident on active duty in the military or a resident in the process of reporting for active duty often encounters the following two areas that the Servicemembers' Civil Relief Act covers: protection against the entry of default judgments, and a stay of proceedings when the servicemember has notice of the proceeding. "SCRA" covers residential evictions of servicemembers or their dependents during the period of military service, unless the monthly rent is unusually high (currently an amount exceeding $2900.00; this amount is adjusted each year for inflation). "Dependents" are defined under the Act as the spouse of the servicemember, a child of the servicemember or an individual for whom the servicemember provided more than one-half of the individual's support for 180 days immediately preceding an application for relief under "SCRA".

Does the "SCRA" apply to the residents that I intend to evict?

Your three bedroom units are in hot demand because there are so few available in your market. Charlie, Wilma and Andrew are roommates and have stopped paying the monthly $2400 rent. You know that you can relet the unit the minute that the residents are evicted. You are very anxious to take back possession of the apartment. Yesterday, Charlie was called to active duty by the Coast Guard. Wilma is Charlie's girlfriend, and up until 7 months ago when Charlie was laid off, she was supported entirely by Charlie for the last 27 years. He had paid for all of her living expenses. Much to Wilma's dismay, Charlie has continued to pay for Andrew's college expenses, even though Andrew is not a relative. In fact, Charlie has provided Andrew with 55% of his living expenses over the course of the last six months. Are Charlie, Wilma and Andrew covered by "SCRA"? The rent amount is low enough to fall under the act. It is clear that as a member of the Coast Guard on active duty, "SCRA" will apply to an eviction action filed against Charlie. With regard to Wilma and Andrew, they may have coverage if they are treated as "dependents" of a servicemember. Unfortunately for Wilma, she is neither the spouse of Charlie, nor has she received enough living expenses in the recent past, since the servicemember must provide more than half of the support during the preceding six months. Andrew, on the other hand, is considered a "dependent", because he received 55% of his living expenses from Charlie during the last six months.

Obtaining a default against the servicemember or dependent of the servicemember.

During the normal eviction scenario, if the resident does not answer the complaint after 5 business days, the landlord is entitled to a default which is entered by the clerk of the court. The judge then will sign the final judgment of eviction. In the case of a servicemember or dependent of a servicemember, the process to obtain a default is more complicated. The judge, not the clerk of courts, must enter the default. To obtain the default, the landlord must first provide the judge with an affidavit regarding the resident's military service or the servicemember who is a father, husband or financial supporter. The article written by our firm THE VERIFICATION OF NON-MILITARY STATUS IS A MUST READ: http://www.evict.com/?page=articles_2#verification. If the verification is inconclusive as to military status, the judge may enter a default but also require the landlord to post a bond in a certain amount to protect the residents from damage, if the judgment is set aside at a later date because it turns out that one of the residents was a servicemember. If the military verification shows that the resident, parent, or financial supporter is in the military, then the judge will order that an attorney be appointed to represent the resident. This attorney is called a military ad litem attorney. Extra costs are involved in this process, and courts may pass this cost on to the landlord. The military ad litem attorney will attempt to locate the servicemember and will review the case file to determine if there are any valid defenses that the servicemember may assert. If the military ad litem attorney submits a report to the court that he does not believe that the resident has any valid legal defenses, the court then may enter a default and subsequently award possession back to the landlord. Remember this: The Act calls for those who knowingly file false military verification affidavits to be fined and IMPRISONED FOR UP TO ONE YEAR. You read that right! You can end up in jail if you mislead the court here.

Potential 90 day stay

Cletus, one of your residents, has been called up for active duty in the Navy. Cletus did not pay the March rent. You deliver a three day notice, and subsequently file an eviction against Cletus after his continued failure to pay the owing rent. Cletus answers the complaint with an admission that he has not paid rent, but claims that there was some sort of oral agreement made with your assistant property manager, allowing him to pay late, and that he has been struggling with his bills since his deployment. Now that Cletus has responded, your attorney tells you that the military ad litem attorney is not required here, since the military resident filed an answer with the court and has therefore appeared in the action. You are happy to hear that, but your happiness is short-lived, because your attorney informs you that Cletus is likely entitled to a stay of the proceedings for at least 90 days. The Act will often entitle Cletus to a stay of at least 90 days, no matter how weak his legal defenses, if he can simply convince the judge his military service is adversely affecting his ability to timely pay the rent. The judge can stay the proceedings for a lesser period of time, but often judges will exercise their considerable discretion in favor of the servicemember. The judge also has power to restructure terms of the lease, and has discretion to award a longer stay depending on the facts and circumstances.

Waiver by the servicemember

A property manager should still keep in mind that "SCRA" allows the service member to waive protections afforded under the act. Therefore, entering into a stipulation with the military resident is often a good idea. However, you should consult with your attorney to make sure the waiver wording listed on the stipulation is legally enforceable.


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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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