REVISING THE NOTICE OF INTENTION TO IMPOSE CLAIM ON SECURITY DEPOSIT

 

The resident 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 resident 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 resident still may owe you the money, and you may not have waived your rights to go after the resident for this additional money.

 

Florida law provides that you have 30 days from the date that the resident 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 resident 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 resident 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 resident, 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 resident, 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 resident 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 resident has vacated. If you attempt to charge the resident 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 resident moves out. Residents 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 resident 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 manager and later caught by the maintenance technician, who is more experienced in these matters and finds resident 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 resident in the same fashion as the first Notice, being sure to again comply with the certified mail requirement. The resident will of course be upset about the bad news, but you are within your rights to do this. Remember that the resident 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 resident should receive the “balance due resident” indicated in the initial Notice. Even if the resident owes you the money, the resident should receive this balance back.

 

Does the Resident Owe You the Money?

 

The resident 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 resident to pay or sue the resident 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 resident. 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 resident 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 resident any more. For example, if a resident 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 resident to think that just because one month was subtracted from the security deposit, this is all the resident 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 manager's rights to damages or amounts due which may exceed the security deposit or the amounts listed on this form.