SURRENDERING RESIDENT WHO CONTINUES TO PAY THE RENT

If a resident who surrenders the rental unit continues to keep the rent current after giving up the right of possession, does the manager have the ability to retain the security deposit or last month’s rent? When does the statutory claim letter have to be sent? To answer these questions, it is important to first examine Florida Statute 83.49 in conjunction with Florida Statute 83.595.

Florida Statute 83.49 (3)(a) in part provides, “Upon the vacating of the premises for termination of the lease, if the manager does not intend to impose a claim on the security deposit, the manager shall have 15 days to return the security deposit together with interest if otherwise required, or the manager shall have 30 days to give the resident written notice by certified mail to the resident's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim.

The following is the full text of Florida Statute 83.595:

83.595 Choice of remedies upon breach by resident.

1. If the resident breaches the lease for the dwelling unit and the manager has obtained a writ of possession, or the resident has surrendered possession of the dwelling unit to the manager, or the resident has abandoned the dwelling unit, the manager may:
   1. Treat the lease as terminated and retake possession for his own account, thereby terminating any further liability of the resident; or
       
   2. Retake possession of the dwelling unit for the account of the resident, holding the resident liable for the difference between rental stipulated to be paid under the lease agreement, and what, in good faith, the manager is able to recover from a reletting; or
       
   3. Stand by and do nothing, holding the lessee liable for the rent as it comes due.
       
2. If the manager retakes possession of the dwelling unit for the account of the resident, the manager has a duty to exercise good faith in attempting to relet the premises, and any rentals received by the manager as a result of the reletting shall be deducted from the balance of rent due from the resident. For purposes of this section, "good faith in attempting to relet the premises" means that the manager shall use at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the manager uses in attempting to lease other similar rental units but does not require the manager to give a preference in leasing the premises over other vacant dwelling units that the manager owns or has the responsibility to rent.

A manager legally acquires possession of a rental unit three different ways: eviction, surrender or abandonment, all three of which are listed in Florida Statute 83.595(1). Regardless of how the rental unit is reacquired, one constant remains: the resident’s right of possession is terminated. Does this mean the lease is “terminated”? Based on the wording of the statute and which collection remedy the manager chooses in a lease-break situation, the answer will only be “yes” if the manager takes back the unit on “his own account”. Under Florida Statute 83.59 (3) (a), the manager’s obligation to send the claim letter is not triggered until the premises are vacated for “termination of the lease.”

Therefore, if the manager chooses to retake possession on the account of the resident, or “stand by and do nothing”, then the lease is technically not terminated. If a judge accepts this position, then the manager’s obligation to send the claim letter is not triggered until a replacement resident is found, or until the lease expiration date occurs. Therefore, if a resident clears the unit out and turns in keys because of a great new job in California, but continues to keep the rent current, the manager should be able to keep the deposit in escrow until true termination of the lease occurs, and then make a decision at that point (within 30 days) as to disposition of the deposit. Similar logic would apply to last month’s rent being held in escrow. It is important that the manager be able to document reletting efforts, not only to show that the manager has met its duty to use good faith in finding a replacement resident, but also to support the manager’s decision in holding off from sending the claim letter, when there may not be any immediate claim when the resident vacates early.

A related issue occurs if a resident is evicted. The manager still has the right under Florida Statute 83.595 to hold the resident to the lease balance when an eviction occurs. If the manager elects to find a replacement resident on the account of the resident after the eviction is finalized, a very good argument could be made that the manager can hold off sending the security deposit claim letter in accordance with the above guidelines. Nevertheless, our office recommends sending a claim letter within 30 days of the writ being executed, since after most evictions are finalized, at least the security deposit amount is owed, and some judges may be reluctant to accept an interpretation of the statute which allows the manager to delay in sending a claim letter after the right of possession has vested back to the manager. However, the better argument is that termination of the resident’s right of possession and termination of the lease can be two very different points in time.