THE SECURITY DEPOSIT CLAIM AND WHAT THE RESIDENT OWES

One of the most common areas of confusion regarding security deposits is knowing what to put on the Notice of Intention to Impose Claim on Security Deposit, hereinafter called the “Notice”, the form which according to FS 83.49 must be sent out to the resident within 30 days of the resident vacating the premises. We find managers do their best to figure out what the resident owes, either due to breaking the lease or simply leaving at the end of the lease with damages to the premise or otherwise owing the manager money. The problem is that this form only is dealing with the security deposit, or in some cases, advance rent that the manager is holding. This is not a “final bill” to the resident or the total amount a resident will possibly eventually owe. This common misconception causes managers to frequently fill out the Notice incorrectly.

What Amounts Are Put on the “Notice?”

A security deposit is the amount the resident owes to cover damages to the premises, monies owed to the manager under the terms of the lease and for full and faithful performance of the lease terms.

1. The resident breaks the lease by vacating

If the resident simply “skips” out of the lease, the manager can charge the resident rent that is owed at the time the resident skips out. The manager cannot accelerate the rent. Acceleration occurs when the resident is immediately charged for all the remaining rent owed under the terms of the lease. While the lease may provide for this, and it seems logical, acceleration is not a specific collection right granted to managers under Florida default remedies. A “skipping” resident owes rent due at the time of the skip, damages to the premises which exceed ordinary wear and tear, and any other amount legally chargeable to the resident under the lease terms. If a resident paid rent for June and skipped out June 20, it would seem that the resident would owe no rent, and that no rent could be placed upon the Notice. This is certainly not the intent of the statute, and since the manager has 30 days to send out the Notice, by July 1, the resident will owe another month’s rent which can and should be put on the Notice. You do not want to be returning the full security deposit if the resident skips out on the lease, as he will owe you rent. As you can see though, if the unit stays vacant, the resident will owe you more rent, presumably until the earlier of the end of the lease or until the unit is re-rented. How can you put this on the Notice? You can’t, and you don’t need to. The notice is only dealing with the SECURITY DEPOSIT and ADVANCE RENT funds!!!!

2. The resident is evicted

If your resident is evicted, you will be charging them everything in paragraph 1 above, plus your attorney’s fees and court costs, if your lease states that you are entitled to these sums

3. The resident vacates at the end of the lease

If your resident vacates as planned at the end of the lease owing no rent, you will not be charging the resident any rent on the notice, just damages that exceed ordinary wear and tear, and any other sums due under the terms of the lease.

Sums Owed That Exceed the Security Deposits

Often a resident will owe significant sums that exceed the security deposit, or after you send the Notice, you discover at a later time some further damage that was not caught or actually hidden from the manager. If you already claimed the entire deposit, this is not relevant to the prior Notice. While you do want to list on the Notice everything possible that is owed by the resident within the 30 days window you have to send the Notice, if there are other amounts that the resident owes you as time goes on, these amounts will still be owed to you by the resident.

The Danger of the “Notice”

As many managers incorrectly think that the amount on the Notice is the end all total amount owed, the resident also may think this. If a manager were to later sue a resident for accrued rent or later discovered damage, the resident could conceivably convince a judge that since it was not on the Notice, it is not owed. This common misconception can be cleared up by placing the following wording on the bottom of the Notice. This wording, though not required by Florida law, is a reminder to the resident and to the manager that the amounts you have listed on the Notice may not be the actual total amount that the resident will owe you.

This Notice Of Intention to Impose Claim on Security Deposit does not waive or limit any of manager's rights to damages or amounts due which may exceed security deposit or amounts listed on this form.