One of the biggest issues property managers and landlords face is whether to return the security deposit, after being forced to evict a non-paying tenant.  An evicted tenant does not automatically forfeit the security deposit. The landlord or property manager must give proper notice as outlined by Florida Statutes 83.49(3) if he or she intends to keep the deposit. Failure to follow the statute will result in the landlord forfeiting the right to keep the security deposit.

Let’s start with an example:
Paul is a new property manager for a 10 unit apartment building. On October 1
st, Tom, the tenant in Unit 1, informed Paul that he would not be able to pay his rent on time because of a family emergency. Tom had been late before but always paid, so Paul gave him 2 weeks to pay. Subsequently, Tom started avoiding Paul’s phone calls and making more excuses. Some of the other tenants informed Paul that Tom was bragging that he had found a better place to live and was just saving his money for a down payment.

On November 2nd, Paul decided to serve Tom with a 3-Day Notice.  Tom did not pay the rent, and Paul hired an attorney to evict him. Tom was finally evicted from Unit 1 on December 15, and the unit was left in substantially the same condition as when Tom moved in, minus some normal “wear and tear.” Paul, angry at himself for listening to Tom’s excuses, kept the security deposit to offset the lost rent and the attorney fees and court costs. Paul did not send a notice to Tom informing him of his intent to keep the security deposit.

35 days after the eviction, Paul received a letter from Tom’s attorney demanding return of the security deposit.

Does Paul have to return the security deposit? The unfortunate answer is yes. F.S. 83.49(3) states that upon the tenant vacating the premises, “the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.” The statute goes on to state that if the landlord does not give the required notice “he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.”

What did Paul do wrong?  First, Paul should have consulted with his lease to determine whether he has a liquidated damages clause in it that clearly allows the landlord to keep the security deposit as liquidated damages upon breach of lease.  Assuming that there was a liquidated damages clause in the lease, Paul should have then sent Tom a Notice of Intention to Impose Claim On Security Deposit, within 30 days of Tom vacating the premises, via certified mail to the tenant’s last known address. The same applies to partial return of the deposit. If the landlord fails to send the required notice, the landlord forfeits the right to claim the deposit.

If there was not a liquidated damages clause in the lease, what should Paul have done?  Property managers and landlords must return a security deposit within 15 days of the tenant vacating the premises.