) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages

XII. SECURITY DEPOSITS

A. Fla. Stat. § 83.49(3)(a) sets forth notification requirements when the tenant vacates the premises or upon termination of a written lease:

1. LL has 15 days to return security deposit with interest if there is no claim or

2. LL has 30 days to give T notice of LL’s intent to impose a claim against the security deposit.

3. Notice must:

a. Be sent by certified mail at T’s last known mailing address. If tenant does not give forwarding address LL must still send notice to last known address (the address of rented premises) Hicks v. Marchett, 4 FLW Supp. 525 (Fla. 20th Cir. Ct. 1996). The landlord may not send the claim to the vacated premises if he has knowledge of the tenant’s actual address Morkin v. Dulaire, 13 fla. L. Weekly Supp. 1228a (Broward County 2006). Landlord not, however required to send the claim to tenant’s attorney’s address where no other address was known, Newman v. Gray, 4 Fla. L. Weekly Supp. 271 (Dade County 1996).

b. State the amount of the claim.

c. Specify the reason for the claim.

d. State amount LL is claiming.

e. Inform the tenant he has 15 days to object or he will forfeit the amount claimed.

f. State the address the objections should be sent to.

4. If notice is defective or not timely tenant does not have to respond.

5. If landlord does not send notice, he forfeits right to security deposit no matter how much damage the tenant has caused. Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1983). Fla. Stat. § 83.49(2)(a); Gersten v.Cimovski, 43 Fla. Supp. 2d 38 (Fla. 17 Cir. Ct. 1990).

6. If tenant does not timely object to notice, then landlord keeps amount claimed and must return remainder within 30 days.

7. If landlord fails to escrow the deposit, he does not forfeit his right to claim against the deposit. Pekofsky v. Golden, 1__ Fla. L. Weekly 478 (Fla. 11 Cir. App.1993).

8. In order for a tenant vacating before the expiration of the written lease or oral lease to be entitled to a written claim from the landlord, the tenant must give written notice that he is vacating by certified mail or hand delivery at least 7 days before vacating; and inform the landlord of new address. Fla. Stat. § 83.49(5). Tenant’s failure to do so relieves landlord of notice requirement. Tenant’s failure to give notice does not forfeit tenants’s right to security deposit, Rolle v. Armesto, 6 Fla L. Weekly Supp 398 (11th Cir. App. 1999).

Landlord Terminates Rental Agreement Early: If the landlord evicts the tenant, the tenant is probably not required to give the 7 day notice in order to be entitled to a written claim from the landlord Speigner v. Holland, 1 Fla. L. Weekly 529a (Broward County 1993)

9. Landlord’s failure to properly claim the security deposit does not preclude an independent action for damages. If a tenant files a claim for return of the security deposit and prevails, the security deposit may not be used by the landlord for purposes of a set-off against his claim for damages. Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1984). But see Stephenson v. Cox, 13 Fla. L. Weekly Supp 910 b (Broward County 2006) tenant’s deposit was set off against landlord’s damages.

10. If tenant prevails on complaint for security deposit, but landlord prevails on counterclaim for damages, tenant is entitled to attorney fees on the security deposit claim. Fla. Stat. § 83.49(3)(c).

11. Security deposit can be used for back rent if not prohibited by lease. Pekofsky v. Golden, 1 Fla L, W eekly Supp. 478 (Fla. Dade County 1992).

REASONABLE WEAR & TEAR: Normal wear and tear in light of the length of the tenancy does not constitute damages.

Definition of normal wear and tear: “the wear which the property undergoes when the tenant does nothing more than come and go and perform the acts usually incident to an ordinary way of life.” Tirrell v. Osborn 55 A.2d 727 (D.C. App 1947).

Examples:

Stove and refrigerator cleaning - O.K. to deduct. Oak Hill Investment Co v. Jablonski 605 N.E.2d 998 (Ohio App 1992)

Carpet shampoo - held normal wear and tear Love v. Monarch Apartments, 771 P.2d 79 (Kan. 1989).

Real estate agent’s commission allowed as damages, McLennan v. Rozniak, 15 Fla. Supp.2d 42 (Palm Beach 1985).

Amount: evidence that Landlord paid for repairs is evidence that expenses were reasonable. Note Landlord is entitled to do the work himself though and may recover a reasonable cost of repair.

Burden of proof: Landlord must prove Tenant caused damages. Then burden on Tenant to show preexisting. Stegeman v. Burger Chef Systems Inc., 374 So.2d 1130 (Fla 4th DCA 1970).