Legal or Not May 2018
LEGAL OR NOT by Brian Wolk, Heist, Weisse and Wolk, P.A.
Q: Our property managers appear to be puzzled about procedures with regard to security deposits. For example, we are confused as to what we need to do when returning the full security deposit with no claim being made. How long do we have to return the deposit in that case? Also, what if management decides to make a claim? How many days does the resident have to respond? My regional manager is also unclear as to what happens if the resident does not respond to our notice to impose the claim on the security deposit. We e-mailed our most recent notice to the resident in an effort to save money, as certified mail can be costly.
A: FS 83.49(3) gives the property manager 30 days from the time the resident vacates the apartment to make a claim upon the resident’s security deposit. In your case you made a critical error. The statute requires you to send the notice by certified mail to the last known mailing address of the resident. You should not have e-mailed the notice. Also keep in mind that the property manager has only 15 days from the date the resident vacates to return the full security deposit if the manager is not making any claim on the security deposit; however, the refund does not have to be sent by certified mail. If a proper claim is made on the security deposit, then the resident has 15 days to respond in writing. The apartment community may disburse the security deposit if the resident fails to dispute the claims within 15 days of receipt of the security deposit claim letter. The property manager should keep in mind even in that instance that the resident still has five years to bring suit for the return of the security deposit. If you find yourself taking more than 15 days and a resident or resident’s attorney accuses you of violating FS 83.49(3), do not respond to the resident or the attorney, and call your attorney at once. Remember, if the security deposit deduction is contested and the resident obtains an attorney and wins in court, the apartment community will be liable to the resident for significant attorney’s fees. Often the risk of a lawsuit outweighs the reward of retaining the security deposit, so make sure you fully comply with the statute.
Q: We are trying to non-renew the residents in one of our apartments because of problems we continually have with one of their minor children. During the last seven months, both our office and our corporate office have received numerous complaints from residents throughout the apartment community who have witnessed the child spray painting graffiti on the common area walls and breaking chairs in the pool area. Our courtesy officer one night found this child unsupervised in the parking lot trying to start a fire. Our lease requires 60 days’ notice to non-renew, and that deadline is fast approaching. We are concerned that the resident will claim discrimination, because they accused us of being hostile towards families. Should we non-renew? Are we required to give a reason to non-renew? We need to take action, as a number of residents are very upset about the conduct of this child.
A: There is surprisingly no requirement under Florida law to have a reason when you elect to non-renew a resident of a conventional apartment community. In the same way the resident can non-renew the lease, you can as well, as long as proper legal notice is given according to the terms of your lease, and provided that your lease complies with the Florida Statutes. However, major problems may result if an apartment community manager decides to non-renew a resident in a retaliatory or discriminatory manner. Non-renewing residents who complain about habitability issues or non-renewing a particular type of individual in a discriminatory manner is a violation of both Florida law and federal law. In your particular case, the residents may claim that you are discriminating against them because of the child, which would fall under familial status discrimination. If a fair housing complaint were filed against you, you would have to prove that you had independent reasons justifying the non-renewal, and that your reasons were not discriminatory in nature. This is when documentation of the child causing significant problems will help your case. Situations like this highlight the need for detailed record keeping, legal warning notices to the resident during the tenancy, and complete incident and phone logs. You should have your attorney review all your proof to evaluate whether you have enough independent reasons for non-renewal before issuing such a notice.
Q: I received a letter today written by a former resident named Arnold. He and his brother Jack signed a lease and lived together in one of our apartment homes. A week after moving in, Arnold severely injured Jack during a fight by hitting Jack with a golf club. Arnold was arrested, and Jack subsequently obtained a restraining order against Arnold. Management did not see Arnold residing on the premises and assumed he had permanently vacated. Jack and I have been friends for years. Jack vacated the unit after the lease expired, and with no damage to the unit found, I returned the full security deposit to him. I did not believe that Arnold should receive anything based upon his disgusting conduct. Now four weeks later, Arnold is demanding that the deposit be returned to him. Did we do anything wrong? Can this demand be made so long after he apparently vacated?
A: To begin with, properly trained property managers never choose sides when there is an ongoing dispute between residents. You friendship with the former resident Jack probably impaired your judgment. Since Arnold never authorized in writing that Jack should receive all of the deposit, you should have included him when you returned the security deposit. We recommend that the security deposit refund be made payable under one check to all residents on the lease. Keep in mind, it is not too late for Arnold to sue your apartment community. Arnold has five years from the date the lease was terminated to file a lawsuit over the security deposit disbursement. That is the statute of limitations in Florida that applies to written contracts. Many property managers mistakenly believe that if a resident does not respond within 15 days of receipt to the Notice to Impose a Claim on the Security Deposit, the resident will waive his or her right to formally object to the claims made against the security deposit. Those managers are misinformed; the resident has five years to bring suit.