What Can a Landlord Do If a Tenant Improperly Uses Their Security Deposit to Cover Rent?

In Florida, you can charge tenants a security deposit before they move in. You can also charge tenants advance rent that you can automatically deduct for the months the advance rent was intended without giving any additional notice to the tenant at the time of making the deduction. Charging this advance rent can help you protect your interests in case your tenant skips out on rent and causes damage to your unit. However, there are a number of rules that you need to follow to remain compliant with Florida’s security deposit law.

First, you must put any requirement for a security deposit or advance rent in writing as part of the lease. There is no limit to how much deposit you can charge for the deposit at the state level, but there may be at the city or county level, so check these rules as they frequently change. Many landlords charge a security deposit that is the equivalent of one month’s rent.

Once you receive a security deposit or advance rent payment from the tenant, you are required to provide written notice to the tenant in writing within 30 days of the following:

  • Whether the funds will be placed in an interest-bearing or non-interest bearing financial account
  • The name of the financial institution where the funds will be held
  • The rate of interest
  • When interest payments will be made to the tenant

Additionally, you must provide a copy of Florida Statute Annotated Section 83.49(3), which outlines Florida’s security deposit law. These funds that you collect must be held in a separate account and not comingled with your own funds or transferred to your landlord account until you have followed the proper protocol.

Interest payments (if any) must be made to the tenant annually and when the lease terminates, but if the tenant leaves before the lease termination date, they forfeit their right to the interest payments. 

If the advance rent is sufficient to cover the unpaid rent and you plan to return the security deposit in full, you must provide the tenant with these funds within 15 days from when the lease termination.

You must give your tenant advance notice before you take any deductions out of the security deposit. You must notify the tenant in writing within 30 days of the termination of the lease of your intent to keep part or all of the security deposit. The notice must state:

  • The landlord intends to withhold part or all of the security deposit
  • The tenant has 15 days from receiving the notice to contest it
  • The reasons why the landlord is withholding the security deposit

If you do not follow these procedures to the letter, you can forfeit your right to keep all or part of the security deposit and you would have to sue the tenant for any unpaid rent or damages.

If the tenant does not object to your notice within 15 days, you must provide any remaining portion of their security deposit within 30 days of your initial notice. If they do object, you will have to resolve the dispute in court.

There are a few different reasons why you may withhold all or a portion of the security deposit, including:

  • Unpaid rent – Because the tenant is contractually obligated to pay rent, a failure to pay rent is a breach of the lease contract, so you can deduct a portion of the security deposit to cover the amount of unpaid rent.
  • Unpaid bills – If your lease requires the tenant to cover the cost of utilities, you can deduct unpaid bills from the security deposit.
  • Damage – You can retain an amount equivalent to the amount of damage the tenant caused to the unit that is beyond normal wear and tear.
  • Cleaning costs – If the cleaning of the rental unit is excessive and the unit is in a worse condition than normal wear and tear would cause, you can charge for cleaning costs.
  • Lease charges – You can also deduct charges that are provided by your lease, such as an early termination fee.

If you believe that you have justification to withhold a security deposit but your tenant is contesting it, a Florida landlord/tenant lawyer can help. He can explain your legal rights and duties after reviewing the circumstances of your case. He can provide representation in court, if necessary, or represent you in negotiations or mediation. For more information or to schedule a consultation with Mark, contact him at (954) 772-6800 or by email at mark@attorneystern.com.

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