Florida law gives plenty of guidance on how and when the security deposit should be returned by the landlord to the tenant, and mechanisms for dispute resolution, but is silent on what constitutes “ordinary wear and tear” vs actual property damage.
As a result, landlords and tenants in a dispute over potential property damage should know that they will likely have to fall back on Florida common law (i.e. what previous Florida courts have ruled) if any claimed damage is not clearly one way or the other.
We’ll go over in this article just what the Florida Residential Landlord and Tenant Act says about the rules for the return of security deposits, as well as some examples for what constitutes ordinary wear and tear vs property damage.
The best way to ensure the prompt return of your security deposit is to take good care of the property and leave it in “broom swept” condition, even if the lease already stipulates that an exit cleaning will be paid for by you.
Remember, transactions are ultimately between real people, and it’s always better to deal with others nicely to minimize the chances of any antagonistic behavior.
However, as we always like to say, trust but verify. That means protecting yourself by taking lots of photos and/or videos during the move-in inspection as well as the move-out inspection.
Make sure the seller or the seller’s representative is on-site, and try to capture them in the video along with hard proof of the date (i.e. your Apple Watch date display, that day’s newspaper etc.).
Don’t rush with the video as you might have difficulty seeing damages the landlord claims later on. If need be, supplement with as many photos as you can.
After the move-out inspection, send an email to the owner or owner’s representative with the link to where your photos and videos are stored.
If you took care of the apartment, the owner or owner’s representative should have told you at the end of the inspection that everything looks in order.
Email them to confirm that is still the case, and remember to provide them with your future mailing address if you haven’t already. As we’ll discuss in the next section, your landlord will need your mailing address to mail you your security deposit.
Pro Tip: Remember, this is real life. Courts have no sympathy for people who don’t have evidence to back up their claims. So make sure you document the condition when you took possession, and the condition when you moved out. Always have proof to backup your claims if any issues arise. Plus, doing so will disincentivize any unscrupulous landlords from trying to unfairly claim your security deposit for “damages.”
If the landlord doesn’t intend to claim any part of your security deposit for damages, then he or she has 15 days to return the security deposit to the tenant. However, if the landlord intends to retain part of the security deposit for damages, then the landlord has 30 days to notify the tenant by mail per Florida Statute 83.49 (3):
(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or 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 notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to. It is sent to you as required by s. 83.49 (3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to [landlord’s address].
If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a set-off against the deposit but may file an action for damages after return of the deposit.
(b) 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. The failure of the tenant to make a timely objection does not waive any rights of the tenant to seek damages in a separate action.
(c) If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.
Once the tenant receives a notice from the landlord, the tenant has 15 days to object to the claims against the security deposit.
If no objection is made within 15 days, then the landlord can deduct the damages claimed and return the rest of the security deposit to the tenant.
Keep in mind that either party still retains the right to sue, regardless of who is holding the deposit. Having possession of the deposit simply reduces the friction of getting the money, because the onus would be on the other party to initiate a lawsuit to get the money back.
Remember that the prevailing party gets paid his or her court costs plus their attorney’s fee, and many attorneys will offer to work on cases like this for nothing upfront, paid only upon success. Watch out though, some attorneys will still charge you for their time if you don’t win the case.
Pro Tip: Because of the threat of litigation, it’s always best to try to resolve the dispute directly as soon as possible. Considering that security deposits are usually only one month’s rent, it’s often not worthwhile to spend time litigating something so trivial, especially since you might end up owing more in attorney fees than the amount of the claim.
Landlords should not charge tenants for ordinary or normal wear and tear, which Florida law doesn’t specify but which we consider to be normal deterioration of elements of the property which occurs naturally and not due to negligence, intentional damage or accidents by the tenants or their guests.
Some examples of what might be considered to be normal wear and tear by most industry professionals include:
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Faded or slightly cracked paint
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Faded curtains
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Dusty blinds
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Slow drains from pipe build-up
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Battery replacement for smoke detector
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Minor holes from thumbtacks or nails from art
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Carpet slightly worn from use
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Loose faucet or door handles
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Loose grout on tiles
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Loose caulking around the bathtub or shower
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Faded finish on wood flooring
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Loose or cracked wallpaper
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Slight wobbling of toilet seats
Pro Tip: As a tenant, remember that you need landlords to write you a good reference letter if you ever wish to rent again. As a result, just because you might be able to get away with something because it’d be classified as normal wear and tear doesn’t mean you should. Treat landlords nicely, and they’ll be happy to give you a good reference. As one landlord told us, if a tenant wasn’t nice to a previous landlord, they probably won’t be nice to you either.
In contrast to ordinary or normal wear and tear, landlords can deduct money from the tenant’s security deposit for actual property damage, and can always sue the tenant for additional damages if the security deposit is insufficient.
Again, Florida law is silent on what constitutes property damage, so we can only rely on common sense, industry standards and Florida common law.
We believe property damage is anything more than the natural deterioration of a property which is caused by negligence, abuse or accident by the tenants or their guests.
Some examples of what might constitute property damage include:
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Broken windows
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Urine, pet or smoke odors
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Window blinds that are bent or broken
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Large holes in walls
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Cracked or gouged floor tiles
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Warped or water damaged wood floors
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Ripped or torn wallpaper
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Broken toilet seat, tank top or bowl
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Unapproved paint job; non-matching paint
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Broken or lost keys or key fobs
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Damaged doors or cabinets from forced entry
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Broken or damaged appliances
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Excessive dirt, trash and junk left behind
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Bugs, fleas or other infestation
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Plumbing backups
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Chipped countertops
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Ripped or bent window screens
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Mold due to poor or regular cleaning
Pro Tip: Only 7 states provide a definition of what constitutes normal wear and tear in their statutes: Alaska, Colorado, Idaho, Maine, Nevada, Texas and Vermont.
