Section 83.49(1) requires a landlord to hold a tenant's security deposit in
separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now
sues alleging that "upon information and belief" the landlord violated
83.49(1) because landlord commingled funds.  Alleges that as a result
tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in
the context that failure to abide by 83.49(1) by itself does not provide
any remedy to the tenant or waive the landlord's right to make a claim on
the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that
may be claimed by a tenant?

Thank you

Albert

Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783

What damages did the person suffer if 100% of the deposit was returned prior to any  lawsuit?

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  http://www.evict.com/ www.evict.com
Email:  mailto:harry@evict.com harry@evict.com

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 4:28 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Yes.

First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims.

Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).

Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.)

Just my two cents.

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.

On 2016-07-25 15:31, Alberto Cardet wrote:

Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant?

Thank you

Albert

Cardet Law, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

I agree with Joseph but I wonder if you think the outcome would be different if the landlord could show that at all times during the tenancy the funds in the account where the money was comingled never went below the amount of the security deposit. (assuming that it stayed there until it was proper to remove).

Also I was surprised that the definition of theft only requires someone to temporarily deprive the use of their property.

Florida Statute §812.0145(1)(c)1 (1), a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property and (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 4:28 PM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Yes.

First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims.

Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).

Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.)

Just my two cents.

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.

On 2016-07-25 15:31, Alberto Cardet wrote:
Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant?

Thank you

Albert

Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783

landten mailing list
landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

Q: Do you have a cite for the 2d DCA case that says that comingling does not result in a forfeiture of the deposit?

Joseph P. George, Jr., Esq.

Joseph P. George, Jr., P.A.

Dadeland Professional Building

9655 South Dixie Highway

Suite 112

Miami, Florida 33156

Telephone:  305-670-6706

Fax:            305-670-2048

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 4:28 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Yes.

First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims.

Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).

Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.)

Just my two cents.

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.

On 2016-07-25 15:31, Alberto Cardet wrote:

Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant?

Thank you

Albert

Cardet Law, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

When I see attorneys filing cases solely for the purposes of getting an attorney’s fee award when their client was not damaged in any way shape or form, it makes me ashamed to be an attorney.

Someday I would like to see the attorney’s fee provision revisited in landlord/tenant law. A number of attorneys are making their living off of awards exceeding $10,000 against small, sometimes elderly  landlords who file pro se eviction cases with minor defects using Supreme Court approved forms. Often multipliers are awarded.  If the Bar is  going to encourage pro se filings “to make access to the courts affordable and easier to the pro se filer” there should be some duty on the courts to give some guidance to the pro se filer. I was speaking with a judge in a smaller county and told him about the multipliers that were being awarded in some counties. He was astounded and thought that was absurd.  I agree.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  http://www.evict.com/ www.evict.com
Email:  mailto:harry@evict.com harry@evict.com

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Todd Allen
Sent: Monday, July 25, 2016 5:22 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

I generally do not file 57.105 motions, but I can’t imagine there being a better case.

Todd B. Allen, Esq.  |  Attorney

[Office]

239.593.7900

[Fax]

239.593.7909

http://www.lindsayallenlaw.com/ www.lindsayallenlaw.com

13180 Livingston Road, Ste. 206

Naples, FL 34109

http://www.lindsayallenlaw.com/

On Jul 25, 2016, at 5:16 PM, Leonard Cabral LensLaw@Lenslaw.com wrote:

I agree with Joseph but I wonder if you think the outcome would be different if the landlord could show that at all times during the tenancy the funds in the account where the money was comingled never went below the amount of the security deposit. (assuming that it stayed there until it was proper to remove).

Also I was surprised that the definition of theft only requires someone to temporarily deprive the use of their property.

Florida Statute §812.0145(1)(c)1 (1), a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property and (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

From:  mailto:landten-bounces@lists.flabarrpptl.org landten-bounces@lists.flabarrpptl.org [ mailto:landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 4:28 PM
To: RPPTL Landlord Tenant Committee < mailto:landten@lists.flabarrpptl.org landten@lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Yes.

First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims.

Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).

Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.)

Just my two cents.

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com/ http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.

On 2016-07-25 15:31, Alberto Cardet wrote:

Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant?

Thank you

Albert

Cardet Law, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

landten mailing list
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http://mailman.fsr.com/mailman/listinfo/landten http://mailman.fsr.com/mailman/listinfo/landten

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If a business operates without an attorney or the advice of an attorney, then the business owner is asking for the worse outcome possible.
I don’t understand why landlords don’t think they are in business.  If they don’t get an attorney to do their leases, notice and evictions than they typically get the same type of results as someone that does their own divorce.  AS they say in the commercial, you can pay me now or you can pay me later.  Usually paying me later amounts to more money out of the landlord’s pocket.  Harry probably doesn’t see what we see. He has most if not all his landlord clients trained so he doesn’t see some of the deceitful landlords out there, he mostly sees the ones that he deals with that are in, most case if not all, above board.  I bet he hasn’t dealt with a landlord that has so poorly maintained a rental dwelling to the point that a tenant falls through a kitchen floor because it was so rotted it wouldn’t hold her and the plywood patch didn’t hold.  And I bet he would not advise his client to evict just because the tenant wanted to make a claim for medical bills for her broken leg, which is exactly what happened.  And I would guess that Harry would be astounded that that tenant, unlike the landlord, sought legal advice and found a personal injury lawyer that was willing to take her case and astonishingly the tenant not only got her medical bills paid, she got a lot more as well as her attorney.  (I can see the landlord now saying why didn’t I just pay her medical bill or make a claim on my insurance).  If the landlord is so old that he or she can’t take care of the property than they should sell it and live off the proceeds. I can go on with dozens of cases like that.

As far as suing when there is no damage, next time you get stopped for running a stop sign see what happens when you tell the cop that no one was injured.  Just because the landlord turns off the water in a self-help eviction and the tenant get the water back on one hour later does that diminish the wrong?  Am I a real dirt bag when I not only get the tenant 3 times the rent but a fee with a multiplier?  How about that landlord who took the tenant’s security deposit and wanted a second security deposit to renew the lease only to find out that the landlord had spent it and when someone like me takes that landlord to court to have the judge order the landlord to put her security deposit back in the bank (by court order) to find out three years later when the tenant vacated that the landlord removed the court ordered security deposit from the bank three months after he was ordered to put it back in the bank.  Maybe I was too soft on my fees the first time because he could now afford to hire Akerman to fight tooth and nail to keep the security deposit.  Maybe if I was awarded a contingent fee multiplier the first time the landlord would have thought twice about stealing the tenants security deposit.  I was taught that stealing is stealing and it any better because the person you stole from doesn’t know it.  The only way to get landlord’s worried about stealing tenant’s security deposit is by making it costly when he does regardless if he puts it back after he stole it.    Other states have double and triple damages for unfairly holding a security deposit.  And some states think that the landlords have such an unfair advantage over tenants that they propose legislation to provide lawyers for tenants at housing court. (Harry don’t faint).

The fact is tenants are underrepresented, the bar has a procedure call contingent fee multiplier to try to even the playing field in underrepresented areas of law by enticing more lawyers to litigate those cases by offering more money and a few lawyers have attempted to take advantage of that procedure but evidently not enough because tenants continue to be under represented in the courts.

Just my two and a half cents with a 2.0 multiplier.

Leonard P. Cabral, Esq.
leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 6:39 PM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Mr. Heist,

That is certainly one way of looking at it. But I respectfully disagree. There is a reason that the majority, if not all, of attorneys on this listserv primarily (if not almost exclusively) represent landlords. Tenants do not provide recyclable business, more typically cannot afford attorneys, and taking any case on a contingency basis is an extremely risky proposition no matter how solid the case is (especially when there are no insurance companies involved!). Also, by and large, higher judgments only result when the landlord decides to fight the case to trial. I reject the vast majority of tenant cases that come my way and take them on a contingency, and you better believe that they are not frivolous when I undertake that risk.

Both sides deserve the same level of competent representation, and multipliers incentivize attorneys to take cases that would otherwise result in the tenant being left unrepresented. And incidentally, multipliers are still very difficult to obtain, but in my view are absolutely warranted. It is in fact far more likely that the tenant's attorney will have his/her fees significantly reduced, even where reasonable time is expended.

With the extent of discourse the legal community is currently having regarding providing greater access to civil justice for our indigent and lower class citizens, we need to realize that throwing more money and pro bono work at the problem, while helpful, does not solve the issue of underrepresentation, and is merely a bandaid. Private attorneys must be incentivized to help tenants. Ask yourself: do you take contested landlord cases on a contingency? Why not? How would you manage your overhead while your cases were pending? A bird in the hand is two in the bush, especially when there are no guarantees that you will even make a recovery at all.

Although there are many good landlords out there, you better believe that there are plenty of bad ones as well who maliciously exploit their positions of power. Removing attorney's fees from the statute would be in complete disregard of Floridians' fundamental right to access to the justice system, and will only serve to widen the deplorable civil justice gap.

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.

On 2016-07-25 17:38, Harry Heist wrote:
When I see attorneys filing cases solely for the purposes of getting an attorney's fee award when their client was not damaged in any way shape or form, it makes me ashamed to be an attorney.

Someday I would like to see the attorney's fee provision revisited in landlord/tenant law. A number of attorneys are making their living off of awards exceeding $10,000 against small, sometimes elderly  landlords who file pro se eviction cases with minor defects using Supreme Court approved forms. Often multipliers are awarded.  If the Bar is  going to encourage pro se filings "to make access to the courts affordable and easier to the pro se filer" there should be some duty on the courts to give some guidance to the pro se filer. I was speaking with a judge in a smaller county and told him about the multipliers that were being awarded in some counties. He was astounded and thought that was absurd.  I agree.

Harry

LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Todd Allen
Sent: Monday, July 25, 2016 5:22 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

I generally do not file 57.105 motions, but I can't imagine there being a better case.
Todd B. Allen, Esq.  |  Attorney

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On Jul 25, 2016, at 5:16 PM, Leonard Cabral <LensLaw@Lenslaw.commailto:LensLaw@lenslaw.com> wrote:

I agree with Joseph but I wonder if you think the outcome would be different if the landlord could show that at all times during the tenancy the funds in the account where the money was comingled never went below the amount of the security deposit. (assuming that it stayed there until it was proper to remove).

Also I was surprised that the definition of theft only requires someone to temporarily deprive the use of their property.

Florida Statute §812.0145(1)(c)1 (1), a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property and (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 4:28 PM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Yes.
First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims.
Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).
Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.)
Just my two cents.

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.comhttp://www.joehugheslaw.com/

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On 2016-07-25 15:31, Alberto Cardet wrote:
Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant?

Thank you

Albert

Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783

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