Empathy List Archives

LO

Lew Oliver

Thu, Jul 9, 2015 5:38 PM

To All:

I have a case where a residential Tenant has retained me in a fight over the
deposit. The Tenant caused a fair amount of damage for which he is liable,
and also failed to give proper notice of departure and failed to pay rent,
so the landlord probably has a pretty good claim on the deposit. The
Landlord also followed all the proper notification requirements for the
claim on the deposit. However, there is ALSO evidence that the although the
landlord did keep the deposit in a separate account, the Landlord did NOT
notify the Tenant in writing of that separate account as required by FS
83.49(2).

The question therefore is: even though the Landlord appears to have
legitimate claims on the deposit, does the Landlord nonetheless have to
return the entire deposit because of failure to comply with 83.49(2)?

Yes I know that the Landlord may still SUE the tenant for the damages, etc.,
but the Tenant does not believe the Landlord will bother to do so.

Thanks!

Lewis M. Oliver III, Esq. ("Lew")

Florida Bar Member # 0462284

Member of the Florida Bar Since 1985

Quiñones & Oliver, P.L.

11513 Lake Underhill Rd, Ste A

Orlando, FL 32825

Phone: (407) 249-5050

Fax: (407) 249-5008

Offices also in Downtown Kissimmee at:

24 N. Clyde Avenue

Kissimmee, FL 34741

NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with
IRS Circular 230, we must inform you that any U.S. tax advice contained in
this transmission and any attachments hereto is not intended or written to
be used and may not be used by any person for the purpose of (i) avoiding
any penalty that may be imposed by the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any tax-related

matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b)
confidential, and (c) intended only for the use of the individual or entity
to which it is addressed. If the addressee is a client, this communication
is also subject to applicable privileges. If you are not the addressee, or
the employee or agent responsible for the delivery to the addressee, any
dissemination, distribution or copying of this communication is prohibited.
If you received this communication in error: (a) any dissemination,
distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L.,
requests that you immediately notify us at (407) 249-5050, (collect) and
destroy this communication. Thank you.

To All: I have a case where a residential Tenant has retained me in a fight over the deposit. The Tenant caused a fair amount of damage for which he is liable, and also failed to give proper notice of departure and failed to pay rent, so the landlord probably has a pretty good claim on the deposit. The Landlord also followed all the proper notification requirements for the claim on the deposit. However, there is ALSO evidence that the although the landlord did keep the deposit in a separate account, the Landlord did NOT notify the Tenant in writing of that separate account as required by FS 83.49(2). The question therefore is: even though the Landlord appears to have legitimate claims on the deposit, does the Landlord nonetheless have to return the entire deposit because of failure to comply with 83.49(2)? Yes I know that the Landlord may still SUE the tenant for the damages, etc., but the Tenant does not believe the Landlord will bother to do so. Thanks! Lewis M. Oliver III, Esq. ("Lew") Florida Bar Member # 0462284 Member of the Florida Bar Since 1985 Quiñones & Oliver, P.L. 11513 Lake Underhill Rd, Ste A Orlando, FL 32825 Phone: (407) 249-5050 Fax: (407) 249-5008 Offices also in Downtown Kissimmee at: 24 N. Clyde Avenue Kissimmee, FL 34741 NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L., requests that you immediately notify us at (407) 249-5050, (collect) and destroy this communication. Thank you.

LC

Leonard Cabral

Fri, Jul 10, 2015 9:19 PM

The statute is silent as to any penalty for failure to do any of the requirements 83.49 with the exception of Certified mail notice to tenant of intent to withhold securitydeposit. Personally, I usually only go after landlord if the landlord fails to give proper notice AND/OR none of the tenant's security deposit money was not put in any account or at some point during the tenancy the money disappeared. If I had to argue your position I would state the statute is silent on any waiver or penalty and that my client substantially complied with the intent of the statute. Although it most likely depend on the judge and the case. If it looks like the landlord is just making up claims above normal wear and the judge want to punish a greedy landlord I could see the judge ruling the statue is "strictly construed" and rule waiver.
Leonard P. Cabral
Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lew Oliver
Sent: Thursday, July 09, 2015 1:38 PM
To: landten@lists.flabarrpptl.org
Cc: 'Leslie Zimmerly'
Subject: [RPPTL LandTen] Some Advice on Consequences of Failure by Landlord To Provide NOTICE of Deposit in Separate Account? Lloyd Granet Referred Me!

To All:

I have a case where a residential Tenant has retained me in a fight over the deposit. The Tenant caused a fair amount of damage for which he is liable, and also failed to give proper notice of departure and failed to pay rent, so the landlord probably has a pretty good claim on the deposit. The Landlord also followed all the proper notification requirements for the claim on the deposit. However, there is ALSO evidence that the although the landlord did keep the deposit in a separate account, the Landlord did NOT notify the Tenant in writing of that separate account as required by FS 83.49(2).

The question therefore is: even though the Landlord appears to have legitimate claims on the deposit, does the Landlord nonetheless have to return the entire deposit because of failure to comply with 83.49(2)?

Yes I know that the Landlord may still SUE the tenant for the damages, etc., but the Tenant does not believe the Landlord will bother to do so.

Thanks!

Lewis M. Oliver III, Esq. ("Lew")
Florida Bar Member # 0462284
Member of the Florida Bar Since 1985

Quiñones & Oliver, P.L.
11513 Lake Underhill Rd, Ste A
Orlando, FL 32825
Phone: (407) 249-5050
Fax: (407) 249-5008

Offices also in Downtown Kissimmee at:
24 N. Clyde Avenue
Kissimmee, FL 34741

NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related
matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L., requests that you immediately notify us at (407) 249-5050, (collect) and destroy this communication. Thank you.

The statute is silent as to any penalty for failure to do any of the requirements 83.49 with the exception of Certified mail notice to tenant of intent to withhold securitydeposit. Personally, I usually only go after landlord if the landlord fails to give proper notice AND/OR none of the tenant's security deposit money was not put in any account or at some point during the tenancy the money disappeared. If I had to argue your position I would state the statute is silent on any waiver or penalty and that my client substantially complied with the intent of the statute. Although it most likely depend on the judge and the case. If it looks like the landlord is just making up claims above normal wear and the judge want to punish a greedy landlord I could see the judge ruling the statue is "strictly construed" and rule waiver. Leonard P. Cabral Leonardcabral@lenslaw.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lew Oliver Sent: Thursday, July 09, 2015 1:38 PM To: landten@lists.flabarrpptl.org Cc: 'Leslie Zimmerly' Subject: [RPPTL LandTen] Some Advice on Consequences of Failure by Landlord To Provide NOTICE of Deposit in Separate Account? Lloyd Granet Referred Me! To All: I have a case where a residential Tenant has retained me in a fight over the deposit. The Tenant caused a fair amount of damage for which he is liable, and also failed to give proper notice of departure and failed to pay rent, so the landlord probably has a pretty good claim on the deposit. The Landlord also followed all the proper notification requirements for the claim on the deposit. However, there is ALSO evidence that the although the landlord did keep the deposit in a separate account, the Landlord did NOT notify the Tenant in writing of that separate account as required by FS 83.49(2). The question therefore is: even though the Landlord appears to have legitimate claims on the deposit, does the Landlord nonetheless have to return the entire deposit because of failure to comply with 83.49(2)? Yes I know that the Landlord may still SUE the tenant for the damages, etc., but the Tenant does not believe the Landlord will bother to do so. Thanks! Lewis M. Oliver III, Esq. ("Lew") Florida Bar Member # 0462284 Member of the Florida Bar Since 1985 Quiñones & Oliver, P.L. 11513 Lake Underhill Rd, Ste A Orlando, FL 32825 Phone: (407) 249-5050 Fax: (407) 249-5008 Offices also in Downtown Kissimmee at: 24 N. Clyde Avenue Kissimmee, FL 34741 NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L., requests that you immediately notify us at (407) 249-5050, (collect) and destroy this communication. Thank you.

LO

Lew Oliver

Fri, Jul 10, 2015 9:28 PM

thanks that is helpful. The landlord frankly has a pretty decent case, did
notify the tenant within 30 days by certified mail of intent to hold the
deposit, the tenant clearly did stuff she wasn't supposed to do, and the
landlord did produce proof of a separate account for the deposit but has not
been able to demonstrate that the Landlord NOTIFIED the tenant that the
money was in a separate account. It's a thin argument. I looked everywhere
but could not determine any SANCTION for failure to provide the required
notice at the beginning of the lease that the money was in a separate
account. It's kind of silly to have a requirement with no sanctions, but
that appears to be the case

Lewis M. Oliver III, Esq. ("Lew")

Florida Bar Member # 0462284

Member of the Florida Bar Since 1985

Quiñones & Oliver, P.L.

11513 Lake Underhill Rd, Ste A

Orlando, FL 32825

Phone: (407) 249-5050

Fax: (407) 249-5008

Offices also in Downtown Kissimmee at:

24 N. Clyde Avenue

Kissimmee, FL 34741

NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with
IRS Circular 230, we must inform you that any U.S. tax advice contained in
this transmission and any attachments hereto is not intended or written to
be used and may not be used by any person for the purpose of (i) avoiding
any penalty that may be imposed by the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any tax-related

matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b)
confidential, and (c) intended only for the use of the individual or entity
to which it is addressed. If the addressee is a client, this communication
is also subject to applicable privileges. If you are not the addressee, or
the employee or agent responsible for the delivery to the addressee, any
dissemination, distribution or copying of this communication is prohibited.
If you received this communication in error: (a) any dissemination,
distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L.,
requests that you immediately notify us at (407) 249-5050, (collect) and
destroy this communication. Thank you.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, July 10, 2015 5:20 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Some Advice on Consequences of Failure by
Landlord To Provide NOTICE of Deposit in Separate Account? Lloyd Granet
Referred Me!

The statute is silent as to any penalty for failure to do any of the
requirements 83.49 with the exception of Certified mail notice to tenant of
intent to withhold securitydeposit. Personally, I usually only go after
landlord if the landlord fails to give proper notice AND/OR none of the
tenants security deposit money was not put in any account or at some point
during the tenancy the money disappeared. If I had to argue your position I
would state the statute is silent on any waiver or penalty and that my
client substantially complied with the intent of the statute. Although it
most likely depend on the judge and the case. If it looks like the landlord
is just making up claims above normal wear and the judge want to punish a
greedy landlord I could see the judge ruling the statue is strictly
construed and rule waiver.

Leonard P. Cabral

Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lew Oliver
Sent: Thursday, July 09, 2015 1:38 PM
To: landten@lists.flabarrpptl.org
Cc: 'Leslie Zimmerly'
Subject: [RPPTL LandTen] Some Advice on Consequences of Failure by Landlord
To Provide NOTICE of Deposit in Separate Account? Lloyd Granet Referred Me!

To All:

I have a case where a residential Tenant has retained me in a fight over the
deposit. The Tenant caused a fair amount of damage for which he is liable,
and also failed to give proper notice of departure and failed to pay rent,
so the landlord probably has a pretty good claim on the deposit. The
Landlord also followed all the proper notification requirements for the
claim on the deposit. However, there is ALSO evidence that the although the
landlord did keep the deposit in a separate account, the Landlord did NOT
notify the Tenant in writing of that separate account as required by FS
83.49(2).

The question therefore is: even though the Landlord appears to have
legitimate claims on the deposit, does the Landlord nonetheless have to
return the entire deposit because of failure to comply with 83.49(2)?

Yes I know that the Landlord may still SUE the tenant for the damages, etc.,
but the Tenant does not believe the Landlord will bother to do so.

Thanks!

Lewis M. Oliver III, Esq. ("Lew")

Florida Bar Member # 0462284

Member of the Florida Bar Since 1985

Quiñones & Oliver, P.L.

11513 Lake Underhill Rd, Ste A

Orlando, FL 32825

Phone: (407) 249-5050

Fax: (407) 249-5008

Offices also in Downtown Kissimmee at:

24 N. Clyde Avenue

Kissimmee, FL 34741

NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with
IRS Circular 230, we must inform you that any U.S. tax advice contained in
this transmission and any attachments hereto is not intended or written to
be used and may not be used by any person for the purpose of (i) avoiding
any penalty that may be imposed by the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any tax-related

matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b)
confidential, and (c) intended only for the use of the individual or entity
to which it is addressed. If the addressee is a client, this communication
is also subject to applicable privileges. If you are not the addressee, or
the employee or agent responsible for the delivery to the addressee, any
dissemination, distribution or copying of this communication is prohibited.
If you received this communication in error: (a) any dissemination,
distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L.,
requests that you immediately notify us at (407) 249-5050, (collect) and
destroy this communication. Thank you.

thanks that is helpful. The landlord frankly has a pretty decent case, did notify the tenant within 30 days by certified mail of intent to hold the deposit, the tenant clearly did stuff she wasn't supposed to do, and the landlord did produce proof of a separate account for the deposit but has not been able to demonstrate that the Landlord NOTIFIED the tenant that the money was in a separate account. It's a thin argument. I looked everywhere but could not determine any SANCTION for failure to provide the required notice at the beginning of the lease that the money was in a separate account. It's kind of silly to have a requirement with no sanctions, but that appears to be the case Lewis M. Oliver III, Esq. ("Lew") Florida Bar Member # 0462284 Member of the Florida Bar Since 1985 Quiñones & Oliver, P.L. 11513 Lake Underhill Rd, Ste A Orlando, FL 32825 Phone: (407) 249-5050 Fax: (407) 249-5008 Offices also in Downtown Kissimmee at: 24 N. Clyde Avenue Kissimmee, FL 34741 NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L., requests that you immediately notify us at (407) 249-5050, (collect) and destroy this communication. Thank you. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral Sent: Friday, July 10, 2015 5:20 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Some Advice on Consequences of Failure by Landlord To Provide NOTICE of Deposit in Separate Account? Lloyd Granet Referred Me! The statute is silent as to any penalty for failure to do any of the requirements 83.49 with the exception of Certified mail notice to tenant of intent to withhold securitydeposit. Personally, I usually only go after landlord if the landlord fails to give proper notice AND/OR none of the tenants security deposit money was not put in any account or at some point during the tenancy the money disappeared. If I had to argue your position I would state the statute is silent on any waiver or penalty and that my client substantially complied with the intent of the statute. Although it most likely depend on the judge and the case. If it looks like the landlord is just making up claims above normal wear and the judge want to punish a greedy landlord I could see the judge ruling the statue is strictly construed and rule waiver. Leonard P. Cabral Leonardcabral@lenslaw.com From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lew Oliver Sent: Thursday, July 09, 2015 1:38 PM To: landten@lists.flabarrpptl.org Cc: 'Leslie Zimmerly' Subject: [RPPTL LandTen] Some Advice on Consequences of Failure by Landlord To Provide NOTICE of Deposit in Separate Account? Lloyd Granet Referred Me! To All: I have a case where a residential Tenant has retained me in a fight over the deposit. The Tenant caused a fair amount of damage for which he is liable, and also failed to give proper notice of departure and failed to pay rent, so the landlord probably has a pretty good claim on the deposit. The Landlord also followed all the proper notification requirements for the claim on the deposit. However, there is ALSO evidence that the although the landlord did keep the deposit in a separate account, the Landlord did NOT notify the Tenant in writing of that separate account as required by FS 83.49(2). The question therefore is: even though the Landlord appears to have legitimate claims on the deposit, does the Landlord nonetheless have to return the entire deposit because of failure to comply with 83.49(2)? Yes I know that the Landlord may still SUE the tenant for the damages, etc., but the Tenant does not believe the Landlord will bother to do so. Thanks! Lewis M. Oliver III, Esq. ("Lew") Florida Bar Member # 0462284 Member of the Florida Bar Since 1985 Quiñones & Oliver, P.L. 11513 Lake Underhill Rd, Ste A Orlando, FL 32825 Phone: (407) 249-5050 Fax: (407) 249-5008 Offices also in Downtown Kissimmee at: 24 N. Clyde Avenue Kissimmee, FL 34741 NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Quiñones & Oliver, P.L., requests that you immediately notify us at (407) 249-5050, (collect) and destroy this communication. Thank you.