Empathy List Archives

HH

Harry Heist

Fri, Apr 10, 2015 8:17 PM

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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 <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

JM

Jeff Mazor

Fri, Apr 10, 2015 8:33 PM

Doesn't even matter if tenant never receives the notice, especially if he avoids it. Only requires that landlord mail it.

The statute does not say that the tenant has to receive the notice. I don't see any way to construe the word. Give me anything other than to send. Tenants can be very good at avoiding receipt, but that does not defeat what otherwise would be compliance by the landlord.

See, for example, Woodworth versus Smith, 773 S. second 1170, as well as OTEMAN at 757 S. second, 1261 and L & F partners at 561 S. second, 1227. Generally, they stand for the proposition that words such as "evidenced by return receipt" are not intended to require a signed receipt, but only to define the type of service, which must be used under a statute. They also stand for the proposition that the failure of the landlord to comply with the statutory requirements may be excused when the record shows that the party to be served is deliberately refusing to accept delivery.

Sorry about the weird typing, but I'm using Dragon and it's not done training me.

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Friday, April 10, 2015 4:18 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit.

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.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

Doesn't even matter if tenant never receives the notice, especially if he avoids it. Only requires that landlord mail it. The statute does not say that the tenant has to receive the notice. I don't see any way to construe the word. Give me anything other than to send. Tenants can be very good at avoiding receipt, but that does not defeat what otherwise would be compliance by the landlord. See, for example, Woodworth versus Smith, 773 S. second 1170, as well as OTEMAN at 757 S. second, 1261 and L & F partners at 561 S. second, 1227. Generally, they stand for the proposition that words such as "evidenced by return receipt" are not intended to require a signed receipt, but only to define the type of service, which must be used under a statute. They also stand for the proposition that the failure of the landlord to comply with the statutory requirements may be excused when the record shows that the party to be served is deliberately refusing to accept delivery. Sorry about the weird typing, but I'm using Dragon and it's not done training me. -----Original Message----- From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist Sent: Friday, April 10, 2015 4:18 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] 83.49 issue Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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.com <http://www.evict.com/> Email: harry@evict.com <mailto:harry@evict.com> <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

CS

Cary Sabol

Fri, Apr 10, 2015 8:43 PM

I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents.
Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Harry Heist harry@evict.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Friday, April 10, 2015 4:17 PM
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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.com
Email: harry@evict.com
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Visit us on Facebook |

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THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

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

I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents. Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. From: Harry Heist <harry@evict.com> To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.org> Sent: Friday, April 10, 2015 4:17 PM Subject: [RPPTL LandTen] 83.49 issue Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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.com Email: harry@evict.com | | | Visit us on Facebook | | | | | THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

LC

Leonard Cabral

Fri, Apr 10, 2015 9:56 PM

From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely. In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”. MY 3 cents. Anyone want to up it to 4?
Can I ask who is the lawyer?

Leonard P. Cabral, Esq.
Leonardcabral@lenslaw.com
Please disregard inadvertent misspellings and the use of abbreviations.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, April 10, 2015 4:44 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents.

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

From: Harry Heist <harry@evict.com mailto:harry@evict.com>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org>
Sent: Friday, April 10, 2015 4:17 PM
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit.

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.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com
[cid:image001.png@01D073B7.64A29390]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

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

From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely. In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”. MY 3 cents. Anyone want to up it to 4? Can I ask who is the lawyer? Leonard P. Cabral, Esq. Leonardcabral@lenslaw.com Please disregard inadvertent misspellings and the use of abbreviations. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, April 10, 2015 4:44 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] 83.49 issue I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents. Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. ________________________________ From: Harry Heist <harry@evict.com<mailto:harry@evict.com>> To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org>> Sent: Friday, April 10, 2015 4:17 PM Subject: [RPPTL LandTen] 83.49 issue Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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.com<http://www.evict.com/> Email: harry@evict.com<mailto:harry@evict.com> [cid:image001.png@01D073B7.64A29390]<https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten

LC

Leonard Cabral

Fri, Apr 10, 2015 9:59 PM

Good luck with Dragon. I finally gave up.

Leonard P. Cabral, Esq.
Leonardcabral@lenslaw.com
Please disregard inadvertent misspellings and the use of abbreviations.

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Friday, April 10, 2015 4:33 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] 83.49 issue

Doesn't even matter if tenant never receives the notice, especially if he avoids it. Only requires that landlord mail it.

The statute does not say that the tenant has to receive the notice. I don't see any way to construe the word. Give me anything other than to send. Tenants can be very good at avoiding receipt, but that does not defeat what otherwise would be compliance by the landlord.

See, for example, Woodworth versus Smith, 773 S. second 1170, as well as OTEMAN at 757 S. second, 1261 and L & F partners at 561 S. second, 1227. Generally, they stand for the proposition that words such as "evidenced by return receipt" are not intended to require a signed receipt, but only to define the type of service, which must be used under a statute. They also stand for the proposition that the failure of the landlord to comply with the statutory requirements may be excused when the record shows that the party to be served is deliberately refusing to accept delivery.

Sorry about the weird typing, but I'm using Dragon and it's not done training me.

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Friday, April 10, 2015 4:18 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit.

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.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

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

Good luck with Dragon. I finally gave up. Leonard P. Cabral, Esq. Leonardcabral@lenslaw.com Please disregard inadvertent misspellings and the use of abbreviations. -----Original Message----- From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor Sent: Friday, April 10, 2015 4:33 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] 83.49 issue Doesn't even matter if tenant never receives the notice, especially if he avoids it. Only requires that landlord mail it. The statute does not say that the tenant has to receive the notice. I don't see any way to construe the word. Give me anything other than to send. Tenants can be very good at avoiding receipt, but that does not defeat what otherwise would be compliance by the landlord. See, for example, Woodworth versus Smith, 773 S. second 1170, as well as OTEMAN at 757 S. second, 1261 and L & F partners at 561 S. second, 1227. Generally, they stand for the proposition that words such as "evidenced by return receipt" are not intended to require a signed receipt, but only to define the type of service, which must be used under a statute. They also stand for the proposition that the failure of the landlord to comply with the statutory requirements may be excused when the record shows that the party to be served is deliberately refusing to accept delivery. Sorry about the weird typing, but I'm using Dragon and it's not done training me. -----Original Message----- From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist Sent: Friday, April 10, 2015 4:18 PM To: 'RPPTL Landlord Tenant Committee' Subject: [RPPTL LandTen] 83.49 issue Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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.com <http://www.evict.com/> Email: harry@evict.com <mailto:harry@evict.com> <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

L

lesstevens

Fri, Apr 10, 2015 10:02 PM

This dove-tails into a question I asked back in February, but did not get any response from my listserve shout-out:

Landlord and 2 Tenants enter into a standard 12 month Lease with 1 security deposit. At the end of the 12 months 1 tenant moves out but the other stays on in a month-to-month tenancy…3 months later, the 2nd tenant under the lease moves out…Landlord send notice to both tenants of intent to impose claim after the 2nd tenant moves out…..

  Since there is only 1 security deposit pursuant to the Lease, does the Landlord’s obligation to provide notice of intent to impose a claim delayed until the latter of all tenants under the original lease move;

  If Tenants (both) file objection to the Notice (the 1st on the basis of untimeliness, the 2nd based on objecting to the damage claim), who is responsible for the institution of a suit to resolve? Must a Landlord file the suit or can he wait for the tenant(s) to file…..and for how long does he have to hold the money if LL is not obligated to file suit.

Seems like an everyday occurrence, but thought I’d confirm the consensus of the group.

Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
Fax - (561) 989-8484
E-Mail - lesstevens@earthlink.net

OUR OFFICE NO LONGER ACCEPTS CASHIER'S OR BANK CHECKS AT CLOSING. ALL FUNDS MUST BE RECEIVED IN THE FORM OF A SAME DAY WIRE TRANSFER ONLY (NO ACH TRANSFERS).

THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE IMMEDIATELY

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, April 10, 2015 5:57 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely. In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”. MY 3 cents. Anyone want to up it to 4?

Can I ask who is the lawyer?

Leonard P. Cabral, Esq.

Leonardcabral@lenslaw.com

Please disregard inadvertent misspellings and the use of abbreviations.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, April 10, 2015 4:44 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents.

Cary

Law Offices of Cary P. Sabol

P.O. Box 15981 | West Palm Beach | Florida | 33416

Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

From: Harry Heist harry@evict.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Friday, April 10, 2015 4:17 PM
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

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

This dove-tails into a question I asked back in February, but did not get any response from my listserve shout-out: Landlord and 2 Tenants enter into a standard 12 month Lease with 1 security deposit. At the end of the 12 months 1 tenant moves out but the other stays on in a month-to-month tenancy…3 months later, the 2nd tenant under the lease moves out…Landlord send notice to both tenants of intent to impose claim after the 2nd tenant moves out….. 1. Since there is only 1 security deposit pursuant to the Lease, does the Landlord’s obligation to provide notice of intent to impose a claim delayed until the latter of all tenants under the original lease move; 2. If Tenants (both) file objection to the Notice (the 1st on the basis of untimeliness, the 2nd based on objecting to the damage claim), who is responsible for the institution of a suit to resolve? Must a Landlord file the suit or can he wait for the tenant(s) to file…..and for how long does he have to hold the money if LL is not obligated to file suit. Seems like an everyday occurrence, but thought I’d confirm the consensus of the group. Les H. Stevens, Esquire Les H. Stevens, P.A. 5301 North Federal Highway Suite 130 Boca Raton, Florida 33487 Tel. - (561) 989-9797 Fax - (561) 989-8484 E-Mail - lesstevens@earthlink.net ________________________________________________________________________________________ OUR OFFICE NO LONGER ACCEPTS CASHIER'S OR BANK CHECKS AT CLOSING. ALL FUNDS MUST BE RECEIVED IN THE FORM OF A SAME DAY WIRE TRANSFER ONLY (NO ACH TRANSFERS). THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE IMMEDIATELY From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral Sent: Friday, April 10, 2015 5:57 PM To: Cary Sabol; RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] 83.49 issue >From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely. In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”. MY 3 cents. Anyone want to up it to 4? Can I ask who is the lawyer? Leonard P. Cabral, Esq. Leonardcabral@lenslaw.com Please disregard inadvertent misspellings and the use of abbreviations. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, April 10, 2015 4:44 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] 83.49 issue I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents. Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 _____ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. _____ From: Harry Heist <harry@evict.com> To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.org> Sent: Friday, April 10, 2015 4:17 PM Subject: [RPPTL LandTen] 83.49 issue Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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 <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten

LC

Leonard Cabral

Fri, Apr 10, 2015 11:08 PM

Here is a penny for my thoughts.

  In your example, there are too many variables.  Does the lease state that the tenancy continues as a month to month?  Then the notice would be required after the last tenant vacates. (my opinion only).  If the tenant gave notice that he/she was vacating at end of the term of the lease then a new month to month lease would have been established with the remaining tenant. In this situation I haven’t a clue what a judge would do and I don’t know what I would do because I would turn down the case as it is too messy.   In my opinion the best option would be for the landlord to file an interpleader.  It is not likely the landlord will get sued by either of the two tenants because the filing fee is usually more than the tenants can afford  to pay up front.

  I take a strong stance that the landlord must hold the deposit until a suit is filed by either party for the court to resolve the dispute.  I have even diagramed the sentence structure on the statute to prove that is what the statute states.  It will depends on who wants the money more on who files.

  In most cases (except apartment complexes with established management companies) the security deposit never make it to a bank or is long gone before the tenant moves out.  When the tenant disputes the claim against the security deposit the landlord just states “I don’t agree with your dispute” and confiscates the security deposit (until he/she is sued).

An example: Tenant rent a dwelling and give a $1k security deposit to Landlord. During the tenancy the Landlord sells rental property. New landlord demands a $1k security deposit from the same tenant. Tenant seek my assistance. I sue landlord and new landlord. Court orders that $1k be placed in a Florida banking institution as the tenant’s security deposit within 10 days. $1k was deposited in a bank by New landlord. Three years later the same client/tenant comes to me because her landlord would not return her security deposit. I sued and in discovery I find that the $1k ordered by the court was withdrawn by the new landlord 3 months after the court’s order. (the tenant’s security deposit was gone in 90 days and account closed). This is not an isolated case. Typically I find through discovery that either the money was never put in an account or the money was spent during the tenancy. In my last security deposit case the landlord admitted that the deposit was place in her safe during the tenancy. This happen with mostly with mom and pop landlords, slumlords and some property managers who couldn’t spell property manger 6 months ago and now “I are one”.

Leonard P. Cabral, Esq.
Leonardcabral@lenslaw.com
Please disregard inadvertent misspellings and the use of abbreviations.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens
Sent: Friday, April 10, 2015 6:03 PM
To: 'RPPTL Landlord Tenant Committee'; 'Cary Sabol'
Subject: Re: [RPPTL LandTen] 83.49 issue

This dove-tails into a question I asked back in February, but did not get any response from my listserve shout-out:

Landlord and 2 Tenants enter into a standard 12 month Lease with 1 security deposit. At the end of the 12 months 1 tenant moves out but the other stays on in a month-to-month tenancy…3 months later, the 2nd tenant under the lease moves out…Landlord send notice to both tenants of intent to impose claim after the 2nd tenant moves out…..

  Since there is only 1 security deposit pursuant to the Lease, does the Landlord’s obligation to provide notice of intent to impose a claim delayed until the latter of all tenants under the original lease move;

  If Tenants (both) file objection to the Notice (the 1st on the basis of untimeliness, the 2nd based on objecting to the damage claim), who is responsible for the institution of a suit to resolve? Must a Landlord file the suit or can he wait for the tenant(s) to file…..and for how long does he have to hold the money if LL is not obligated to file suit.

Seems like an everyday occurrence, but thought I’d confirm the consensus of the group.

Les H. Stevens, Esquire
Les H. Stevens, P.A.
5301 North Federal Highway
Suite 130
Boca Raton, Florida 33487
Tel. - (561) 989-9797
Fax - (561) 989-8484
E-Mail - lesstevens@earthlink.net mailto:lesstevens@earthlink.net

OUR OFFICE NO LONGER ACCEPTS CASHIER'S OR BANK CHECKS AT CLOSING. ALL FUNDS MUST BE RECEIVED IN THE FORM OF A SAME DAY WIRE TRANSFER ONLY (NO ACH TRANSFERS).

THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE IMMEDIATELY

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Friday, April 10, 2015 5:57 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely. In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”. MY 3 cents. Anyone want to up it to 4?
Can I ask who is the lawyer?

Leonard P. Cabral, Esq.
Leonardcabral@lenslaw.com mailto:Leonardcabral@lenslaw.com
Please disregard inadvertent misspellings and the use of abbreviations.

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, April 10, 2015 4:44 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] 83.49 issue

I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents.

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

From: Harry Heist <harry@evict.com mailto:harry@evict.com>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org>
Sent: Friday, April 10, 2015 4:17 PM
Subject: [RPPTL LandTen] 83.49 issue

Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE.

I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise.

Statute below, emphasis added.

The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit.

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.com http://www.evict.com/
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Here is a penny for my thoughts. 1. In your example, there are too many variables. Does the lease state that the tenancy continues as a month to month? Then the notice would be required after the last tenant vacates. (my opinion only). If the tenant gave notice that he/she was vacating at end of the term of the lease then a new month to month lease would have been established with the remaining tenant. In this situation I haven’t a clue what a judge would do and I don’t know what I would do because I would turn down the case as it is too messy. In my opinion the best option would be for the landlord to file an interpleader. It is not likely the landlord will get sued by either of the two tenants because the filing fee is usually more than the tenants can afford to pay up front. 2. I take a strong stance that the landlord must hold the deposit until a suit is filed by either party for the court to resolve the dispute. I have even diagramed the sentence structure on the statute to prove that is what the statute states. It will depends on who wants the money more on who files. 3. In most cases (except apartment complexes with established management companies) the security deposit never make it to a bank or is long gone before the tenant moves out. When the tenant disputes the claim against the security deposit the landlord just states “I don’t agree with your dispute” and confiscates the security deposit (until he/she is sued). An example: Tenant rent a dwelling and give a $1k security deposit to Landlord. During the tenancy the Landlord sells rental property. New landlord demands a $1k security deposit from the same tenant. Tenant seek my assistance. I sue landlord and new landlord. Court orders that $1k be placed in a Florida banking institution as the tenant’s security deposit within 10 days. $1k was deposited in a bank by New landlord. Three years later the same client/tenant comes to me because her landlord would not return her security deposit. I sued and in discovery I find that the $1k ordered by the court was withdrawn by the new landlord 3 months after the court’s order. (the tenant’s security deposit was gone in 90 days and account closed). This is not an isolated case. Typically I find through discovery that either the money was never put in an account or the money was spent during the tenancy. In my last security deposit case the landlord admitted that the deposit was place in her safe during the tenancy. This happen with mostly with mom and pop landlords, slumlords and some property managers who couldn’t spell property manger 6 months ago and now “I are one”. Leonard P. Cabral, Esq. Leonardcabral@lenslaw.com Please disregard inadvertent misspellings and the use of abbreviations. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of lesstevens Sent: Friday, April 10, 2015 6:03 PM To: 'RPPTL Landlord Tenant Committee'; 'Cary Sabol' Subject: Re: [RPPTL LandTen] 83.49 issue This dove-tails into a question I asked back in February, but did not get any response from my listserve shout-out: Landlord and 2 Tenants enter into a standard 12 month Lease with 1 security deposit. At the end of the 12 months 1 tenant moves out but the other stays on in a month-to-month tenancy…3 months later, the 2nd tenant under the lease moves out…Landlord send notice to both tenants of intent to impose claim after the 2nd tenant moves out….. 1. Since there is only 1 security deposit pursuant to the Lease, does the Landlord’s obligation to provide notice of intent to impose a claim delayed until the latter of all tenants under the original lease move; 2. If Tenants (both) file objection to the Notice (the 1st on the basis of untimeliness, the 2nd based on objecting to the damage claim), who is responsible for the institution of a suit to resolve? Must a Landlord file the suit or can he wait for the tenant(s) to file…..and for how long does he have to hold the money if LL is not obligated to file suit. Seems like an everyday occurrence, but thought I’d confirm the consensus of the group. Les H. Stevens, Esquire Les H. Stevens, P.A. 5301 North Federal Highway Suite 130 Boca Raton, Florida 33487 Tel. - (561) 989-9797 Fax - (561) 989-8484 E-Mail - lesstevens@earthlink.net<mailto:lesstevens@earthlink.net> ________________________________________________________________________________________ OUR OFFICE NO LONGER ACCEPTS CASHIER'S OR BANK CHECKS AT CLOSING. ALL FUNDS MUST BE RECEIVED IN THE FORM OF A SAME DAY WIRE TRANSFER ONLY (NO ACH TRANSFERS). THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND/OR OTHERWISE EXEMPT FROM DISCLOSURE. IF YOU HAVE RECEIVED THIS TRANSMITTAL IN ERROR, PLEASE DELETE IT AND NOTIFY THIS OFFICE IMMEDIATELY From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral Sent: Friday, April 10, 2015 5:57 PM To: Cary Sabol; RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] 83.49 issue From a tenant’s attorney. I only look at the postmark. If the postmark is within 30 days of the tenant’s vacating the rental dwelling the notice is timely. In my opinion a court cannot hold a landlord responsible for the time it takes the postal service to send a certified letter (the operative word in the statute is not just give but give by certified mail.). If the legislature wanted it to be received in 30 days it would have sated so or they could have written 29 days sent by “Express Next Day Certified Mail”. MY 3 cents. Anyone want to up it to 4? Can I ask who is the lawyer? Leonard P. Cabral, Esq. Leonardcabral@lenslaw.com<mailto:Leonardcabral@lenslaw.com> Please disregard inadvertent misspellings and the use of abbreviations. From: landten-bounces@lists.flabarrpptl.org<mailto:landten-bounces@lists.flabarrpptl.org> [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol Sent: Friday, April 10, 2015 4:44 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] 83.49 issue I believe it has to be mailed within the 30 days. Otherwise, the tenant could easily deny the letter or as is more common, refuse to give a new address, which would cause the landlord to be in violation of the notice requirement. I believe the case law is pretty clear that notice requirements only require sending the notice, not actual acceptance by the other party. My 2 cents. Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. ________________________________ From: Harry Heist <harry@evict.com<mailto:harry@evict.com>> To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org>> Sent: Friday, April 10, 2015 4:17 PM Subject: [RPPTL LandTen] 83.49 issue Do you feel the Notice of Intention to Impose Claim on Security Deposit must be “mailed” within 30 days or received by the tenant within 30 days. The operative word is GIVE. I feel it must be MAILED within the 30 days. I have an opposing attorney feeling otherwise. Statute below, emphasis added. 3) The landlord or the landlord's agent may disburse advance rents from the deposit account to the landlord's benefit when the advance rental period commences and without notice to the tenant. For all other deposits: (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 setoff against the deposit but may file an action for damages after return of the deposit. 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.com<http://www.evict.com/> Email: harry@evict.com<mailto:harry@evict.com> [cid:image001.png@01D073BA.8C8593A0]<https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> Visit us on Facebook THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten