In DUVALL vs. SUNSHINE STATE REALTY & ASSOCIATES, INC., a property manager drafted his own claim on security deposit form, instead of using a Florida Bar approved form, and then went on to represent himself at trial after the tenant hired a lawyer to sue him to recover the security deposit. Needless to say, it did not work out in favor of the property manager. If you really want to draft your own legal forms you have three choices: use a Florida Bar approved form, hire an attorney to prepare a form for you, become an attorney and prepare the form. Hint: a google search for “eviction attorney” produced “about 4,820,000 results in 0.37 seconds,” which is considerably faster than going to law school and getting admitted to the bar.
In DUVALL vs. SUNSHINE STATE REALTY & ASSOCIATES, INC., the tenant vacated at the end of her lease. Defendant property manager sent a claim on $800 out of the $1000 security deposit by certified mail 14 days after the tenant vacated. Tenant objected to the claim within 15 days.
The “Demand upon Security Deposit” was a hand written document on Sunshine State Realty & Associates Inc.’s stationary drafted by Richard C. Allen, the President thereof, a nonlawyer. The form was not the Supreme Court of Florida approved form required for use by nonlawyers and nonlawyer property managers. The “Demand upon Security Deposit” did not advise the tenant of her statutory right to object to the claim against her security deposit and that the objection must be in writing and must be sent within 15 days of receiving the notice of intention to impose a claim on security deposit.
Pursuant to Florida Statute 83.49(3)(a): [t]he notice [of intention to impose a claim on the deposit] 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. Fla. Stat. 83.49(3)(a), (emphasis added).
The statute is strictly construed. A Landlord forfeits the right to keep possession of the Tenant’s security deposit if the requirements of Florida Statute 83.49(3)(a) are not followed precisely. See: Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1984); Lockwood v Perry, 11 Fla. L. Weekly Supp. 704(a) (Hillsborough Co. Ct. Appellate, 2004); and Hick v Marchetti, 4 Fla. L. Weekly Supp. 525b (Charlotte Co. Ct. Appellate 1996). It is well established law if the landlord fails to send the notice required by Florida Statute 83.49(3)(a) the landlord forfeits its right to impose a claim against the Tenant’s security deposit. Similarly, if the notice required by Florida Statute 83.49(3)(a) does not substantially comply with the required statutory language the notice is defective and the landlord has not complied with the statute and the landlord forfeits any right to impose a claim against the Tenant’s security deposit.
Fundamentally the procedure requires the landlord to mail to the tenant a statutory notice of claim on the security deposit within 30 days of the tenant vacating the rental dwelling or the landlord forfeits his right to impose a claim upon the security deposit. If the tenant does not object to the landlord’s statutory notice of claim on the security deposit in writing within 15 days after receipt of the landlord’s notice, the landlord may deduct the amount of the claim from the tenant’s security deposit and return to the tenant the remaining deposit, if any. If the tenant timely objects to the claim on the security deposit, the landlord must keep the security deposit in the Florida banking institution where the security deposit is held and either the tenant or the landlord must file a lawsuit so that the court can resolve the dispute.
A non-lawyer property manager must use the Supreme Court of Florida approved form as set forth in In re Revisions To Simplified Forms Pursuant To Rule 10-2.1(a) of The Rules Regulating the Fla. Bar, 50 So.3d 503 (Fla., 2010) [35 Fla. L. Weekly S216a] and by failing to use the Florida approved form Sunshine State Realty & Associates, Inc. forfeited its right to impose a claim against the Tenant’s security deposit.
Therefore, SUNSHINE STATE’s “Demand upon Security Deposit” failed to meet the statutory requirement of Fla. Stat. 83,49(3)(a). A nonlawyer must use only Florida Supreme Court approved forms. In re Revisions to Simplified Forms Pursuant to Rule 10-2.1(a) of the Rules Regulating the Fla. Bar, 50 So.3d 503 (Fla. 2010) [35 Fla. L. Weekly S216a]. Pursuant to the Rules Regulating the Florida Bar 10-2.1(a), Unlicensed Practice of Law, non-lawyers may assist persons in filling out only those legal forms approved by the Florida Supreme Court. Some courts have determined that the mere modification of a form approved by the Florida Supreme Court for use by nonlawyers constitutes the unauthorized practice of law. See: The Florida Bar v Schramek, 616 So.2d 979, 984 (Fla.1993). The Florida Supreme Court has approved a Notice of Intent to Impose a Claim on a Security Deposit for use by a nonlawyer or nonlawyer property manager. Therefore a nonlawyer or a nonlawyer property manager must use the Florida Approved Notice of Intention to Impose Claim on Security Deposit (see pg. 2, n.1).
The court ordered the manager to return the entire security deposit and pay the tenant’s court costs and attorney’s fees.
DUVALL, vs. SUNSHINE STATE REALTY & ASSOCIATES, INC.. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2012 21898 CONS Division 78. February 27, 2013. 20 Fla. L. Weekly Supp. 624a.