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lockout The parties entered into a residential lease. Prior to moving in, the Plaintiffs (tenants) paid the Defendant (landlord) one-month’s rent. Pursuant to the agreement, the Plaintiffs were supposed to pay an additional sum prior to taking occupancy, $8,100.00 (comprising two-months’ additional rent and a security deposit). The day the Plaintiffs were to take occupancy, they showed up with only $5,400.00. The Defendant declined to allow occupancy.

The Court ruled that the Plaintiffs breached their agreement by not tendering the amount due under the lease.

Plaintiffs  claimed that they are, nevertheless,  entitled to a return of their deposit because the Defendant failed to provide the certified letter advising that he was imposing a claim of the security deposit. Fla. Stat. §83.49(3)(a). This argument  was rejected: first, because the amount prepaid was not the security deposit, it was the first month’s rent; and second, a tenant breaching a lease agreement cannot claim the protection of the statutory certified letter requirement because the tenant has not “vacat[ed] the premises for termination of the lease.” Id.

The Defendant claimed he was entitled to retain the $2,700.00 prepaid rent because the Plaintiffs breached the lease agreement. (Although the Defendant did not plead setoff as a defense, he was not required to do so as this is a small claims case. Rule 7.090(b); Linden v. Auto Trend, Inc., 923 So.2d 1281 (Fla 4th DCA 2006) [31 Fla. L. Weekly D933d]; Spivey v. Siam Motors, Inc., 14 Fla. L. Weekly Supp. 1096b (13th Cir. Ct. 2007) (appellate capacity).) Entitlement to rent from a breaching tenant is governed by Florida Statute §83.595. The evidence was undisputed that the Plaintiffs were never provided occupancy of the premises; indeed, they were never provided a key. The Defendants options under the statute were to release the Plaintiffs from liability for any rent, or to hold the Plaintiffs liable for rent until the property is relet. For instance, had the property relet on the 15th of the month, the landlord would have to return rent to the tenants pro rata. Here, the only evidence presented was that the Defendant believed he was entitled to keep the entire amount of prepaid rent. There was simply no evidence presented as to if and when the property was relet, and as a result, the Court concludes that the Defendant has failed to meet its burden of showing entitlement to a setoff.

As a result, the Court found  that the Plaintiffs, although they breached the lease agreement, were entitled to a return of the prepaid rent.

TAYLOR, vs. EDRI, County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-21741 COCE 53. February 4, 2013. Robert W. Lee, Judge.20 Fla. L. Weekly Supp. 727c