Florida Statutes Section 83.49 make the award of attorneys fees to the prevailing party in a claim for security deposit mandatory. What makes one side the prevailing party? The case law indicates that if the tenant recovers anything, the tenant is the prevailing party. For instance where a tenant sued to recover a $2,200 security deposit, but was only awarded $708, the tenant was the prevailing party [Rose v. Gaglioti 46 Fla. Supp 2d 19 (11 Cir 1991)]. Likewise when a tenant sued on three counts failure to maintain, habitability, and security deposit, and lost the first two counts, but recovered the deposit, he was still deemed the prevailing party Bohanan v. Bergman 8 Fla L. Weekly Supp 428a (17th Cir App 2001).
Some cases have reduced the tenants attorney fee award in proportion the share of the deposit recovered [Stephenson v Cox 13 Fla L. weekly Supp 910b (Broward 2006)]. In a case where the landlord failed to make the required claim, the tenant sued to recover the deposit, and the landlord counterclaimed for damages, the tenant was awarded the entire deposit and declared the prevailing party. While the landlord was award damages in the counterclaim, he was not declared the prevailing party because the damages were less than the deposit he had withheld. Malagon v. Solari 566 So.2d 352 (Fla 4thDCA 1990). In a similar case where the landlord’s counterclaim was for unpaid rent, The tenant was awarded fees for prevailing on the security deposit claim, but the landlord was also awarded fees for prevailing on the rent claim. Hicks v. Marchetti 4 Fla L. Weekly Supp 525 (20th Cir App. 1996).
As the attorneys fees will usually exceed the amount of the security deposit, landlords should exercise discretion in claiming against the tenant’s security deposit.