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Lucy, Esq.
Lucy, Esq., Attorney
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I just rented a room out of a woman's house for 1 month and

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I just rented a room out of a woman's house for 1 month and I moved out about 2 weeks ago and she's refused to give me my $700 security deposit back. I initially paid $1400 for the sum of the first month's rent and the security deposit. I paid half of it with a check and theother half with cash, but she wrote on the contract that it was paid explicitly in cash and that it says "paid" on the contract. She issued this to me as the receipt and it is signed by both of us.The contract itself says that she needs to give me the security deposit back within 30 days if the place is left clean and undamaged. I left the place spotless like I always do when I rent and move out, and I took a video that is very detailed. I also took pictures.She claims that I didn't give her 30-day notice and that she simply doesn't have any money, but the contract explicitly says that the security deposit would be kept in escrow. I did not give her 30-day notice, but the agreement that I would give her 30-day notice was completely verbal and is no where on the contract.I have a geo-tagged and dated video that shows the place moved-out of and spotless and free of damage. I also recorded a phone call with her last night where she explicitly stated that I'm moved out and that she won't give me the money because she doesn't have it. She explicitly states that the money was never in escrow.One thing I'm worried about is that I haven't given her the key back because I'm worried about what will happen, but I don't think she can prove that I never gave it back.How likely is security deposit to be returned to me if I file in small claims court with all this evidence and the strength of my case? What other things can I do to strengthen my case?

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

What state are you in?

Customer: replied 1 month ago.
Florida

Thank you.

When there's no written lease, Florida law only requires 15 days notice of termination. Fl. Stat., Section 83.57. As long as you told her you were leaving by the 15th, she cannot hold your deposit for not giving a full 30 day notice.

Florida law also gives the landlord 30 days to send you a written notice explaining the reasons for keeping a deposit and giving you a chance to dispute those reasons. The landlord is supposed to file a lawsuit in Small Claims Court if you disagree with her reasons for keeping the deposit. Section 83.49. If she didn't send you a notice within 30 days, she forfeits the deposit. You automatically will get it back if you go to court. She HAD to send that notice to keep even a penny of it.

She is also required by law to put your deposit into a separate bank account and not co-mingle it with her own monies. The fact that she doesn't have the money is not a defense, because she's supposed to have it. She's essentially saying that she doesn't have to pay you because she broke the law, and it doesn't work that way.

If you've moved out, the fact that you haven't returned the key shouldn't affect the deposit, but if you're concerned, you can return it now.

Customer: replied 1 month ago.
I actually didn't give her any notice. Not 1 day. What is the best recourse then? It's not right for her to keep any of my security deposit when the place is perfectly clean and kept.

Thank you for clarifying that.

Again, if she didn't account for the deposit as required by law, meaning sending you a written, itemized list of reasons she's keeping it, she can't keep it.

Customer: replied 1 month ago.
This happened on the 1st of October. I told you that I called her yesterday and recorded the phone call.

Yes, I understand that, and I'm getting to that, but she needs to send a written notice. That's the legal requirement. Telling you orally that you won't get the deposit back is not sufficient.

If you moved out on October 1, she has until October 30 to send you that notice. You cannot sue her until you get it.

In the future, you MUST give a landlord notice before moving out, even without a written lease. If she sends you something in writing saying that she's keeping the deposit to cover October's rent because you moved out without telling her, she will win. You can't rely on your landlord to break the security deposit law in order for you to get your money back.

On top of that, it's a felony in Florida to record a conversation without the consent of the other party. If you tell the landlord or the judge that you have such a recording, you could go to jail. And it's not admissible in court. Fl. Stat., Section 934.03.

Customer: replied 1 month ago.
then, keeping in mind the big picture, which is that I began the lease on Sep 1 (making it impossible to give her 30-day notice unless I told her the same day I moved in), and it ended just over 2 weeks ago, what do you recommend I do?Should I wait 12 more days for the end of the month and then file? Won't that give her some leg to stand on if I don't file anything before the 1st of the next month? Because then she can say that I didn't move out until the 1st of November and that I didn't pay for October and that's why she's keeping my deposit.

If you file before November 1, she will send you the written itemized list explaining that she's keeping the deposit to cover October's rent, and then she'll win. She might even file a counterclaim for the second half of November's rent, and she'll win that, too. So filing now doesn't help you at all.

She cannot use the fact that you waited a month to file the lawsuit as evidence that she doesn't owe the money, both because the statute of limitations is 4 years and because, again, you can't file within 30 days.

Note that if you sue her and she returns the deposit, she CAN turn around and sue you for October's rent. And because you didn't give her any notice, she will win that lawsuit. I'm sorry. The fact that you didn't know the law isn't a legal defense. Suing her could actually wind up costing you a lot of money.

I apologize that this was probably not the Answer you were hoping to receive. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand. Please rate my answer positively to ensure I am paid for the time I spent answering your question. If you are on a mobile device, you may need to scroll to the right. Thank you.

Good luck.

Customer: replied 1 month ago.
you're essentially saying that the only way I can win is on the basis that she doesn't send me an itemized list? That sounds pretty ludicrous. I'll rate you when I've gotten this question clearly addressed.

Yes.

A person who rents a room on a monthly basis is obligated to pay rent until they give proper notice that they're leaving. You had a month to month lease, and you gave no notice. That means you broke the law, and she's entitled to keep your deposit. The only way she WOULDN'T get to keep it, is if she also breaks the law. Or if you could produce a piece of paper stating that your lease was for exactly one month, no more, no less, and would automatically terminate unless extended.

Customer: replied 1 month ago.
I follow that logic. On that basis then, there is something significant here on the contract. There's a typo in regards ***** ***** statement. It reads:"The tenant or the landlord may terminate this agreement with a '1 sep. /17' day written notice to the other party." Where the small quotes is a handwritten date written exactly as I typed it, with a slash exactly like that. What I think she tried to do is trick me into signing a 1-year lease. She's trying to say there that I can't terminate the lease until Sep 1 of 2017, but obviously it doesn't make grammatical sense. So, won't this null the entire termination policy?
Customer: replied 1 month ago.
Also, what I think you didn't take into consideration with your previous response is that she's in violation with her HOA, and she's probably committing tax fraud on top of it. Also, she broke the law by spending my security deposit and I have a recorded phone call where she says she spent it and that it didn't go into escrow.

Florida state law requires you to give 15 days notice. If the language in the agreement is invalid, then the statute I pasted above applies, and the end result is the same. The only situation where a person can vacate a tenancy with no notice at all is if they have a lease for a set term that doesn't renew.

I could not have taken into consideration anything to do with the HOA, because you did not mention that in your question.

You are correct that I did not consider the phone call. Making the recording is a felony. If you present it to a judge, you will be charged with a crime and you could go to jail. I apologize if you did not see where I explained that earlier.

If you believe your landlord is committing tax fraud, by all means, report her to the IRS. That has no bearing whatsoever on the dispute over your security deposit, but you can do it. People should pay their taxes, and it's OK to let the IRS know when they don't.

https://www.irs.gov/individuals/how-do-you-report-suspected-tax-fraud-activity

Customer: replied 1 month ago.
Regarding the phone call, I read on many different sources that if I'm a party to the conversation then it's legal, which I was. I was talking to her and recording our conversation.

Are any of the sources you read the Florida criminal statute I pasted for you?

Customer: replied 1 month ago.
Also, is she required to prove that I gave her 15-day notice or am I required to provide the burden of proof?

She can testify that she didn't receive the notice. If you'd given her notice, you could counter her testimony by producing proof of it.

Customer: replied 1 month ago.
Ok, one you're being impolite with your language. Second, I actually just read the statue and it explains intercepting a phone call which supports what I just said.
Customer: replied 1 month ago.
That means being a hidden party to the phone call and recording it.

I apologize if you feel that I was impolite. That was not my intent. But you're telling me I'm wrong when I have shown you the exact statute that says what I am saying.

The statute requires the consent of all parties to the conversation. "It is lawful under this section and ss. 934.04-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception." It does not say you can record your own conversation, unless you are law enforcement.

I went back and read the entire security deposit statute again. There's nothing that says she forfeits the deposit for not putting it into a separate account. She only forfeits it if she doesn't send you a notice explaining why she's keeping it - which it doesn't sound like she intends to do. So, as frustrating as it is, you have to wait.

The phone call isn't even helpful, because she still gets until October 30 to return the deposit, even if she said she wasn't going to.

Customer: replied 1 month ago.
My only worry is that if I wait, who is the burden of proof on to show that I moved out? Because I have receipts and new agreements and that video of everything being clean. Is that sufficient?

You have to show when you left, but the receipts and new lease and video are all evidence of that.

Customer: replied 1 month ago.
Also, she doesn't have my correct address. How can she prove that she got this to me if she tries to get me the itemized list?
Customer: replied 1 month ago.
Also, who is the burden of proof on to show that I gave notice? Because I'm pretty sure she can't prove that I didn't give 15-day notice.

If the post office rejects the letter, she'll have that as proof that she mailed it. But all she's required to do is send it to your last known address - even if that's her own house. She'll actually have the letter, post-marked, if you didn't tell the postal service to forward your mail.

She has to prove that you didn't give notice, but her testimony is proof. In a civil case, the burden of proof is fairly low - it's by a preponderance of the evidence. The judge will ask her if you gave notice. The judge can also ask you, under oath, if you gave notice. If you say that you did, then they'll ask you to prove it because "I gave notice" would be your defense.

Customer: replied 1 month ago.
Ok, so I hear you. Your stance is that I I should wait until Nov 1st, and even then she can sue me for October's rent. Correct?Also, you admitted that you had not taken into account the situation with the HOA. How can this influence the court's decision if at all?
Customer: replied 1 month ago.
Also, the other attorney suspects and I believe this to be very true that my landlord most likely spent the deposit way before I could have even been required to give notice. This is breaking the law

I'm sure she did, and that is illegal. But it's not an automatic forfeiture.

Customer: replied 1 month ago.
Ok, so I hear you. Your stance is that I I should wait until Nov 1st, and even then she can sue me for October's rent. Correct?Also, you admitted that you had not taken into account the situation with the HOA. How can this influence the court's decision if at all?

What situation with the HOA? All you said was "She's in violation with her HOA."

Any issue with the HOA is not likely o affect whether she needs to return your security deposit, but I can't evaluate it unless you're willing to elaborate.

Customer: replied 1 month ago.
Well she told me she was hiding renting to me with the HOA to avoid paying a $500 fee. She went to great lengths to do this, telling the security gate guards that I was her sister-in-law.

You're free to tell the HOA what she was doing, but that doesn't affect any lawsuit between the two of you for rent or the security deposit. Renting a place without paying fees owed under HOA regulations isn't the same as renting in violation of state or local ordinance that prohibits rentals.

Customer: replied 1 month ago.
Well won't that have any weight in the mediation? Because won't it be a mediation rather than a hearing?
Customer: replied 1 month ago.
She's going to want to settle with me after the mediation. The other attorney is recommending that I file now because I won't get a mediation until after Nov 1. She's aware of everything you told me regarding the itemized list.

The judge can refer the parties to mediation rather than holding a trial. They're not required to. You'd have to convince the mediator that the landlord's issue with the HOA is relevant to whether she has to return your deposit. I can't promise it will bear any weight at all. I can't promise that it won't.

You're free to file whenever you want. I have already explained why it may not benefit you to file now.

I'm afraid I have to sign up. When I picked up this question at 6:30, I did not anticipate that you would have more than 2.5 hours of follow-up questions. I wake up very early in the morning and am not able to stay up with you any longer. If you have more questions, I'm happy to answer them in the morning.

Please rate my answers positively as a show of good faith and appreciation for all the time I have spent with you this evening. These is no charge for related follow-up questions posted after rating.

Lucy, Esq. and 3 other Landlord-Tenant Specialists are ready to help you
Customer: replied 1 month ago.
Thanks Lucy. You've answered it sufficiently.

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