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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?
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.
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.
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.
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.
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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.
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.
Are any of the sources you read the Florida criminal statute I pasted for you?
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.
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.
You have to show when you left, but the receipts and new lease and video are all evidence of that.
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.
I'm sure she did, and that is illegal. But it's not an automatic forfeiture.
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.
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.
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.
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