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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 34795
Experience:  16 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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I am a landlord in Florida. Florida Statutes require that

Customer Question

I am a landlord in Florida. Florida Statutes require that the Landlord not commingle security deposits with personal funds if the Landlord owns more than five units. But the only penalties discussed in FL Statute 83.49 for failure to keep the security deposits in a separate bank account are fines to those licensed under s. 509.241 (i.e. real estate agents) and/or the suspension or revocation of the professional license. I am not required to have a license since I do not manage property for others. Hence, it seems to me that the law does not apply to me. Am I right about this?
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Submitted: 1 year ago.
Category: Legal
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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You are correct that while the law does state that the deposits shouldn't be commingled, it doesn't set out a penalty if a landlord does. So this essentially makes FL Statutes 83.49 hard to enforce.

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If the tenant became aware of commingling then under 83.55 it gives them the right to sue for damages, but it would be up to the judge to determine what those damages were and how much to award.

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As for it not applying unless you have 5 or more units...I don't see that under the statute which reads:

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83.49 Deposit money or advance rent; duty of landlord and tenant.—

(1) Whenever money is deposited or advanced by a tenant on a rental agreement as security for performance of the rental agreement or as advance rent for other than the next immediate rental period, the landlord or the landlord’s agent shall either:

(a) Hold the total amount of such money in a separate non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;

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(b) Hold the total amount of such money in a separate interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants, in which case the tenant shall receive and collect interest in an amount of at least 75 percent of the annualized average interest rate payable on such account or interest at the rate of 5 percent per year, simple interest, whichever the landlord elects. The landlord shall not commingle such moneys with any other funds of the landlord or hypothecate, pledge, or in any other way make use of such moneys until such moneys are actually due the landlord;

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(c) Post a surety bond, executed by the landlord as principal and a surety company authorized and licensed to do business in the state as surety, with the clerk of the circuit court in the county in which the dwelling unit is located in the total amount of the security deposits and advance rent he or she holds on behalf of the tenants or $50,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of the provisions of this section. In addition to posting the surety bond, the landlord shall pay to the tenant interest at the rate of 5 percent per year, simple interest. A landlord, or the landlord’s agent, engaged in the renting of dwelling units in five or more counties, who holds deposit moneys or advance rent and who is otherwise subject to the provisions of this section, may, in lieu of posting a surety bond in each county, elect to post a surety bond in the form and manner provided in this paragraph with the office of the Secretary of State. The bond shall be in the total amount of the security deposit or advance rent held on behalf of tenants or in the amount of $250,000, whichever is less. The bond shall be conditioned upon the faithful compliance of the landlord with the provisions of this section and shall run to the Governor for the benefit of any tenant injured by the landlord’s violation of this section. In addition to posting a surety bond, the landlord shall pay to the tenant interest on the security deposit or advance rent held on behalf of that tenant at the rate of 5 percent per year simple interest.

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That part about renting in 5 different counties just refers to the bond.. So the statute just says don't commingle deposits with personal funds regardless of how many units you rent...which makes sense since the landlord doesn't own the security deposit money.

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Later on in the statute it makes reference to 5 dwelling units, but that is just about giving notice about any advance rent or security deposit payments that the landlord may transfer or make a claim against.

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2) The landlord shall, in the lease agreement or within 30 days after receipt of advance rent or a security deposit, give written notice to the tenant which includes disclosure of the advance rent or security deposit. Subsequent to providing such written notice, if the landlord changes the manner or location in which he or she is holding the advance rent or security deposit, he or she must notify the tenant within 30 days after the change as provided in paragraphs (a)-(d). The landlord is not required to give new or additional notice solely because the depository has merged with another financial institution, changed its name, or transferred ownership to a different financial institution. This subsection does not apply to any landlord who rents fewer than five individual dwelling units. Failure to give this notice is not a defense to the payment of rent when due.

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As an aside, in addition to being an attorney, I have also been a landlord for over 26 years...

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thanks

Barrister