Legal Question in Real Estate Law in Florida

Re: Discovery in small claims suite

Section 83.49 of the Florida Statutes deals specifically with a landlord�s duty regarding security deposits. Section 83.49 states in pertinent part:

�(3)(a)_ Upon the vacating of the premises for termination of the lease, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or in which to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.�

Section 83.49 further states that �If the landlord fails to give the required notice within the 15 day period, he or she forfeits the right to impose a claim upon the security deposit.�

If the landlord failed to serve you with the statutorily required notice, then you may not even have to get into the merits of the matter. However, if you need to litigate the case, the rules of discovery set forth in the Florida Rules of Civil Procedure (FRCP) will apply, but the small claims court may provide you with guidance and enter orders regarding the scope and deadlines for discovery that may differ slightly from the rules set forth in the FRCP.

An inspection of the premises at issue is a standard discovery tool. Generally, representatives of both parties are present during the inspection of the property. If you rented the property in "as is" condition, and the property already had certain deficiencies, you do not become liable for those pre-existing deficiencies upon the termination of your lease. The landlord takes back the property subject to those deficiencies and cannot hold back your security deposit based on problems that existed prior to your leasing the premises.

The issue is one of proving that the problems existed prior to you taking possession of the premises. You may want to contact prior tenants of the apartment, neighbors or former employees of the landlord that may be familiar with the condition of the apartment prior to the date you took possession. Perhaps they may recall that the problems at issue existed prior to you moving in. If you can find witnesses to confirm your position, have them sign an affidavit (sworn statement) that states how it is that the witness (or affiant) has personal knowledge regarding the condition of the property prior to a certain date (the date you took possession), list the problems, state that the witness/affiant has no personal interest in the dispute, etc. and try to have the witnesses agree to appear in court on the day the judge selects to take the case to trial.

Of course, if you have a written lease, the terms and conditions of that lease will be critically important. Seek the advice of an attorney experienced in landlord-tenant disputes and good luck.