January 2015 - Wetherington Hamilton, P.A.

Most people have at one time or another been a tenant in a residential property. Security deposits for the lease of a residential property are not uncommon in Florida. Such deposits are typically paid to landlords to be held as security for damage that may caused to the property by the tenant or in the event of the tenant’s failure to pay rent.

Upon vacating the property at the end of a residential lease, assuming no other issues are present, the tenant is entitled to the return of the full security deposit paid to the landlord. Florida Statute 83.49(3) requires that the landlord return the deposit to the tenant within 15 days of the date the tenant vacates the property.

If, however, the landlord wishes to make a claim against the deposit, the landlord must notify the tenant by certified mail within 30 days of the date the tenant vacates the property. It is important to note that if the landlord does not return the deposit within 15 days and does not impose a claim on the deposit within 30 days as provided by the statute, the landlord loses any potential claim against the deposit. This can be a critical mistake for landlords who do not act within the statutory time frame.

So what happens if you are a tenant and your landlord refuses to return your security deposit and fails to impose a claim against the deposit as described above? You have the right under Florida Statutes to bring an action against the landlord in court (typically the county court of the county where the property is situated) to recover the deposit. In addition, the statute provides that the prevailing party is also entitled to recover costs and attorneys fees. This means that a tenant can collect the full deposit as well as all of the costs incurred in doing so.

What if you are a landlord and you want to make a claim against the deposit for damage to the property caused by the tenant? Within 30 days of the date that the tenant vacates the property at the end of the lease, the landlord may impose a claim against the tenant’s security deposit by notifying the tenant in writing by certified mail. The notice must indicate the amount of and reason for the claim. The tenant then has 15 days from the receipt of the notice to object to the landlord’s claim. If no objection is made, the landlord may deduct the amount of the claim from the deposit and remit the remainder, if any, to the tenant within 30 days of the date of the notice to impose a claim.

Remember, if you are a tenant or a landlord facing issues regarding residential leases, you have rights as provided for by Florida Statutes. For further information about your rights, please contact our office at (813) 225-1918.

Jaremy J. Shelton, Esq.

Often a creditor, in the attempt to collect on a judgment will find the judgment debtor has placed some or all assets into a joint bank account held with the judgment debtor’s spouse or the assets have been transferred in some way to a spouse. This may seem like a lost cause, but our recent experience has proven otherwise.

In Florida, under the Uniform Fraudulent Transfer Statute, transfers made to a spouse within 4 years of the transfer may result in a judgment against the judgment debtor’s spouse for the amounts transferred. To pursue the claim against the Spouse, the judgment creditor may either bring a separate action against the spouse who received the Fraudulent Transfer of assets or may use the Proceedings Supplementary Statute at 56.29 Florida statutes to execute on the existing Judgment.

The Florida Uniform Fraudulent Transfer Statutes at Chapter 726 defines a transfer as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and included payment of money, release, lease, and creation of a lien or other encumbrance.” This broad definition gives creditors extreme latitude in discovering and suing for transfers to a spouse. The definition would likely include, movement of assets into a bank account solely held by the spouse, paying for “stuff” which the debtor states is exclusively owned by the spouse, paying the spouse a salary for work not performed, and giving the spouse property of any kind which the spouse did not earn in any way. These fraudulent transfers will also occur if the judgment debtor transfers individual assets into jointly held property.

Debtors are clever in disguising their transfers. Other clever means of moving assets to the spouse include having the spouse own the shares of the company run, managed and controlled by the judgment debtor. The Spouse may receive a large salary for doing clerical work for the company along with stock payment distributions. This type of arrangement is difficult to spot due to the fact that judgment debtor will defend the quality and quantity of work of the spouse. What gives the judgment debtor away in this instance is the small salary paid to the judgment debtor for doing most if not all work for the company. Such an arrangement is actionable as a fraudulent transfer and can be pursued against the spouse.

Once the transfer exists, the determination as to whether it is fraudulent is defined by Florida Statutes Chapter 726. These sections make fraudulent transfers fairly easy to prove when they are made by the Judgment Debtor to the spouse after the Debtor knows there is a pending collections claim.

The creativity in disguising fraudulent transfers never ceases to amaze the attorneys at Wetherington Hamilton, P.A. With technology making transfers of money easier every day, the type fraudulent transfer will also expand. Our hope is that you will decide to pursue these claims to ensure that this type of activity is limited in the future.

Theodore J Hamilton, Esq.

Residential Leases and Security Deposits

Collection of Fraudulent Transfers Made to a Spouse in the State of Florida

Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.