JOHN SERAK

v.

SANDRINE VAN VLIERBERGHE, CASA PARAISO

WALSH, J.

Tenants John and Lauren Serak ("Tenants") executed a lease agreement with Sandrine Van Vlierberghe, d/b/a/ Casa Paraiso LLC ("Landlord") and provided a deposit of Two Thousand Nine Hundred ($2,900.00). When the lease expired, the [*2] Tenants remained in a month-to-month tenancy.¹ The Tenants left the residence without prior notice and demanded return of their security deposit. The Landlord, also without prior notice, only returned a portion of the deposit. The Tenants sued for the remainder. The trial court granted final summary judgment in favor of the Landlord.

On appeal, the Tenants contend that their failure to provide statutory notice of intent to vacate their month-to-month tenancy did not waive their entitlement to recover the remainder of their deposit from the Landlord. The trial judge concluded that the Tenants insufficiently pled their right to recover the deposit and thereby waived the claim. Because a tenant's right to contest seizure of a security deposit is guaranteed by the plain language of section 83.49(5), Florida Statutes, (2018) and because the Seraks specifically pled entitlement to recover their deposit, we reverse the order granting summary judgment.

The standard of review of a trial court's entry of final summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).

Even assuming that there was evidence, as the Tenants argue, of a valid lease extension, the Tenants remained 17 days after the alleged lease extension expired. They were therefore tenants at suffrage at the time they vacated the premises. § 83.04, Fla. Stat. (2016). Thus, there was no factual dispute that they were tenants on a month-to-month tenancy. [*3] IN THE CIRCUIT COURT OF

THE ELEVENTH JUDICIAL

CIRCUIT, IN AND FOR MIAMI-

DADE COUNTY, FLORIDA

APPELLATE DIVISION

V.

CASE NO.: 2019-263-AP-01 LOWER TRIBUNAL CASE NO.: 2017-008203-SP-26 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Ins. Co. v. Gonzalez, 178 So. 3d 448, 450 (Fla. 3d DCA 2015), citing State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 107 (Fla. 1st DCA 2010).

Whether a landlord is permitted to retain or required to return a tenant's security deposit depends upon the interplay between sections 83.49(3)(a) and 83.49(5), Florida Statutes (2018). Section 83.49(3)(a), Florida Statutes governs the landlord's duty:

(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days 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.

(emphasis added). Section 83.49(5), Florida Statutes governs the tenant's duty:

(5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days' written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice [*4] requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

(emphasis added). Here, neither the Landlord nor Tenants abided by their statutory notice obligations. What happens under these circumstances? If the tenant fails to advise the landlord that they are vacating a month-to-month tenancy (as happened here), subsection (5) of the statute says, "[f]ailure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it." The landlord's notice obligation is forgiven - but the tenant does not forfeit the right to lay claim to all or part of their deposit. See Plakhov v. Serova, 126 So. 3d 1221, 1223 (Fla. 4th DCA 2012).

The trial court granted summary judgment for the Landlord for the following reasons:

THE COURT: I think this ends the case. This ends the case. They're not entitled to it. They Forfeited [the security deposit] when they didn't give the seven days' written notice.

MS. PEREZ: Your honor, that's not the law. Even if the landlord hadn't given a 30-day notice of intent, and even if [the Tenants] hadn't given the notice of the mail, of my new address, of their new address THE COURT: Well, I guess you're going to have to take an appeal because I'm going to grant his MSJ which, to me, ends the case.

The trial court incorrectly concluded that the Tenants' failure to give notice results in a forfeiture of their right to claim the deposit. [*5] Counsel for the Landlord argued further that the Tenants forfeited their right to claim the deposit because their pleading was deficient:

MR. CRESPO: that's not their complaint. Their complaint is limited to the statutory THE COURT: What about their Amended Complaint?

MR. CRESPO: Their Amended Complaint is exactly the same as their initial Complaint. They just restated the same cause of action, and it's statutorily driven. What they're arguing is statutory forfeiture of the landlord's right to retain the security deposit.

THE COURT: I guess you can bring a separate action for the rest of the damages because it's not covered in your Amended Complaint. *** I have your Amended Complaint right here. Let's look at it. Here it is. Okay. It's 19 paragraphs long. It states Plaintiff sues Defendant for return of security deposit. That's all it's limited to. *** So that's all we're talking about. If you want anything else, you have to plead it.

MS PEREZ: but we have the issue of how much damages the landlord's entitled to, versus the condition of the property. So that's still an issue. What we are THE COURT: I totally disagree. (emphasis added) The Appellee concedes that the Tenants' failure to give statutory notice does not result in waiver of their entitlement to seek return of the deposit. Nonetheless, the Appellee argues that we should affirm because the Tenants' Amended Complaint was deficient. According to the Landlord, the Tenants only pled a [*6] claim that the Landlord forfeited its right to retain the deposit by failing to give statutory notice - but failed to state a claim to recover all or part of the security deposit.

We disagree. The Tenants' Amended Complaint was "for Return of Security Deposit." The Tenants demanded judgment for One Thousand Nine Hundred and Fifty ($1,950.00), the remainder of their security deposit. In paragraph 16 of the Amended Complaint, the Tenants stated, "Plaintiffs left the property in great condition with only minor wear and tear that was reasonable for residing there for over four (4) years and therefore are entitled to the return of their security deposit."

There is no heightened pleading requirement under the Small Claims Rules. See Rule 7.050, Fla. Sm. Cl. R. The Landlord invoked the civil rules of procedure in this small claim case. There is similarly no rule of civil procedure requiring a heightened pleading standard for return of a tenant's security deposit. See Rule 1.110, Fla. R. Civ. P. Instead, the rule for pleadings requires merely a "short and plain statement of the grounds upon which the court's jurisdiction depends" and a "short and plain statement of the ultimate facts" supporting such grounds. Id. The Tenants' Amended Complaint suffices.

The Landlord argued below that the Tenants' claim was a "statutory" claim. This is true. But under a plain reading of both relevant sections of the statute, the [*7] Tenants' failure to give notice does not operate as a forfeiture of their right to recover their deposit and the Tenants are entitled to ask for all or part of their deposit to be returned. Accordingly, we find that there was no failure of pleading and therefore, it was error to dispose of the case at summary judgment.

We reverse and remand for a trial on the Tenants' claim for the security deposit.

TRAWICK and SANTOVENIA, JJ., concur. COPIES PROVIDED TO ALL PARTIES