Florida Statutes 83.491 – Fee in lieu of security deposit
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(1)(a) If a rental agreement requires a security deposit, a landlord may offer a tenant the option to pay a fee in lieu of a security deposit.
Terms Used In Florida Statutes 83.491
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Credit report: A detailed report of an individual's credit history prepared by a credit bureau and used by a lender in determining a loan applicant's creditworthiness. Source: OCC
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Dwelling unit: means :(a) A structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household. See Florida Statutes 83.43
- Landlord: means the owner or lessor of a dwelling unit. See Florida Statutes 83.43
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Premises: means a dwelling unit and the structure of which it is a part and a mobile home lot and the appurtenant facilities and grounds, areas, facilities, and property held out for the use of tenants generally. See Florida Statutes 83.43
- Rent: means the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement. See Florida Statutes 83.43
- Rental agreement: means any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of premises. See Florida Statutes 83.43
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- Tenant: means any person entitled to occupy a dwelling unit under a rental agreement. See Florida Statutes 83.43
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) A landlord may provide a tenant the option of paying a security deposit in monthly installments in an amount that is agreed upon between the tenant and the landlord while participating in the fee program.
(2)(a) If a tenant agrees to pay a fee in lieu of a security deposit, the landlord must notify the tenant within 30 days after the conclusion of the tenancy if there are any costs or fees due resulting from unpaid rent, fees, or other obligations under the rental agreement, including, but not limited to, costs required for repairing damage to the premises beyond normal wear and tear.
(b) A landlord may not submit a claim to an insurer to recover the landlord’s losses associated with unpaid rent, fees, or other obligations under the rental agreement, including, but not limited to, costs required for repairing damage to the premises beyond normal wear and tear, until at least 15 days after providing the tenant with the required notice under paragraph (a).
1. The landlord must include an itemized list of any unpaid amounts and the dates such amounts were due, documentation supporting any itemized damages and costs of repairs, and a copy of any written objection or report of any communication of objection by the tenant when the landlord submits a claim to an insurer.
2. If an insurer pays a claim that was submitted under this subsection to a landlord and the insurer has subrogation rights, the insurer may, within 1 year after the tenancy that was the subject of the claim ends, seek reimbursement from the tenant for the amounts paid to the landlord. If the insurer seeks reimbursement from the tenant, the following apply:
a. The insurer must provide the tenant with all documentation for losses which the landlord provided to the insurer in support of the landlord’s claim and a copy of the settlement statement documenting the insurer’s payment of the landlord’s claim.
b. The tenant retains any defenses against the insurer which the tenant would otherwise have against the landlord.
3. A landlord may not accept payment from both a tenant and an insurer for amounts associated with the same rent, fees, or damages.
(3) If a landlord offers a tenant the option to pay a fee in lieu of a security deposit, the landlord must notify the tenant in writing of all of the following:
(a) That the tenant has the option to pay a security deposit instead of the fee at any time.
(b) That the tenant may, at any time, terminate the agreement to pay the fee in lieu of the security deposit and instead pay a security deposit as listed in a rental agreement between the landlord and tenant or, if a security deposit was not agreed upon in a rental agreement between the landlord and tenant, in the amount that is otherwise offered to new tenants for a substantially similar dwelling unit on the date that the tenant terminates the agreement.
(c) That the tenant may choose to pay the security deposit in monthly installments in an amount that is agreed upon between the landlord and tenant while participating in the fee program.
(d) Whether any additional charges apply for the options provided in paragraphs (a) and (b).
(e) The amount of the payments required for each option the landlord offers.
(f) That the fee is nonrefundable, if applicable.
(g) That the fee is only for securing occupancy without paying a required security deposit.
(h) That the fee payment does not limit or change the tenant’s obligation to pay rent and fees, if any, under the rental agreement or limit or change the tenant’s obligation to pay the costs of repairing damage to the premises beyond normal wear and tear.
(i) That if the landlord uses any portion of the fee to purchase insurance, the tenant is not insured and is not a beneficiary of the landlord’s insurance coverage, and that the insurance does not limit or change the tenant’s obligations to pay rent and fees under the rental agreement or change the tenant’s obligation to pay the costs of repairing damage to the premises beyond normal wear and tear.
(4)(a) If a tenant decides to pay a fee in lieu of a security deposit, a written agreement to collect the fee must be signed by the landlord, or the landlord’s agent, and the tenant. The written agreement may not contain any clause that contradicts s. 83.45 or s. 83.47. The written agreement must, at a minimum, specify all of the following:
1. The amount of the fee, which may not be increased during the term of the rental agreement.
2. How and when the fee is to be collected.
3. The process and timeframe during which a tenant must pay the security deposit specified in the rental agreement if the tenant defaults on paying the fee, and that such default will not adversely affect the tenant’s credit rating if the security deposit is timely paid.
4. That the written agreement may be terminated at any time as long as the tenant pays the amount of the security deposit specified in the rental agreement.
5. If the tenant pays the amount of the security deposit specified in the rental agreement, then the tenant’s default on paying the fee or termination of the written agreement may not adversely impact the tenant’s credit report.
(b) The written agreement specified under paragraph (a) must also include a disclosure in substantially the following form:
FEE IN LIEU OF SECURITY DEPOSIT
THIS FEE IS NOT A SECURITY DEPOSIT AND PAYMENT OF THE FEE DOES NOT ABSOLVE THE TENANT OF ANY OBLIGATIONS UNDER THE RENTAL AGREEMENT, INCLUDING THE OBLIGATION TO PAY RENT AS IT BECOMES DUE AND ANY COSTS AND DAMAGES BEYOND NORMAL WEAR AND TEAR WHICH THE TENANT OR HIS OR HER GUESTS MAY CAUSE.
THE TENANT MAY TERMINATE THIS AGREEMENT AT ANY TIME AND STOP PAYING THE FEE AND INSTEAD PAY THE SECURITY DEPOSIT AS PROVIDED IN SECTION 83.491, FLORIDA STATUTES.
THIS AGREEMENT HAS BEEN ENTERED INTO VOLUNTARILY BY BOTH PARTIES AND THE TENANT AGREES TO PAY THE LANDLORD A FEE IN LIEU OF A SECURITY DEPOSIT AS AUTHORIZED UNDER SECTION 83.491, FLORIDA STATUTES. IF THE LANDLORD USES ANY PORTION OF THE TENANT’S FEE TO PURCHASE INSURANCE, THE TENANT IS NOT INSURED AND IS NOT A BENEFICIARY OF SUCH COVERAGE, AND THE INSURANCE DOES NOT CHANGE THE TENANT’S FINANCIAL OBLIGATIONS UNDER THE RENTAL AGREEMENT.
THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS.
(5) A fee in lieu of a security deposit may be:
(a) A recurring monthly fee, payable on the same date that the rent payment is due under the rental agreement; or
(b) Payable upon a schedule that the landlord and tenant choose and as specified in the written agreement.
(6) A fee collected under this section, or an insurance product or a surety bond accepted, by a landlord in lieu of a security deposit is not a security deposit as defined in s. 83.43(13).
(7) A landlord has exclusive discretion as to whether to offer tenants the option to pay a fee in lieu of a security deposit and is not required to offer such fee option to tenants. However, if a landlord offers a tenant an option to pay a fee in lieu of a security deposit, the landlord may not use a prospective tenant’s choice to pay, or offer to pay, a fee in lieu of a security deposit as criteria in the determination to approve or deny an application for occupancy, and the landlord must also offer all new tenants renting a dwelling unit on the same premises the option to pay a fee in lieu of a security deposit, unless the landlord chooses to prospectively terminate the fee option for all new rental agreements.
(8)(a) This section does not:
1. Require a fee collected in lieu of a security deposit to be used to purchase an insurance product or a surety bond; or
2. Prohibit a tenant from being offered or sold an insurance product or a surety bond to present to the landlord in lieu of a security deposit if the offer or sale of such insurance product or surety bond complies with the laws of this state.
(b) Acceptance by a landlord of an insurance product or a surety bond that is purchased or procured by a tenant, a landlord, or an agent of the landlord may not be considered an offer on the part of the landlord to allow a tenant to pay a fee in lieu of a security deposit for the purposes of subsection (7).
(9) This section applies to rental agreements entered into or renewed on or after July 1, 2023.