Florida Senate - 2023                              CS for SB 494
       
       
        
       By the Committee on Judiciary; and Senator DiCeglie
       
       
       
       
       
       590-02351-23                                           2023494c1
    1                        A bill to be entitled                      
    2         An act relating to fees in lieu of security deposits;
    3         creating s. 83.491, F.S.; authorizing a landlord to
    4         offer a tenant the option to pay a fee in lieu of a
    5         security deposit; requiring the landlord to notify the
    6         tenant of certain unpaid fees and costs within a
    7         specified time after the conclusion of the tenancy;
    8         prohibiting the landlord from filing an insurance
    9         claim within a specified period of time; providing
   10         requirements for the landlord and insurer if an
   11         insurance claim to recover certain losses is filed;
   12         prohibiting the landlord from accepting certain
   13         payments; requiring the landlord to provide certain
   14         written notice to the tenant; requiring a written
   15         agreement signed by the landlord, or the landlord’s
   16         agent, and the tenant if the tenant decides to pay a
   17         fee in lieu of the security deposit; prohibiting the
   18         written agreement from contradicting specified laws;
   19         requiring that the written agreement contain certain
   20         information; requiring a specified disclosure in the
   21         written agreement; providing options for paying the
   22         fee; specifying that certain fees, insurance products,
   23         and surety bonds are not security deposits; specifying
   24         that landlords have exclusive discretion as to whether
   25         to offer tenants the option to pay a fee in lieu of a
   26         security deposit; prohibiting a landlord from
   27         approving or denying an application for occupancy
   28         based on a prospective tenant’s choice to pay a fee in
   29         lieu of a security deposit; requiring that landlords
   30         that offer a tenant the fee option offer it to all new
   31         tenants renting a dwelling unit on the same premises;
   32         providing an exception; providing construction;
   33         providing applicability; providing an effective date.
   34          
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. Section 83.491, Florida Statutes, is created to
   38  read:
   39         83.491 Fee in lieu of security deposit.—
   40         (1) If a rental agreement requires a security deposit, a
   41  landlord may offer a tenant the option to pay a fee in lieu of a
   42  security deposit.
   43         (2)(a) If a tenant agrees to pay a fee in lieu of a
   44  security deposit, the landlord must notify the tenant within 30
   45  days after the conclusion of the tenancy if there are any costs
   46  or fees due resulting from unpaid rent, fees, or other
   47  obligations under the rental agreement, including, but not
   48  limited to, costs required for repairing damage to the premises
   49  beyond normal wear and tear.
   50         (b) A landlord may not submit a claim to an insurer to
   51  recover the landlord’s losses associated with unpaid rent, fees,
   52  or other obligations under the rental agreement, including, but
   53  not limited to, costs required for repairing damage to the
   54  premises beyond normal wear and tear, until at least 15 days
   55  after providing the tenant with the required notice under
   56  paragraph (a).
   57         1. The landlord must include an itemized list of any unpaid
   58  amounts and the dates such amounts were due, documentation
   59  supporting any itemized damages and costs of repairs, and a copy
   60  of any written objection or report of any communication of
   61  objection by the tenant when the landlord submits a claim to an
   62  insurer.
   63         2. If an insurer pays a claim that was submitted under this
   64  subsection to a landlord and the insurer has subrogation rights,
   65  the insurer may, within 1 year after the tenancy that was the
   66  subject of the claim ends, seek reimbursement from the tenant
   67  for the amounts paid to the landlord. If the insurer seeks
   68  reimbursement from the tenant, the following apply:
   69         a. The insurer must provide the tenant with all
   70  documentation for losses which the landlord provided to the
   71  insurer in support of the landlord’s claim and a copy of the
   72  settlement statement documenting the insurer’s payment of the
   73  landlord’s claim.
   74         b. The tenant retains any defenses against the insurer
   75  which the tenant would otherwise have against the landlord.
   76         3. A landlord may not accept payment from both a tenant and
   77  an insurer for amounts associated with the same rent, fees, or
   78  damages.
   79         (3) If a landlord offers a tenant the option to pay a fee
   80  in lieu of a security deposit, the landlord must notify the
   81  tenant in writing of all of the following:
   82         (a) That the tenant has the option to pay a security
   83  deposit instead of the fee at any time.
   84         (b) That the tenant may, at any time, terminate the
   85  agreement to pay the fee in lieu of the security deposit and
   86  instead pay a security deposit as listed in a rental agreement
   87  between landlord and tenant or, if a security deposit was not
   88  agreed upon in a rental agreement between the landlord and
   89  tenant, in the amount that is otherwise offered to new tenants
   90  for a substantially similar dwelling unit on the date that the
   91  tenant terminates the agreement.
   92         (c) Whether any additional charges apply for the options
   93  provided in paragraphs (a) and (b).
   94         (d)The amount of the payments required for each option the
   95  landlord offers.
   96         (e)That the fee is nonrefundable, if applicable.
   97         (f)That the fee is only for securing occupancy without
   98  paying a required security deposit.
   99         (g)That the fee payment does not limit or change the
  100  tenant’s obligation to pay rent and fees, if any, under the
  101  rental agreement or limit or change the tenant’s obligation to
  102  pay the costs of repairing damage to the premises beyond normal
  103  wear and tear.
  104         (h)That if the landlord uses any portion of the fee to
  105  purchase insurance, the tenant is not insured and is not a
  106  beneficiary of the landlord’s insurance coverage, and that the
  107  insurance does not limit or change the tenant’s obligations to
  108  pay rent and fees under the rental agreement or change the
  109  tenant’s obligation to pay the costs of repairing damage to the
  110  premises beyond normal wear and tear.
  111         (4)(a)If a tenant decides to pay a fee in lieu of a
  112  security deposit, a written agreement to collect the fee must be
  113  signed by the landlord, or the landlord’s agent, and the tenant.
  114  The written agreement may not contain any clause that
  115  contradicts s. 83.45 or s. 83.47. The written agreement must, at
  116  a minimum, specify all of the following:
  117         1.The amount of the fee, which may not be increased during
  118  the term of the rental agreement.
  119         2.How and when the fee is to be collected.
  120         3.The process and timeframe during which a tenant must pay
  121  the security deposit specified in the rental agreement if the
  122  tenant defaults on paying the fee, and that such default will
  123  not adversely affect the tenant’s credit rating if the security
  124  deposit is timely paid.
  125         4.That the written agreement may be terminated at any time
  126  as long as the tenant pays the amount of the security deposit
  127  specified in the rental agreement.
  128         5.If the tenant pays the amount of the security deposit
  129  specified in the rental agreement, then the tenant’s default on
  130  paying the fee or termination of the written agreement may not
  131  adversely impact the tenant’s credit report.
  132         (b)The written agreement specified under paragraph (a)
  133  must also include a disclosure in substantially the following
  134  form:
  135  
  136                   FEE IN LIEU OF SECURITY DEPOSIT                 
  137  
  138         THIS FEE IS NOT A SECURITY DEPOSIT, AND PAYMENT OF THE
  139         FEE DOES NOT ABSOLVE THE TENANT OF ANY OBLIGATIONS
  140         UNDER THE RENTAL AGREEMENT, INCLUDING THE OBLIGATION
  141         TO PAY RENT AS IT BECOMES DUE AND ANY COSTS AND
  142         DAMAGES BEYOND NORMAL WEAR AND TEAR WHICH THE TENANT
  143         OR HIS OR HER GUESTS MAY CAUSE.
  144  
  145         THE TENANT MAY TERMINATE THIS AGREEMENT AT ANY TIME
  146         AND STOP PAYING THE FEE AND INSTEAD PAY THE SECURITY
  147         DEPOSIT AS PROVIDED IN SECTION 83.491, FLORIDA
  148         STATUTES.
  149  
  150         THIS AGREEMENT HAS BEEN ENTERED INTO VOLUNTARILY BY
  151         BOTH PARTIES, AND THE TENANT AGREES TO PAY THE
  152         LANDLORD A FEE IN LIEU OF A SECURITY DEPOSIT AS
  153         AUTHORIZED UNDER SECTION 83.491, FLORIDA STATUTES. IF
  154         THE LANDLORD USES ANY PORTION OF THE TENANT’S FEE TO
  155         PURCHASE INSURANCE, THE TENANT IS NOT INSURED AND IS
  156         NOT A BENEFICIARY OF SUCH COVERAGE, AND THE INSURANCE
  157         DOES NOT CHANGE THE TENANT’S FINANCIAL OBLIGATIONS
  158         UNDER THE RENTAL AGREEMENT.
  159  
  160         THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF
  161         CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL
  162         RIGHTS AND OBLIGATIONS.
  163  
  164         (5) A fee in lieu of a security deposit may be:
  165         (a) A recurring monthly fee, payable on the same date that
  166  the rent payment is due under the rental agreement; or
  167         (b) Payable upon a schedule that the landlord and tenant
  168  choose and as specified in the written agreement.
  169         (6) A fee collected under this section, or an insurance
  170  product or a surety bond accepted, by a landlord in lieu of a
  171  security deposit is not a security deposit as defined in s.
  172  83.43(12).
  173         (7) A landlord has exclusive discretion as to whether to
  174  offer tenants the option to pay a fee in lieu of a security
  175  deposit and is not required to offer such fee option to tenants.
  176  However, if a landlord offers a tenant an option to pay a fee in
  177  lieu of a security deposit, the landlord may not use a
  178  prospective tenant’s choice to pay, or offer to pay, a fee in
  179  lieu of a security deposit as criteria in the determination to
  180  approve or deny an application for occupancy, and the landlord
  181  must also offer all new tenants renting a dwelling unit on the
  182  same premises the option to pay a fee in lieu of a security
  183  deposit, unless the landlord chooses to prospectively terminate
  184  the fee option for all new rental agreements.
  185         (8)(a) This section does not:
  186         1.Require a fee collected in lieu of a security deposit to
  187  be used to purchase an insurance product or a surety bond; or
  188         2.Prohibit a tenant from being offered or sold an
  189  insurance product or a surety bond to present to the landlord in
  190  lieu of a security deposit if the offer or sale of such
  191  insurance product or surety bond complies with the laws of this
  192  state.
  193         (b)Acceptance by a landlord of an insurance product or a
  194  surety bond that is purchased or procured by a tenant, a
  195  landlord, or an agent of the landlord may not be considered an
  196  offer on the part of the landlord to allow a tenant to pay a fee
  197  in lieu of a security deposit for the purposes of subsection
  198  (7).
  199         (9) This section applies to rental agreements entered into
  200  or renewed on or after July 1, 2023.
  201         Section 2. This act shall take effect July 1, 2023.