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.