2nd Attempt

We are not going to cash the check. It is now evidence in what may have to be a small claims court case.

I composed the following to send back to him... (this is just the important parts....)

December 4, 2008

We received your response letter and check in the amount of $1,305.36 today.

We are acknowledging receipt of your check but will not be cashing it for several reasons.

1) It is a personal check, and we specifically requested a cashiers check or deposit directly into our account.

2) The check was not signed. As I’m sure you are aware, this makes it impossible to deposit or cash. (see attached picture of check to verify that there is NO SIGNATURE)

We are taking this as an intent to draw out these proceedings further.

As I mentioned in my previous communication with you, Florida Landlord Tenant Law Section 83.46(2), F. S., states

“…the landlord must either return your deposit within 15 days of termination of the rental agreement, if the landlord does not intend to impose a claim upon the security deposit; or justify in writing by certified mail, to the tenant's last known mailing address within 30-days upon termination of a rental agreement, as to why they are keeping a portion of or all of the deposit. If the notice is not sent as required within the 30-day period, the landlord forfeits his/her right to impose a claim upon the deposit…”

You referenced a telephone conversation made on October 25^th, at which time you were in Colorado, still within the United States of America. The only assumption we made from this conversation was that we would be receiving funds in good time. We asked if you had our address and you verified such. You did not imply that we would have to wait until you returned to the country to solve this problem.

As to the claims you made in your response letter, please again note the LAW of FLORIDA which states you must make your claim in writing within thirty days of termination of the lease. That would have been by November 18^th, 2008.

YOUR CLAIM TO THESE FUNDS is FORFEITED by your delay in submitting your claim.

Also stated in Florida Landlord Tenant Law Section 83.53(2 & 3), F.S.:

“…(2) The landlord may enter the dwelling unit at any time for the protection or preservation of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m….

(3) The landlord shall not abuse the right of access nor use it to harass the tenant.”

(landlord's brother)’s visit to the premises was not lawful, as he is not the landlord of the property under any written agreement or notification AND we received no notice of his visit. Furthermore, his “inspection” of the A/C filter and its state cannot be proved. We cleaned the filter monthly, AND cleaned it again before we departed the premises.

Furthermore, your claim of $619.32 for “lost rent from October 20, 2008 to October 31, 2008” is not legitimate. We turned the keys over to the new tenant on Saturday afternoon, October 18, 2008. It is not our responsibility when the new lease began or when they chose to move in. You asked us to surrender the keys to the new tenants.

I do not believe there is any agreement within our lease that stated that we would pay advertising fees upon vacating the property, therefore we also deny your claim for $52.00.

We have the final bills for water, sewer and garbage and have been intending to pay them with the funds we were expecting back from you. If you wish to deduct the $123.32 we WILL accept that deduction.

Any issues with your A/C unit are not our responsibility, as we cleaned the air filters faithfully. Furthermore, I believe that your house has a mold problem, as evidenced by the fact that I developed a fungal infection ON MY FACE within about a week of moving into the property and even after a doctor visit, steroids and anti-fungal remedies it did not clear up until vacating the property. At no time did I request compensation for these medical fees or time lost due to the fact that I could not work some days because upon awaking my eyes were SWOLLEN SHUT.

Per Florida statue 83.51 section 1, a:

“…Comply with the requirements of applicable building, housing, and health codes…”

And section 2,a,1:

“…Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:

1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the rent. The tenant shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph.

2. Locks and keys.

3. The clean and safe condition of common areas.

4. Garbage removal and outside receptacles therefor.

5. Functioning facilities for heat during winter, running water, and hot water. …”

This type of issue is an EPA and health code violation and I have no qualms about adding it to our suit should it become relevant.

I am again requesting payment. Please do not take this request lightly. You have FORFEITED your claim to our money by not serving your claim IN WRITING by November 18, 2008.

Once a cashiers check or deposit is received, we will return your unsigned check to you. In the meantime we are holding it as evidence in what will end up being a small claims court case if this is not resolved immediately.

...And I cc'd the attorney I spoke to yesterday at the bottom. I really don't want to have to go to small claims court, the court fee would be $300 and it would cost us money to travel to Key West to GO to court. But if we have to, we have to.