An extremely common complaint by renters all over Texas is that the landlord is not being fair or transparent when it comes to returning your security deposit after you move out. This is such a common issue that plenty of people entirely forget about even thinking of the security deposit as if it were their own money once they pay it to the landlord, much less demanding it back after they move out. However, the laws and rights granted to every Texan in the Texas Property Code says differently. So, let’s take a look at the law, what you should do at move-in and move-out to get your deposit, and then your options if your landlord is not abiding by the law.
First things first, the actual law on security deposits
Texas Property Code Chapter 92 contains nearly all of the state law regarding residential leases. Bookmark that if you have to as those pages contain a huge amount of rights renters have in this state, but rarely end up being used. The very first law thing to look at is 92.107 of the property code which says that the landlord does not have to refund a security deposit unless you: Give the landlord—in writing—your forwarding address that they need to send your refund to. 92.103 says a few more things:
- The landlord has 30 days from the day you leave the premises to refund the security deposit
- As long as you have also provided them a forwarding address to send the deposit to; and
- Any clause in your lease saying that you have to give advance notice of you leaving in order to get your deposit back is not enforceable unless the clause is either in conspicuous bold print or unless the clause is underlined.
Can’t stress this one enough: READ YOUR LEASES ALL THE WAY THROUGH! That’s a lot of bold print there and that was all caps and I did that for a reason. If you can’t say what you agreed to in your lease then you likely will not win a fight over whether your money has to be returned.
Now, the important part, when can the landlord keep part or all of your deposit? Well, according to 92.104 the landlord must give you a detailed and itemized list of deductions if he is withholding ANY of your deposit as long as you don’t owe rent at the time that you give back the premises. He is allowed to deduct:
- Damages or charges that you are legally liable for under the lease or as a result of breaking the lease; and
- He may not deduct from the deposit for things that qualify as ordinary wear and tear
What is Wear and Tear?
92.001(4) defines wear and tear as: “deterioration that results from the intended use of a dwelling, including, for the purposes of Subchapters B and D, breakage or malfunction due to age or deteriorated condition, but the term does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant, by a member of the tenant’s household, or by a guest or invitee of the tenant.”
Now this topic can get a little tricky, but, in general the legislature of Texas believes that you should not be getting charged out of your security deposit for things like the carpet being faded and some hinges being worn out from use over the 2 years you leased a unit. The easiest way to think about wear and tear is just by asking yourself: Would the thing look any better if someone else had rented and used the property for the same amount of time, or would it be this way if literally anyone lived there and made normal use of the property? We all know that some things just get worn out and start to fade and stop working.
What things should you do to protect yourself from having your deposit wrongfully withheld?
The good news is, there is a pretty simple list of things to do at move-in and right before moving out that will protect you from unscrupulous landlords unlawfully withholding your deposit.
Things to do when moving in:
- All caps again here: READ YOUR LEASE! ALL OF IT!
- Take photos of everything on day one, during the day while the sun is out and there is good lighting in the property. This means photos of the walls, the carpet, the flooring, the bathroom tiling, the sink, the kitchen wall and surfaces, the bedroom and closet, all of it. You should have at least 2 dozen photos for even a small unit.
- Any problems or deformities or broken things you find need to be sent to your landlord’s attention in writing. If they give you an apartment where part of the carpet is stained orange in one spot, don’t just take a picture, you tell them in an email or even using USPS certified mail, just make sure it is in writing and that you have your proof.
- Report in writing anything that breaks down during your lease so it can be documented and repaired.
Things to do when moving out:
- Have all of your rent paid.
- If your lease says you have to give advanced notice that you are leaving, then give advance notice in writing in a way that you can prove such as certified mail or by using an email.
- At the same time that you write them that you are leaving, include your new forwarding address for them to send your deposit to, that way you kill 2 birds with one stone using a single email/letter.
- Move all of the furniture out and spend a solid afternoon just cleaning everything, that means vacuuming carpet, sweeping out and mopping hard floors and tile, dusting surfaces, moving appliances like the stove or refrigerator and sweeping under there, etc. You are returning someone’s property; you do owe it to them to return it in proper shape after all.
- When you’re done, take photos of everything again. Photograph the exact same locations as your photos from moving in show. Compare the photos and make sure that the before and after look near identical. If they don’t then determine if the reason that they don’t falls under wear and tear or not.
- Make sure you get either your deposit or an itemized accounting within 30 days of moving out from your landlord.
What if you’ve done everything right but the landlord still won’t return the deposit? Or even return your phone call at all?
Well, the only answer to give here that’s always right is: contact an attorney that deals with these issues. At that point we are talking about someone not following the law, and likely not following their own contract with you. Of course, every Texan is perfectly free to pursue their own matters in court without an attorney and in some instances, I actually recommend it because we are certainly not cheap and some things are very straightforward even for non-attorneys to do in court. However, in this specific situation there are several advantages to getting an attorney.
- Often just getting a letter from a real law firm will scare a landlord into remembering their legal obligations and returning your money.
- The Texas Legislature has provided some amazing incentives in the law to assist renters in getting an attorney to go after these landlords.
- An attorney knows what additional things can be sued for as well such as other sections of the property code violated, breach of contract, fraud and the dozens of other causes of action available in Texas.
- If you are in the right, the law says that the landlord is required to pay for your attorney’s fees!
- Here in Texas, we can have a jury trial for almost anything that goes on in court compared to all other states. This is also one of those areas, so a jury made up of 6 people from your own community can hear your evidence and the landlord’s and decide who they believe.
Finally, lets take a look at what the law does say happens when your landlord is unlawfully trying to withhold your deposit from you.
Section 92.109 lists off exactly what you are entitled to if your landlord wrongfully (bad faith) withholds your deposit or fails to give you an itemized and detailed list of deductions:
- Loses the right to collect any of the deposit or sue you for damages to the premises (for not sending an itemized list specifically)
- The landlord has the burden of proving in court that any deductions were reasonable ones
- Any landlord who hasn’t provided the deduction or refund within 30 days of you leaving and providing notice is going to be presumed in court to be acting in bad faith and must prove in court that they were not acting in bad faith
- If the landlord loses they automatically owe you: TRIPLE THE DEPOSIT WRONGFULLY WITHHELD, your attorney’s fees, costs of court and $100.
A quick example to explain how powerful that law actually is.
Let’s say that you rent a home in Belton, TX and pay a security deposit of $1,800, one month’s rent for the house. Now, you are a responsible tenant so of course you follow all of the tips you read here from Masin Law and you read your whole lease, take a ton of pictures before you move in, send everything to them in writing, give them a heads-up 2 years later when you’re leaving along with a forwarding address, then you clean and scrub all over, take pictures, compare the before and after and then wait. 2 weeks later you receive an email explaining that not only will you not be getting your deposit back, but you actually owe an additional $197.37. You read the itemized list that they attached and realize that they charged you a $350 “apartment cleaning fee”, charged $1,200 claiming that the carpet was so worn, faded and discolored that they had to replace it entirely throughout the house, and then just a sprinkling of smaller charges throughout the rest of the statement. Instead of calling them up and cussing them out though, you take a deep breath and call Masin Law, explain about what happened and have the before and after pictures and we agree to help you out since you’re in the right and we can easily prove it. A threatening letter to your landlord from our firm doesn’t work so instead we go ahead and sue him. We file a lawsuit, get him served, demand a jury and a full-blown trial right there in Belton. Then we win because you did what you were supposed to do and chose an attorney wisely. At the end of that trial you will hear the judge announce:
“Now Mr. Landlord, the jury has found that you in bad faith withheld these people’s $1,800 deposit. Therefore, you now owe them $5,400, court costs, an additional $100, and you must pay the fees they owe to Masin Law who they had to hire to sue you.”
So, in total you walk away from that whole drama with $5,500 in your pocket, all because you did all the correct things you were supposed to do upfront, and your landlord did not do the same and tried to keep your $1,800.
DISCLAIMER: As usual, please remember all of this information is a guide meant to generally educate everyone. Do not take this as specialized advice for you personally or as something forming an attorney-client relationship between yourself and our firm. This is meant to give you very helpful and readable broad strokes. If you do need something more tailored and reliable for your specific situation then please go to the page for Contacting Us and fill in the appropriate form and we can arrange that for you as well.