A substantial number of Texans rent their home, but very few understand their rights when it comes to their security deposit. Worse yet, many landlords don’t understand tenants’ rights when it comes to the security deposit either. I’ve handled a number of cases in which I have represented a tenant against a landlord who has wrongfully withheld some or all of the security deposit.
What should you do to protect yourself? Here are a couple of tips, including references to the law as appropriate:
- When you move into a new residence, try to document any pre-existing damage. If your landlord used a Realtor to list the property for rent, there is a good chance that the Realtor (or your real estate agent, if you used one) will provide you with a form that can be used to list those damages. I would recommend going one step further – photograph or videotape the damage. Be sure you have sufficient light for the damage to appear in the photos or in the video. If you use video, feel free to provide verbal commentary as to what is being recorded.
- Promptly report any need for repairs as they become apparent. Be sure to contact your landlord about the need for repair and send a letter to your landlord. Make sure you keep a copy of the letter in a file in a safe place. If the landlord fails to make a needed repair, be sure to contact them again and send another letter, also keeping a copy of that letter for your records.
- Carefully read your lease to determine what sort of notice your landlord wants before the lease ends. Some leases continue on a month-to-month basis if you don’t notify your landlord of your intent to move out within a certain period of time before the lease is scheduled to end. If the lease has no such provision, it is a good idea to give at least 30 days notice of your intent to move at the end of the lease. In any event, you should provide a forwarding address to your landlord as part of this letter. If you’re unsure of where you will be living next, you may provide a P.O. Box, work address, or even a friend or relative’s address where you may receive mail.
- When you move, be sure to clean the residence as best as possible (if need be, hire a maid service to do a “make ready” cleaning). Once the residence is completely clean and all of your possessions have been moved out, carefully document everything in the apartment. This is where a camcorder can come in handy to show the condition of the apartment. Moreover, you should again ensure that there is sufficient lighting so that the condition of the apartment is apparent from the video.
- Once you have moved out, be sure to provide the keys to your landlord to the address provided in the lease. If there is no such address in the lease, provide your keys to your landlord wherever you pay rent. If you pay rent to an address where this isn’t feasible (such as an out-of-town address or a P.O. Box), be sure to mail the keys to your landlord by certified mail, return receipt requested. Be sure to keep the receipt from the post office to show the date you returned the keys.
- Note on a calendar the date you moved out, and also note the date 30 days from the day you moved out. Your landlord is required to return your security deposit no later than 30 days from the date you surrendered the leased premises (Section 92.103(a) of the Texas Property Code). If, however, there are damages to the residence other than what is caused by normal wear and tear, the landlord may deduct the cost of repairing the damage from the deposit. The landlord, however, must provide the remainder of the deposit, if any, and must provide “a written description and itemized list of all deductions” within 30 days of the date of surrender of the premises (Section 92.104 of the Texas Property Code).
Now, what happens if your landlord doesn’t comply with these requirements? Let’s say you move out, you provide notice of your forwarding address as required by the lease, you turn your keys over to your landlord at the end of the lease, and you have paid all of your rent as required by the lease. 30 days from the day you surrendered the premises to your landlord have come and gone, and no deposit has been provided. Don’t jump to conclusions quite yet. The landlord is required to place the deposit and/or written accounting of deductions in the mail within 30 days, so give it a little while longer.
If you still have no deposit or no itemization well after 30 days, the Texas Property Code considers such a withholding of the deposit to be in “bad faith” (Section 92.109(d)). Unless the landlord is able to rebut this presumption of bad faith in court, you could recover from your landlord $100, plus three times the wrongfully withheld security deposit, plus court costs and attorney’s fees. (Section 92.109(a)). Moreover, your landlord will be barred from collecting any amounts that would have legitimately been due to him or her for damages.
Keep in mind as well that it is your landlord’s burden of proof, not yours, to prove his or her damages in court. That will be very difficult if they don’t have documentation showing the damages. Also, if the damages are the result of normal wear and tear, you as a tenant cannot be held responsible for that. It’s simply the cost of doing business as a landlord.
If you are careful in documenting the condition of your home before you move and and after you move out, you will have a jump start on protecting yourself from false allegations of damage to leased premises. Also, if you keep in mind the requirements of the Texas Property Code and carefully read your lease, you will probably also have an advantage over your landlord who may take those provisions for granted.
