Security Deposit

Overview

A security deposit is money given to a landlord to provide some protection to a landlord in case of damage to the rented premises or for some other failure of a tenant.

A security deposit should not be confused with an Application Deposit or some other fee. Advanced rent (like first month or last month's rent) is not generally a part of a security deposit either. The rules and suggestions in this section are only for security deposits. A pet deposit is an additional security deposit usually required if you want to keep a pet on the premises. The same rules that apply to regular security deposits apply to pet deposits.

Texas tenant protections are weak

Because of the lack of any regulatory laws in Texas, landlords are legally free to treat security deposits as their own the moment they receive them. Few landlords keep security deposits in separate accounts for return at the end of the leases. If they go bankrupt or are foreclosed on by a lender, tenants' security deposits are almost always gone.

Non-refundables

A "nonrefundable deposit" is a contradiction in terms. In most cases, landlords have no intention of ever giving a nonrefundable deposit back. Texas law (Section 92.006(a) of the Texas Property Code) voids lease agreement provisions that attempt to give away tenant rights regarding security deposits found the statutes; thus, it is a little unclear if a "nonrefundable deposit" is actually enforceable. It would be an uphill battle to say the least.

Don't use deposit as rent

Do not use your deposit as rent for the last month of your lease. There are very few exceptions to this rule, and even when the law allows it, landlords usually file eviction suits if you try it and give tenants negative credit histories. Also, if you wrongfully use your deposit as the last month's rent you can be liable for three times of the rent wrongfully unpaid. Section 92.108, Property Code. It is much better to wait and sue the landlord if it wrongfully keeps your deposit.

How much is too much?

There is no limit on how much a landlord can charge for a security deposit. It should not vary based upon your race, color, religion, sex, whether you have children, or national origin, or disability.

Never moved in

If you signed a lease and gave the landlord a security deposit, you may still get your deposit back if you never moved in. But you only can get the these back if you find another tenant acceptable to the landlord to move in or the landlord finds a replacement tenant. Section 92.103, Property Code. If the landlord finds the replacement tenant, the landlord can deduct a cancelation fee if it is in the lease (TAA's lease calls these "reletting fees" which are usually 85% of a month's rent); or if it is not in the lease, the landlord can deduct the actual expenses of finding the new tenant. Keep in mind that a landlord does have a duty to find a replacement tenant should the current tenant not go through with their lease. This is called their "duty to mitigate."

If neither you nor the landlord find a replacement tenant, then you need to be more concerned about the rent owed under the lease contract, than whether you are going to get your deposit back. Most landlords agree to let tenants out of their lease if they agree to forfeit the security deposit and pay the landlord one month's rent. But this is negotiable. For a more complete explanation see Terminating the Lease.

So, knowing this, you might want to know how to get a security deposit back after you move out.

Getting One Back

Step 1: Give notice of your intent not to renew your lease and forwarding address

Before you move out, you should provide written notice of your intent not to renew your lease. Check your lease to determine how many days in advance you must provide notice. Many leases, such as the Texas Apartment Association lease, require at least thirty days. Keep a copy of this notice.

You should also give the landlord a written notice with your forwarding address as soon as you know what it is. It can be in the same notice as your intent not to renew or it can be done separately at a later time. A landlord must be given a forwarding address before you are entitled to get back a security deposit. It is never too late to do this.

Tip: The forwarding address can be any place that you can be sent mail. It can be a friend or relative for example. If you are moving out of town, it is best to leave a local forwarding address. If the landlord thinks you are leaving town, it might be more inclined to keep your deposit.

Step 2: Do a walk through and take pictures

Be sure to clean all rooms out when you leave. Clean the bathrooms, kitchen, and appliances, including floors and walls. By law, you are not responsible for damage caused by normal wear and tear, but the better condition you leave the rental unit in, the less likely the landlord will deduct maintenance and repair expenses from your security deposit.

Shortly before you move out, do a walk through of the rental unit with your landlord. If you cannot get your landlord to come with you, get a witness to do a walk through with you. Ask the landlord about the damage for which it intends to charge you. Keep in mind that you do have the right to try to fix anything yourself that you feel you should. This could reduce or eliminate the deduction. It is best to discuss this with your landlord first and get their written agreement that they will not charge you if you address the problem.

Take pictures of the rental unit to document the condition in which you left it. Some tenants even take the pictures with the front page of that day's newspaper to prove the pictures were taken when the tenant moved out as opposed to when the tenant moved in. Photos are easy to show other people; videos are hard to store, move and show.

Also, don't forget to return your keys to the landlord when you move out.

Step 3: Wait 30 days

Within thirty days of moving out and providing written notice of your forwarding address, the landlord is required to return your security deposit. If you do not receive your security deposit in full, the landlord is required to provide you with an itemized list of deductions the landlord took from the deposit. For example, the landlord can deduct for things you, occupants and guests caused beyond normal wear and tear such as patching up large holes you knocked in the wall.

The landlord cannot charge for damage not caused by you, occupants and guests, or damage from normal wear and tear. For example, replacing carpet just because it is worn, repainting cracked or old walls, replacing old appliances or old light fixtures. The landlord also cannot charge for things already present when you moved in.

Step 4: Send a demand letter

If you waited thirty days from the date you moved out and provided a forwarding address, but you still have not recovered your security deposit or an itemized list of deductions you might write a demand letter asking for the return of your security deposit. Try this before bringing the matter to court.

In the letter, include your forwarding address again and suggest that you will seek legal remedies if the landlord does not refund your security deposit. You might also demand that the landlord show proof of any work done to the apartment unit including pictures, receipts and work orders.

You might wait ten days to see if the landlord responds. If you do not receive a response or you think the response is unreasonable, you may to file a lawsuit in court to try to recover your security deposit. It is easy to do, and the best way to get action.

Common Question: If your landlord gives you some of your deposit back using a check, but wrongfully makes some deductions, do you cash the check? The answer is unclear. There is some risk if you cash it because the landlord will claim that you agreed with the amount refunded; however, there are some case decisions in Texas which say cashing the check does not prevent you from suing for the rest. If you want to cash the landlord's check and take the risk, at least mark through any language on the check which says "Final settlement of deposit" or anything else like that, and put in its place "Partial refund, all rights reserved." Then sue the landlord for the amount improperly withheld, plus penalties and costs. If the landlord is found to have withheld some amount in bad faith, the landlord cannot take any deductions from the deposit at all, and you are entitled to three times the amount of the deposit.Filing a lawsuit

If the landlord has failed to either provide you with the security deposit or an itemized list of deductions within thirty days from moving out, the law may allow you to collect $100, three times the amount of the security deposit wrongly withheld, court costs, and attorney's fees. If the landlord improperly made deductions from the deposit you also have the opportunity to obtain the same damages and penalties. Section 92.109, Property Code.

Exception: Please note that if you left the property owing rent and you do not dispute this, the landlord is not required to give you an itemized list of deductions. Also, if the landlord has a good reason for the delay (such as being hospitalized or having the wrong address), you probably will not be able to recover extra penalties for the delay in refunding your security deposit.

If the landlord acted in bad faith, then the landlord by law cannot make any deductions to the deposit whether or not you damaged the premises. Section 92.109(b), Proeprty Code.

Filing suit for your deposit is easily accomplished in the justice court (also known as the Justice of the Peace or JP court). We have provided a form lawsuit petition to make it that much easier. Do not be afraid to file suit. It is not wrong or improper to seek the help of an independent person to help decide who is right in a dispute.

Forms

Notice of Nonrenewal

Demand Letter to Landlord

Lawsuit Petition for Justice Court