Check out this video with Texas Rio Grande Legal Aid’s Robert Doggett explaining your rights when it comes to security deposits.
What is a security deposit?
A security deposit is money a tenant pays to a landlord when they move in. It provides some protection to a landlord in case of damage to the rented property or for some other failure of a tenant. If you follow your lease and don’t damage the property, you should get your security deposit back when you move out (more below).
A security deposit is not the same as an application deposit or some other fee. Advanced rent (like first month or last month’s rent) is not a security deposit either. The rules and suggestions in this section are only for security deposits.
Do security deposit rules apply to pet deposits?
Not necessarily. A pet deposit will be governed by the pet deposit agreement with the landlord. Sometimes landlords charge a nonrefundable pet deposit. In other cases, the pet deposit is refundable. If the pet deposit agreement states that it is refundable, depending on whether the pet has caused damages, then it is likely that the security deposit statute applies.
Some landlords will charge tenants a nonrefundable fee, such as a fee for cleaning. Such fees are legal if clearly disclosed to the tenant as part of the leasing process. They represent part of the cost of leasing the unit and are different from a security deposit which is designed to ensure compliance with the lease.
Don’t use the security deposit as rent.
Do not use your deposit as rent for the last month of your lease. Landlords usually file eviction suits if you try it and will 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 the “unpaid” rent if you did so in bad faith. See Section 92.108, Property Code. It is much better to wait and sue the landlord if they wrongfully keep your deposit.
How much can a landlord charge for a security deposit?
There is no limit on how much a landlord can charge for a security deposit. The security deposit should not be different from other renters’ security deposits based upon your race, color, religion, sex, familial status (whether you have children), or national origin, or disability (see Discrimination).
Can I get my security deposit back if I never moved in?
If you signed a lease and gave the landlord a security deposit, you may be able to get your deposit back if you never moved in. But you can only get it back if you find another tenant acceptable to the landlord or the landlord finds a replacement tenant who moves into the unit before the lease starts. See Section 92.1031, Property Code. If the landlord finds the replacement tenant, the landlord can deduct a cancellation fee if the amount is set forth in the lease (Texas Apartment Association’s lease calls these “reletting fees” which are usually 85% of a month’s rent). If the amount of the cancellation fee is not set forth in the lease, the landlord can deduct the actual costs of finding the new tenant, including a reasonable amount for the time of the landlord in obtaining another tenant. Keep in mind that a landlord does have a duty to try 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 are legally liable for the rent owed under the lease contract until the landlord leases it to another tenant. Many landlords will 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 Ending your lease.
How do I get my security deposit back? (form letter here)
What can I do if I don’t get my security deposit back after 30 days? (form demand letter and lawsuit petition here)
For what damages can the landlord deduct the cost of repair from the security deposit?
The landlord can deduct for the cost of repairing things you, your occupants, and guests caused beyond normal wear and tear, such as patching up large holes in the wall or cleaning or replacing severely damaged or dirty carpet. The landlord can only legally keep part of your security deposit if they send you an itemized list of all the deductions they made.
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 repairing conditions that existed when you moved in.
My landlord didn’t give me my whole deposit back and I think they should have. Should I cash the check?
The answer is unclear. There is some risk if you cash it because the landlord can argue that you agreed with the amount they 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, you should 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 in bad faith does not provide a written description and itemized list of damages and charges, the landlord cannot legally keep any of it and forfeits the right to sue for damages. If the landlord is found to have withheld all or part of the deposit in bad faith, the landlord is liable for an amount equal to $100 + three times the deposit they wrongfully withheld + any attorney fees you paid. See Section 92.109, Property Code.