Security deposit

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.

Non-refundable fees

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?

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

Before you move out, you should provide written notice that you don’t plan to renew your lease. A sample notice of nonrenewal is below. Check your lease to find out how many days in advance you must provide notice. Almost all leases, such as the Texas Apartment Association lease, require at least thirty days’ notice of intent not to renew.  Some landlords require in the lease that the tenant give sixty days’ notice of intent not to renew.  Keep a copy of the notice for yourself.

You should also give the landlord a written notice of your forwarding address as soon as you know it (this could be a trusted friend or family member’s address). It can be in the same notice as your intent not to renew or it can be done separately at a later time. It is best to have the landlord sign acknowledging receipt of the forwarding address. A landlord must be given a forwarding address before you can take legal action against a landlord who does not return 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, they might be more tempted to keep your deposit.

Step 2: Clean, do a walk-through and take pictures

Be sure to clean all the rooms 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 if they will charge you for any damage. Keep in mind that you do have the right to try to fix or clean anything yourself that you feel you should. This could reduce or eliminate the amount of the deductions. 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.

Don’t forget to return your keys to the landlord when you move out!  If you do not return the keys, the landlord may continue charging rent on the belief that you have not surrendered possession. 

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 and provide you with an itemized list of any deductions. If you do not receive your full security deposit, the landlord is legally required to provide you with an itemized list of deductions the landlord took from the deposit. If they don’t do so in bad faith, they owe you the whole security deposit (Sec 92.109b, Property Code)

What can I do if I don’t get my security deposit back after 30 days?

Option 1: 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 can write a demand letter asking for the return of your security deposit. Try this before bringing the matter to court.

If you want to write the letter yourself, here’s what you should include:

  • Your forwarding address, again.
  • Suggest that you will seek legal remedies if the landlord does not refund your security deposit within [insert number of days] of the date of the letter. 
  • You might also demand that the landlord show proof of any work done to the apartment unit including pictures, receipts and work orders.

Option 2: If you do not receive a response or you think the response is unreasonable, you can file a lawsuit in court to try to recover your security deposit. It is easy to do, and the best way to get action.

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.