Most of us have had the experience of renting residential property. Very few of us are fortunate enough to have gone from our parents’ home to our own right off the bat. This means leases, landlords, and security deposits.
The focus of this article is to answer some very common questions for both landlords and tenants regarding security deposits. Please keep in mind that The Moon Law Firm handles any and all landlord/tenant issues both in and out of court. If there’s any questions you have please contact us at 713-999-9398 or at JMoon@MoonLawFirm.com.
“What exactly is a security deposit?”
A security deposit is any advance of money, other than a rental application deposit or an advance payment of rent that is intended primarily to secure performance under a lease of a dwelling that has been entered into by a landlord and a tenant. According to the Texas Property Code, anything given to a landlord primarily to secure performance under a lease agreement is a Security Deposit. Usually a deposit is a sum of money given to a landlord by a tenant to be used to repair damages to the property caused by the tenant’s residency in the property.
“When does a landlord have to refund a deposit?"
Once the lease term has expired, a tenant must give the landlord a written statement of the tenant's forwarding address for the purpose of refunding the security deposit. If the tenant does not provide this WRITTEN notice the landlord does not have to follow the usual rules regarding the refund of the deposit. However, if the tenant does not provide the landlord with this written notice of forwarding address, the tenant HAS NOT forfeited the right to a deposit! This simply means that the landlord cannot be held liable if he/she doesn’t provide the tenant with the deposit and statement of damages in a timely manner.
Assuming the tenant has sent the landlord a timely notice of the forwarding address, the landlord must refund your security deposit on or before the 30th day the tenant leaves the premises.
“When can a landlord keep a security deposit?"
A landlord can withhold amounts to repair damages for which the tenant is legally responsible under the lease or as a result of breaching the lease agreement. This means that, if the tenant damages the premises, the landlord can withhold from the security deposit amounts for repairing that damage.
“What about normal wear and tear?"
A landlord may not withhold amounts from the security deposit for wear and tear.
"What the heck is normal wear and tear anyways?"
"Normal wear and tear" means deterioration that results from the intended use of a dwelling, including, 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 property by the tenant, by a member of the tenant's household, or by a guest or invitee of the tenant.
"Doesn’t a landlord have to give a statement of the damages?"
Yes. If the landlord retains any portion of a security deposit, the landlord must give the tenant any remaining portion of the deposit and a written description and itemized list of all deductions. The landlord is not required to give the tenant a description and itemized list of deductions if the tenant owes rent when he surrenders possession of the premises and there is no controversy concerning the amount of rent owed.
This means that unless all parties involved do not dispute that there is rent owed, a landlord must provide an accounting. A landlord is presumed to have refunded a security deposit or made an accounting of security deposit deductions if, on or before the date required under this subchapter, the refund or accounting is placed in the United States mail and postmarked on or before the required date. Furthermore, the landlord must maintain accurate records for security deposits.
"What happens if a landlord withholds a deposit?"
A landlord who doesn’t refund the security deposit or provide a detailed accounting within the 30-day deadline is presumed to be acting in bad faith. This means that the landlord may be subject to triple the amount of the withheld portion of the security deposit as well as the tenant’s attorney’s fees. Furthermore, the landlord forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises.
"Is a security deposit last month’s rent?"
No. A security deposit with the landlord does not mean that the tenant does not need to pay the last month’s rent. A tenant who withholds the last month’s rent on the basis of the security deposit is presumed to have acted in bad faith and may be liable for triple the usual amount of damages.
If you have any questions about landlord/tenant issues, The Moon Law Firm can help! Please contact us at 713-999-9398 or at JMoon@MoonLawFirm.com