Attorney Trey Wilson - RL Wilson Law

16 September 2008


What is the purpose of a security deposit?

The security deposit law serves as a protection for the landlord. The deposit can be used to cover costs for which the tenant is liable by providing some sort of collateral to protect a landlord's property against abuse by the tenant and by recapturing actual financial losses as a result of the tenant's breach of a lease. Texas law protects the right of renters to get their deposit back.

Can I assume that my security deposit will automatically cover the last month's rent?

No, not automatically. Normally, the tenant cannot deduct the security deposit from the last month's rent without permission from the landlord. Assuming that the security deposit will cover the rent / balance of the rent and therefore withholding payment, constitutes a lease violation for which the tenant may be evicted. In addition, a tenant who withholds the last month's rent may be liable for an amount equal to three times the amount of the rent wrongfully withheld and the landlord's reasonable attorney's fees.

I've just moved out of my rental unit. When can I expect to receive my security deposit?

According to the Texas Property Code, a tenant has the right to receive his / her security deposit (or the balance of the security deposit with a list of itemized deductions) on / before the 30th day after leaving a dwelling, provided the tenant has given the landlord written notice of her forwarding address for the return of her deposit. For more information, see Procedure to Refund.

Are there any qualifications to my receiving my security deposit?

Yes. You should receive your security deposit provided you have met the following conditions:

Your lease term has ended
You have given thirty days written notice prior to leaving the dwelling
You do not owe any back rent or other charges
You have not damaged the apartment in excess of normal wear and tear

Is it true that if I do not provide my forwarding address, I lose my deposit?

No, but the landlord is not required to return a deposit until 30 days after the tenant
moves out or 30 days after the landlord receives the tenant's forwarding address in writing.

I've received my security deposit, but not the full amount. Is my landlord required to provide an itemized account of deductions?

Yes, unless the tenant owes rent and there is no dispute over the amount owed. Otherwise, the landlord must provide an itemized list of deductions within 30 days. If the landlord doesn't include an account of itemized deductions within 30 days, s/he may forfeit the right to withhold any part of the deposit and may be liable for court costs, statutory penalties and attorney's fees. If the deposit is not returned in full within 30 days, and the court finds that the landlord acted in bad faith, the landlord can be held liable for $100 and three times the amount of the deposit wrongfully withheld, plus attorney's fees and court costs.

Can the landlord deduct from my security deposit for normal wear and tear on the unit?

No. Landlords cannot charge for normal wear and tear on the apartment. For example, the landlord should not charge for such routine procedures as shampooing the carpet or painting the unit, unless there are egregious stains, damages, etc.

If my landlord fails to return my deposit within 30 days, can I receive more than the amount of the security deposit?

Not necessarily. A tenant will receive more than the amount of the security deposit only if it can be proven in court that the landlord acted in bad faith.

My rental unit is about to be sold. Will I lose my security deposit?
No. Under Texas law, there is no requirement that the landlord put the security deposit into an escrow account to be transferred to the new owner. Nor is there an automatic transfer of security deposits to new owners. The old landlord is still responsible for returning all security deposits to tenants until the new owner gives the tenant a signed statement that s/he has received and is responsible for the security deposits.

I've decided not to take an apartment, after all, despite signing the lease. Can I get my security deposit back?

Texas does not have a Buyer's Remorse Law, so the lease becomes binding as soon as it is signed. Many rental application forms allow the landlord to keep the entire deposit if the tenant is approved and then decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord is entitled to recover out-of-pocket expenses (including advertising and lost rent) after taking the property off the market.

However, if the tenant secures a replacement tenant, approved by the landlord, the landlord may not keep the deposit if the replacement tenant occupies the unit by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, s/he may keep a sum agreed to in the lease as a cancellation fee or the actual expenses incurred by the landlord.

Trey Wilson --Named By Scene in SA Magazine As One of San Antonio's Best Real Estate Litigation Attorneys -- September 2008 -- As voted on by peers