Long story short...

Moved into a house and put down a $400 deposit. Moved out with the place nicer than when I left. Called landlord many times about deposit and always says he would look into it and call me back (which he has NEVER done). Called landlord 5th time and he asked me if I left a new address...I say no and that I will drop off the new address by his house (why he didn't advice me to do this the first 4 times I called is beyond me). Called a couple weeks later and I get the usual "that check should be in the mail...I'll call you back." It has now been over 6 months since lease was up and over 1 month since leaving a new address.

He owns many houses in my city but blames everything on the management company he uses...advice would be greatly appreciated.

anyone????

anyone????

Small claims court. Don't forget pictures of before and after you left the property, so he can not claim any damage that has taken place since you left. You can, if you win, also get paid for the court costs, and the loss of work for the day in court only.

This is long, but I think it covers everything.

The Texas Property Code, §92.101 - §92.109, protects the right of renters regarding their security deposit. Unfortunately, many tenants are unaware of this law and do not receive a proper refund of their deposit. The law states that the landlord has 30 days after the tenant surrenders the premises to refund the security deposit. If the tenant fulfills the lease contract, the security deposit is always refundable; a tenant can never waive their right to a refund of the security deposit. However, the landlord can keep part of the deposit if the lease states that a "redecorating fee" or a "make-ready fee" will be deducted from the deposit. If the landlord retains all or part of a security deposit, the landlord is required to give to the tenant a written description and itemized list of all deductions providing the tenant meets certain conditions. These conditions are:



1. Rent Owed? A landlord is not required to give the tenant a description and itemized list of deductions if the tenant owes rent when the tenant moves out and there is no controversy over the amount of rent owed. If the landlord claims the tenant owes rent and the tenant disputes the claim, the tenant should make a written request for the deposit which states the tenant’s position about the rent.

2. Forwarding Address. The landlord is not required to return a deposit until 30 days after the tenant moves out and only if the tenant gives the landlord the tenant's forwarding address in writing. However, the tenant does not forfeit the right to a refund of the security deposit or to receive a description of damages just because the tenant forgot to turn in a written forwarding address. Send the forwarding address certified mail, return receipt requested.


Preventative Steps to Take to Ensure a Deposit Return
A tenant must meet all of the above conditions to ensure a refund of the deposit, but meeting those conditions is not all the tenant should do. The chances of receiving return of the deposit will be increased if the following suggestions are also followed:

Move-in Inventory Inspection. Arguments often arise over what condition the rental unit was in when the tenant moved in, so preventative measures should be taken. The tenant should make a list of everything that is broken, stained, defective, or damaged when moving in. The tenant should sign the list and ask the landlord to sign it too. If the landlord will not cooperate, taking pictures, video and/or getting an impartial witness to view the apartment during the move-in is an alternative. The tenant should send a copy of the list to the landlord and keep a copy.

Move-Out Notice. A lease may require that the tenant give the landlord 30 days written notice prior to move-out in order to get the security deposit back. Texas Property Code says that advance notice of move-out can be a condition for return of the deposit if the requirement for advance notice is written into a lease and is underlined or in conspicuous bold print. Even if the lease does not require it giving the landlord notice prior to moving is always a good idea.

Move-out Inventory Inspection. When the tenant prepares to move, the apartment should be cleaned and the landlord asked to appear for an inspection. The tenant should fill out another inventory form, similar to the move-in inventory. If the landlord has any disputes, the tenant should negotiate them on the spot. If the landlord is unwilling or unable to perform a walk-through, it is still important for the tenant to make an inventory list. The tenant should have a friend act as a witness to the condition of the premises if the landlord is not present or if the landlord does not sign the inventory list. The tenant can also take pictures or video to have further proof of the condition of the premises. These inventory lists are important evidence if the tenant and landlord end up in a dispute or in court.

Turn in the Keys. The keys should be turned in on the exact day the tenant vacates the premises. If the keys are turned in later, the landlord may be able to charge the tenant additional rent or other charges under the lease. A tenant's actual move out date is often considered to be when the keys are turned in.

What Can the Landlord Deduct from the Security Deposit?
A landlord cannot legally deduct for normal wear and tear. This refers to deterioration which occurs during regular, daily, intended use of the rental unit, for example nail holes in the walls from pictures or paintings. Damages caused by negligence, carelessness, accidents or abuse of the premises by the tenant or the tenant’s guests are not normal wear and tear.

If the tenant moves out of an apartment leaving Kool-Aid stains on the carpet, a three-inch hole in the bathroom wall and sacks of garbage in the carport (which were not there when the tenant moved in), these could be considered damages and the landlord is entitled to use all or part of the deposit to make these repairs. However, if the tenant moves out of an apartment leaving it in the same condition as when the tenant moved in, except for normal wear and tear, and no money is owed the landlord, the tenant should get all of the deposit back.

Sometimes landlords will take deductions which are questionable. For example, if a tenant lived in a house for two years and left a cigarette burn in the 15 year old living room carpet, the landlord should not charge the tenant the full cost for replacing the carpet throughout the house. The tenant could challenge this deduction for several reasons: The carpet was not new when the tenant moved in and the tenant damaged only the carpet in one room, not the whole house.

Deductions from the Deposit
If the landlord makes any deductions from the deposit, a written, itemized accounting of how much is being charged for each item must be sent to the tenant. If the landlord fails to provide such an accounting within 30 days after the tenant moves out, the landlord may forfeit the right to withhold any part of the deposit. Furthermore, the deductions taken from the deposit must be for actual damages suffered by the landlord.

How to Dispute Deposit Deductions
If a tenant receives a list of deductions, it is possible to dispute items on that list. The deductions should be addressed by the tenant in a letter sent to the landlord. The demand letter should include a response to each of the deductions, explaining which charges are being disputed and why. The tenant should keep a copy of the letter and send the original by certified mail, return receipt requested.

If the tenant receives a partial refund along with the list of deductions and wants to dispute some or all of the deductions, the tenant may want to refrain from cashing the check. If the tenant must cash the check then the tenant should tell the landlord in the letter that even though the check has been cashed, it does not mean the tenant agrees with the amount of the check.

What if the Tenant Breaks the Lease or Does not Move in After Paying a Deposit?
A tenant does not automatically forfeit the deposit for breaking a lease, but the deposit can be used to cover costs for which the tenant is liable. If a tenant must break a lease, doing everything possible to help the landlord re-rent the premises will reduce the tenant’s liability.

The landlord may have grounds to keep some or all of a deposit given to take a rental unit off the market, based on losses the landlord suffered. If a tenant has entered into a lease with a landlord and paid a security deposit or prepaid rent, and does not move into the unit, the tenant is entitled to a full refund if the tenant finds a replacement tenant satisfactory to the landlord who moves in by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, the landlord may deduct from the security deposit or rent prepayment any amount agreed to in the lease as a lease cancellation fee OR actual expenses incurred by the landlord, including a reasonable amount for the landlord's time in finding a replacement tenant.

Once the property is rented to someone else, the tenant is not liable for additional rent unless the unit is sublet. If the property stands vacant for several days, weeks or months the landlord will be able to deduct from the deposit the actual amount of rent the landlord lost until a new tenant starts paying. If the property remains vacant for a period that is longer than is covered by the security deposit, then the landlord can hold the tenant liable for the lost rent covering the lease term until someone does move in so long as the landlord makes reasonable efforts to lease the property. The landlord can also charge for re-renting costs such as advertising.

Some leases have a reletting fee written into the contract. This fee can be as much as one month’s rent. A tenant may successfully challenge their landlord about this arbitrary amount based on the fact that security deposits are meant to be used to cover actual financial losses. If a landlord spends the equivalent of the reletting fee to re-rent the apartment, then that is a legitimate charge. However, if a landlord runs a $50 ad, re-rents the place quickly and loses no rent but tries to charge the tenant the whole reletting fee, that may be considered a penalty and unenforceable under Texas law.

Some leases state that the tenant “forfeits”, or loses, the security deposit if the lease is breached or broken. Just because something is written in a lease does not mean that it is enforceable under Texas property law. If the tenant must break a lease and wants advice, call the Austin Tenants’ Council (ATC) or consult an attorney for more information.

Can the Deposit be Used in Place of the Last Month's Rent?
The security deposit law also contains a protection for landlords. Normally, the tenant cannot deduct the security deposit from the last month’s rent without the landlord’s written permission. If the tenant withholds part of the rent and claims that the security deposit makes up the balance, that action will be in violation of the law. The landlord can sue the tenant for three times the amount wrongfully withheld plus court costs and reasonable attorney’s fees. However, the court must find that the tenant acted in bad faith in order to award the landlord these damages.

The only time a tenant may use the security deposit in place of the last month's rent is when the tenant terminates the lease under the repair law. See ATC's brochure, Repairs: The Tenant's Rights and the Landlord's Responsibilities, for more information.

Foreclosure
In the event of foreclosure or bankruptcy of the landlord, a tenant's claim to the security deposit takes priority over any creditor or trustee claim to the landlord's assets. See ATC's brochure, Foreclosures in the State of Texas, for more information.

What if Rental Unit Changes Ownership?
If a new owner buys a house or apartment, and it is tenant-occupied at the time, all lease agreements and deposits should be transferred from the previous owner to the new owner. This means the new owner will be responsible for the return of the security deposit. However, the old owner remains liable for a security deposit until the new owner gives the tenant a statement acknowledging receipt of the deposit. Unless there are records of the move-in inventory, the new owner will probably not be able to establish the condition of the unit when the tenant moved in. Therefore, it may be difficult for a new owner to deduct damages from the tenant's security deposit. The new owner should not keep any part of the deposit for damages unless the new owner can prove that the tenant damaged the unit.

Pet Deposit
The Texas Property Code does not address pet deposits but it is assumed the same rules apply. One difference between a security deposit and a pet deposit is that the landlord can legally withhold all or part of the pet deposit if agreed to in the lease contract.

Tenant Remedies
If the security deposit or itemized list is not mailed within 30 days after the tenant vacates the premises and turns in a forwarding address, the tenant has several options: the tenant can attempt to recover the deposit through mediation or the tenant can sue the landlord. A landlord can be held liable for $100, three times the amount of the deposit which is wrongfully withheld, reasonable attorney’s fees and court costs if the tenant can show the landlord acted in bad faith. However, we suggest that the tenant first give the landlord an opportunity to pay the money owed by sending a demand letter by certified mail.

ATC has form letters that tenants can pick up from our office and our website or they can write their own. The letter should include the tenant's current and previous addresses, the date the premises were vacated, the amount of the security deposit, and a statement that if the deposit is not returned within 10 days from the day the landlord receives the letter the tenant will pursue legal remedies.

If a tenant signed a TAA lease contract, the tenant can also file a complaint with the Apartment Association's Dispute Resolution Committee. The Committee will make a decision based on documentation submitted by both the tenant and landlord. If they rule in favor of the tenant, the landlord will be instructed to refund all or part of the deposit. The committee will not review a complaint if the tenant is currently talking with an attorney or if the tenant is in the process of pursuing legal action.

Which Court is the Best?
When less than $5000 is involved, the tenant can sue without a lawyer by going to the local Justice of the Peace office. One cannot waive part of an amount due in order to get within the jurisdiction of a particular court.

Within the Justice of the Peace office are two Courts: Justice Court and Small Claims Court. The jurisdiction of these two courts overlap. The major difference is that Small Claims Court is less formal and the rules of procedure and evidence are relaxed. Justice Court is governed by the Texas Rules of Civil Procedure and Texas Rules of Evidence; it is much more formal.

Do not be intimidated by the prospect of going to court. The forms that must be filled out are self-explanatory. The staff of the Justice of Peace office can give you the proper forms, but they will not offer any legal advice. Soon after the suit is filed, and the landlord is served with a copy, a hearing will be set. The hearing will take about an hour or so, but plan on several hours just in case there is a delay. A tenant may also pick up ATC's brochure, Filing Suit in Small Claims Court for more useful information.

In Travis county, the current filing fee is $57.00. For an extra $5.00 a jury trial can be requested and for $65.00 a witness can be subpoenaed. (These costs may vary from court to court.)

In court, the major problem the judge faces is determining which side is right based on the evidence presented in court. The tenant should bring copies of the lease, deposit receipts, cancelled checks, the move-in and move-out inventories, the letter given to the landlord with the forwarding address, the demand letter, and any other materials that will be helpful in providing evidence in the case. In addition, any witnesses that are important to the case must be present.

Is an Attorney Necessary?
Although it is not necessary to have an attorney in Justice Court, if the landlord has an attorney, the tenant will be at a disadvantage. It is not impossible for the tenant to win, though, if the tenant has evidence and witnesses as indicated above. If the tenant decides to hire an attorney and wins the suit, the court can also award attorney’s fees if the landlord acted in bad faith or the lease provides for attorneys fees to the prevailing party. If unsure, the tenant can always obtain legal advice from an attorney before pursuing the matter. Keep in mind that the judge will not treat a case differently because someone is or is not represented by an attorney.



For Further Assistance



Austin Tenant’s Council - A private, nonprofit organization providing information and assistance on all areas of tenant/landlord relations. However, there are no attorneys on staff and ATC can not give legal advice. ATC is located at 1640-B East 2nd St., Suite 150, Austin 78702. Our phone number is 474-1961. Our website is www.housing-rights.org

Texas RioGrande Legal Aid - Legal assistance only for low-income residents of Central Texas. It is located 4920 North I-35, Austin 78751. The phone number is 374-2700.

Lawyer Referral Service - Legal services and referrals are available for clients who are not eligible for Legal Aid. Fees: $20 for the first 30 minutes; additional fees based on services required. The phone number is 472-8303.

Legal Services for Students - Free legal services for UT students only. It is located at 2609 University Avenue, Room 2.112, Austin 78705. The phone number is 471-7796.

Attorney General’s Consumer Protection Division - Enforces the Deceptive Trade Practice Act which sometimes applies to the security deposit. Mailing address is P.O. Box 12548, Austin 78711. The phone number is 463-2070.

Dispute Resolution Center - Provides mediation services to anyone involved in a dispute. A nominal fee is requested from both parties. Located at 5407 North IH-35, Suite 410, Austin 78723. The phone number is 371-0033.

Austin Apartment Association - Tenants in the Austin area can file a complaint with the Dispute Resolution Committee. The Committee will only review complaints made against AAA members concerning security deposits, application deposits and breach of lease agreements. Located at 4107 Medical Parkway, Ste. 204, Austin 78756. The phone number is 323-0990.



Justice of the Peace Offices in Travis County



Precinct 1
1811 Springdale Rd., Suite 110
Phone: 929-0593

Precinct 2
10409 Burnet Rd., Suite 180
Phone: 708-4545

Precinct 3