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Texas Security Deposit Law

Claudia Diaz - Security Deposit - January 5, 2023

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Wondering what you can do to get your security deposit back from a landlord in Texas? Below you’ll find a comprehensive guide that goes over everything you need to know about Texas security deposit law, Texas Property Code Sections 92.101- 92.111, and how you can get your security deposit back.  

What is the Deadline in Texas for Returning a Security Deposit? 

Texas security deposit law states that a landlord needs to refund a security deposit within 30 days after a tenant moves out. 

Texas Property Code Sec. 92.103(a) discusses this:

“Except as provided by Section 92.107, the landlord shall refund a security deposit to the tenant on or before the 30th day after the date the tenant surrenders the premises.”

Be aware, a landlord can condition the return of a security deposit on a tenant giving advance notice of surrender (moving out). This means that the landlord can require a tenant to give notice in advance before they move out as a requirement for the return of the security deposit. This condition needs to be clearly stated (underlined or bold) on the rental agreement or lease.

Texas Property Code Sec. 92.103(b) discusses this:

A requirement that a tenant give advance notice of surrender as a condition for refunding the security deposit is effective only if the requirement is underlined or is printed in conspicuous bold print in the lease.

What Can Your Landlord Legally Deduct From Your Security Deposit?

A landlord can keep or deduct from a security deposit in Texas for the following reasons: 

  • Damage to the property (not from normal wear and tear)

  • Unpaid rent 

  • Breaking the lease 

If the landlord deducts all or part of the security deposit, they need to give the tenant a written description and itemized list of deductions. If the landlord kept the security deposit because of unpaid rent, they don’t have to provide an itemized list. 

Texas Property Code Sec. 92.104(c) discusses this:

“(c)  If the landlord retains all or part of a security deposit under this section, the landlord shall give to the tenant the balance of the security deposit, if any, together with 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:

(1)  the tenant owes rent when he surrenders possession of the premises;  and

(2)  there is no controversy concerning the amount of rent owed.”

Cost of Damages to Property 

A landlord can’t legally deduct for normal wear and tear. Normal wear and tear is usually defined as the damages that naturally occur as a result of normal use or aging. However, a landlord can deduct for property damages, greater than normal wear and tear due to negligence or carelessness.  

Here are some examples of normal wear and tear (ultimately, it will be up to a judge to decide what is normal wear and tear): 

  • Small nail holes on the wall from hanging up pictures or mirrors tend to be normal wear and tear. 

  • If you have lived in an apartment for several years and the carpet got dirty, this is normal wear and tear. However, if you lived in an apartment for less than a year and there is a huge red stain on the rug or a three-inch hole on the wall, this may be more than simple wear and tear. 

Texas Property Code Sec. 92.001(e) discusses this:

“‘Normal wear and tear’ means deterioration that results from the intended use of a dwelling, including, for the purposes of Subchapters B and D, 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 chattels by the tenant, by a member of the tenant's household, or by a guest or invitee of the tenant.”

Unpaid Rent 

A landlord may keep a security deposit to cover unpaid rent from the tenant. However, Texas law clearly states that a tenant may not withhold payment of the last month’s rent and subtract from the security deposit the amount of unpaid rent. 

Not paying any part of the last month’s rent can make a tenant liable to the landlord for three times the amount of rent not paid.

Texas Property Code Sec. 92.108 discusses this:

“(a) The tenant may not withhold payment of any portion of the last month's rent on grounds that the security deposit is security for unpaid rent.

(b) A tenant who violates this section is presumed to have acted in bad faith.  A tenant

who in bad faith violates this section is liable to the landlord for an amount equal to three

times the rent wrongfully withheld and the landlord's reasonable attorney's fees in a suit

to recover the rent.”

Breaking the Lease or Not Moving in After Paying a Security Deposit 

If you break the lease or don’t move in after paying a security deposit, the deposit is not automatically forfeited. For example, if the tenant or landlord was able to find a suitable replacement tenant who is able to move in on or before the date the lease begins, the landlord can’t keep the security deposit (unless there was a cancelation fee). However, the landlord can deduct from the security deposit to cover costs associated with breaking the lease or having an empty apartment. These costs can include rent that would have been paid during the time the apartment was empty or re-renting costs such as advertising.  

Texas Property Code Sec. 92.1031 discusses this: 

“ (a) Except as provided in Subsection (b), a landlord who receives a security deposit or rent prepayment for a dwelling from a tenant who fails to occupy the dwelling according to a lease between the landlord and the tenant may not retain the security deposit or rent prepayment if:

(1)  the tenant secures a replacement tenant satisfactory to the landlord and the replacement tenant occupies the dwelling on or before the commencement date of the lease;  or

(2)  the landlord secures a replacement tenant satisfactory to the landlord and the replacement tenant occupies the dwelling on or before the commencement date of the lease.

(b)  If the landlord secures the replacement tenant, the landlord may retain and deduct from the security deposit or rent prepayment either:

(1)  a sum agreed to in the lease as a lease cancellation fee;  or

(2)  actual expenses incurred by the landlord in securing the replacement, including a reasonable amount for the time of the landlord in securing the replacement tenant.”

Fee in Lieu of Security Deposit

Tenants should be aware of Texas Property Code Section 92.111, which gives landlords the option of allowing a tenant to pay a fee instead of a security deposit. This option has a lot of nuances and requires the landlord and tenant to fulfill certain requirements. For example, if the tenant does decide to pay a fee instead of a security deposit, an agreement to collect the fee must be in writing and signed by the landlord or their legal representative and by the tenant. 

Review all of Sec. 92.111 if your landlord gives you this option to make sure they are complying with the law. 

Forwarding Address Requirements for Tenants

Tenants should also consider Texas Property Code Section 92.107. Sec. 92.107 states that a landlord is not required to return a tenant’s security deposit or give the tenant a written description of damages and charges until the tenant gives the landlord a written statement of the tenant's forwarding address for the purpose of refunding the security deposit. Note, this doesn’t mean that if you don’t provide a forwarding address to your landlord, you forfeit the right to your security deposit or written description of damages and charges. However, sec. 92.107 states you do need to provide your landlord with a forwarding address so they may return your security deposit or provide any accounting once you move out. 

If you did not provide your landlord with a forwarding address in writing, consider sending your landlord a demand letter and including your forwarding address at that point.

What If Your Landlord is Withholding Your Security Deposit in Bad Faith 

A landlord who, in “bad faith”, retains a security deposit is in violation of Texas Property Code Sec. 92.109A 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.” 

“Bad faith” is often hard to prove, as there is no exact definition for what constitutes “bad faith.” This means you have to prove bad faith with evidence. Here are some examples of what may be considered bad faith in Texas: 

  • Your landlord sends you an email and says, “I’m not returning your security deposit because I just don’t like you.” 

  • Your landlord doesn’t respond to your multiple requests to return your security deposit.

  • Your landlord doesn’t provide a written description and itemized list of damages even though they know they are required to, and you have asked for one on multiple occasions. 

How Much Can a Landlord Charge for a Security Deposit in Texas?

There is no state limit on how much a landlord can charge for a security deposit in Texas. However, you should always check for possible city or county limits. With that being said, most Texas landlords have their tenants pay the equivalent of one to two months' rent as a security deposit.

What to do Before Filing a Small Claims Lawsuit Against Your Landlord

If your landlord refuses to return your security deposit, you have the option of suing them in a Texas Justice Court (if the claim is less than $20,000). We recommend that before suing your landlord, you consider taking the following actions. 

Review Your Rental Agreement

As stated previously, a landlord may condition the return of a security deposit on a tenant’s advanced notice. You should check your rental agreement to see if it requires you to give your landlord advance notice that you are moving. This may be a condition for you to get your security deposit back and the reason why you haven’t received it. 

Send Demand Letter 

A demand letter is a letter that outlines a set of requests. For example, if your landlord doesn’t return your security deposit within 30 days as per Texas security deposit law, you could write them a demand letter requesting the return of your security deposit. Or you could send a demand letter to dispute deductions your landlord made to your security deposit. 

If you eventually decide to sue your landlord in Texas Justice Court over your security deposit return, we recommend that you first request your security deposit back before you sue your landlord. While you can request your money or property back orally, it is recommended you do so in writing in the form of a demand letter so that there is a physical record of your attempt to resolve your dispute out of court.

To be effective, your security deposit demand letter should answer the following questions:

  • How much of your security deposit does your landlord owe?

  • Why are you owed your full security deposit or a portion of the security deposit? Was the damage normal wear and tear?

  • What is your forwarding address? How can your landlord reach you?

  • Where should your landlord send the payment? 

  • If your landlord has multiple units that they rent, list the address of your rental unit and the dates you rented so there is no confusion. 

  • The state laws that require a return of the deposit in a timely manner.

  • The penalties for not returning the deposit as required by law.

Finally, you may want to consider giving your landlord 14 days to respond to you. Include this in your letter, and state that if they do not respond within that time, you intend to sue them. 

Need help writing a security deposit demand letter to your landlord? Learn more here.

Initiate a Small Claims Lawsuit Against Your Landlord in Texas Justice Court

Have you tried sending a demand letter and speaking directly with your landlord about the return of your security deposit, but they refuse to return all or a portion of your security deposit? It may be time to file a small claims lawsuit against your landlord in Justice Court. Texas Justice Courts were designed to help individuals resolve their disputes in an efficient and affordable manner. 

How Much Can You Sue Your Landlord For in Texas?

This is known as the “small claims court limit”. In Texas, you can file a small claims lawsuit against your landlord in Justice Court for up to $20,000. This amount includes attorney fees but does not include interests and court costs.

How Much Does it Cost to File a Small Claims Lawsuit in Texas? 

The filing fees in Texas Justice Courts are $54.00. However, some Texas Justice Courts provide a form that may be filled out if you aren’t able to afford court costs. This form is often referred to as the “Statement of Inability to Afford Payment of Court Costs.” 

Author

Claudia Diaz

Legal Educator @ People Clerk. Claudia holds a J.D. degree and is a certified mediator in New York and Florida. She has participated in dozens of small claims mediations in New York City courts.

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