Military Veterans' Lawyer Blog

No!

Texas Property Code §92.108 states “a 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.”

The penalties are clear -- the tenant can be liable up to 3 times the rent wrongfully withheld and liable for payment of the landlord’s attorney fees for any suit to recover the rent.

Therefore if you are a tenant seeking the return of your security deposit after you move out. As a minimum do the following: provide 30 days notice, a forwarding address, make sure the rental property is clean and undamaged, do not break your lease, and pay your last month's rent on time.

Recently, I was involved in a classic retaliation case. An apartment tenant requested information from an apartment in accordance with the state statute to correct a deficiency with the apartment.

The apartment management was unresponsive to the tenant's request. The tenant then requested the apartment owner's address, as provided by a city ordinance which stated a tenant was allowed to send a letter to the owner stating their claim. The tenant was not behind in rent. This is an important requirement for a tenant to prove landlord retaliation in Texas.

Upon the tenant requesting the apartment owner' s address, the apartment manager immediately called the corporate management for guidance. The corporate manager instructed the apartment manager to terminate the tenant's lease and give the tenant a 30 day notice immediately. The apartment manager complied and issued the 30 day notice to the tenant within an hour of the tenant’s request for the owner' s address.

Until that moment the tenant had been considered a good tenant. The tenant was also current in their rent and the tenant had never been behind in payment of the tenant's rent. The tenant complied and moved out of the apartment within the 30 days the apartment specified in the notice to leave the apartment.

This case would have ended there except, the apartment then demanded the tenant pay several thousand dollars for the tenant moving out of the apartment. The apartment claimed that the tenant had acted in bad faith by relying upon the security deposit to pay the last half of the following month's rent. The apartment treated the tenant's leaving as a breach of the contract.

In Texas, it is presumed to be bad faith for a tenant to count on the security deposit to pay the last month's rent. But when the landlord constructively evicted the tenant for requesting the owners address as allowed by law (when the tenant was not behind in rent, and in fact the tenant had paid through the end of the month in which the notice to vacate was given), the apartment had retaliated.

Tenant's Claim for Damages

The reality of the situation was the apartment complex created this situation. Under the Texas Property Code Retaliation Section, the tenant was entitled to the following damages: one month' s rent; a statutory penalty; actual damages; court costs; reasonable attorney' s fees; moving costs; and actual expenses.

The apartment complex was entitled to subtract the 1/2 month rent due for the last 15 days of the tenancy) from the damages that the tenant was entitled. Unfortunately, the odds were against the tenant based upon the tenant represented themselves pro se while the apartment was represented by a very competent downtown attorney. The attorney argued that the tenant was not entitled to even moving costs because eventually the tenant would have to move. The Texas property code, however, stated the tenant was entitled to this damage payment.

The tenants made a strategic move to settle the case based upon a payment by the apartment of a small monetary amount. Had this tenant been represented by competent counsel it is my belief the tenant would have received closer to the $10,000 they originally were seeking when they filed the suit.

The tenant had knowledge of the Texas Property Code Retaliation section, but did not understand that the law was on their side.

The Law Office of Robert B. Goss through it's Texas Consumer Law practice could have aided the tenants in this matter had they come to this firm before filing suit pro se.

A landlord may not retaliate or attempt to punish a tenant who attempts to exercise "a right or remedy granted to the tenant by 'by lease, municipal ordinance, or federal or state statute." Texas Property Code §92.331(a)(1).

Additionally a landlord may not retaliate if he can't request a repair to the property or attempts to "exercise a remedy" under the Texas Property Code, Residential Tenancies, Chapter 92. Furthermore a landlord may not retaliate if the tenant request a government entity, public utility, "or a civic or nonprofit agency" to enforce a building or housing code.

The Texas Property Code §92.331(b) states a landlord within "6 months after the date of the tenant's actions" cannot:
1. evict;
2. deprive use of the premises;
3. decrease services to the tenant;
4. to increase rent or terminate the tenant's lease; or
5. engaging in bad faith, in a course of conduct that materially interferes with the tenant's rights under the lease.

A Tenant’s Remedies

Section 92.056 generally makes the landlord liable to the tenant if the tenant meets the requirements of Section 92.052. The landlord, however, has a reasonable period of time to repair the condition. Section 92.56(d) states a reasonable period of time is seven days. “To rebut that presumption, the date on which the landlord received the tenant's notice, the severity and nature of the condition, and the reasonable availability of materials and labor and of utilities from a utility company must be considered."

Under Section 92.053, the Burden of Proof (BOP) falls upon the tenant to enforce any inaction by a landlord failing to repair or remedy a Section 92.052 condition. Once the tenant proves their claim the BOP shifts to the landlord.

This BOP may shift back to the tenant if the landlord provides a written explanation for any delay within 5 days of the landlord receiving notice of the repair. The landlord will have to prove “the landlord made a diligent effort to repair and that a reasonable time for did not elapse.” TX. Prop. Code § 92.053.

Tenant Remedies

A “tenant to whom a landlord’s is liable” may terminate the lease, have the condition repaired or remedied and deduct the cost as provided by Section 92.0561 and seek judicial remedies.

Conclusion

A tenant who is not behind in their rent may impose a duty on the landlord to repair or remedy a condition that would adversely affect an ordinary tenant’s physical health or safety.

Smoke Detectors

You need a working smoke detector for the safety of you and your family.

Section 92.254 of the Texas Property Code requires a working smoke detector in each rental unit. The smoke detector must be able to detect both visible and invisible products of combustion. The smoke detector, which is installed must be “tested and listed for use as a smoke detector by Underwriters Laboratories, Inc., Factory Mutual Research Corp, or the United States Testing Company.”

Section 92.255, specifies where the smoke detectors shall be installed “outside, but in the vicinity of, each separate bedroom."

As with most any law there are exceptions.

For dwellings which are a single room residence, (bedroom suite, sleeping area is a combination den and living room, etc...) the smoke detector "must be located inside the room." Two story homes with at least one bedroom above the living and cooking area, requires the smoke detector to be centered on the “ceiling directly above the stairway.”

Section 92.260, A tenant may have a remedy against a landlord who is liable by not installing a smoke detector under Section 92.259. The tenant may get a court order directing the landlord comply, obtain a civil judgment of one month’s rent plus $100.00 if the landlord violates Section 92.259 (a) (2), plus court costs , attorney’s fees, and even unilaterally terminate the lease.

Section 92.261 provides the landlord with defenses to a tenant's demands for a smoke detector or notice that the tenant is terminating the lease. If a tenant owes rent, or costs from the tenants damaging the smoke detectors (§92.258) the landlord has a defense against the tenants claim.

Repair of Property

Texas Property Code § 92.052 provides a landlord “shall make a diligent effort to repair or remedy a condition if” the tenant gives notice AND is not delinquent in rent. Additionally, the repair defect “materially affects the physical health or safety of an ordinary tenant.” Finally, the landlord must provide hot water "a minimum of 120 degrees Fahrenheit."

A landlord does not have a duty to repair any damage caused by a tenant, a lawful occupant, a tenant’s family member, guest, or invitee. A tenant who damages the property cannot demand the landlord repair the damage.

Tenant

For a tenant to require a landlord to repair or remedy a condition, the tenant must not be delinquent in their rent and inform the landlord of the problem to be repaired. Pay attention to your contract, if the rental contract specifies notice must be given in writing; make sure to give notice in writing. A good practice to follow whenever you have to prove written notice is to mail the notice letter containing the explanation of what condition needs to be repaired or remedied by U.S. Postal Service Certified Mail Return Receipt Requested.

Tenants Beware

As a tenant do not repair the condition with your rent money, unless you have the landlord’s written permission allowing use of the rent money to repair. Next, a tenant can lose their right to have the landlord repair the property if the tenant is behind with their rent.

Locks

Section 92.153 of the Texas Property Code requires, with a few exceptions, a landlord to equip a residence, with a window latch on each exterior window, a doorknob lock or keyed dead bolt on each exterior door, sliding door pins for each exterior sliding door, a sliding door handle latch or security bar, and a this keyless bolting device and a door viewer an each exterior door.

Rekeying.

The landlord must rekey any security device within 7 days at the landlord’s expense, after the tenant’s turnover date. See §92.156.

Section 92.164 provides the tenant a remedy if the landlord fails to comply with Section 92.153 or 92.156(a) "regarding installation or rekeying of a security device." These remedies provide the tenant the ability to deduct such “reasonable cost of material, labor, taxes, and extra keys from the tenant’s next rent payment, in accordance with Section 92.166”. Additional remedies a tenant may enforce are “unilaterally terminate the lease if the tenant serves a written request for compliance on the landlord, and the landlord subsequently fails to comply on the 3rd day after notice is given. Next, a tenant can sue the landlord to require the landlord comply. Be aware there is a possibility that the landlord may have up to 7 days to comply with a rekeying request. Understanding your rekeying request does not occur instantaneously may save you aggravation.

After the landlord's initial rekeying, additional rekeying is at the tenant's expense. Under §92.156(b) a tenant may request, and pay for, unlimited rekeying.

A partial list of remedies available to the tenant can be found under §92.164.

Landlord’s Defenses

A tenant may lose their rights to require the landlord to install the security devices if the tenant is delinquent in their rent. In Texas, pay the rent to retain your rights if the tenant is delinquent with their rent.

Tenants
Tenants must comply with the contract and the Texas Property Code.

A tenant should understand a Landlord has the right to retain a security deposit and make charges “for which the tenant is legally liable under the lease or as a result of breaching the lease.”

Items a tenant should do to secure the return of their security deposit:
1. Comply with the lease;
2. Provide a WRITTEN 30 day notice;
3. Provide a forwarding address;
4. Document the condition of the residence at move in and surrender;
5. Understand the residential lease deductions in the lease agreement;
6. Do not try to use the security deposit as the last month’s rent;
7. Do not damage the residence; and
8. Do not skip out of the residence without paying.

If a landlord fails to return a security deposit §92.109 provides remedies to the tenant. Specifically a landlord may be liable for $100, and three times the amount of the wrongfully withheld security deposit, and reasonable attorney fees.

Each case is fact specific, however, a tenant who has complied with the Texas Property Code and their residential lease contract should contact an attorney to determine their legal rights if a landlord refuses to return their deposit.

The Texas Property Code governs security deposits. The landlord and tenant both have obligations and requirements under Chapter 92, Residential Tendencies, et seq., Subchapter C, Security Deposits. This chapter provides the specific requirements the landlord and the tenant must comply concerning the security deposit. First, we will discuss the landlord requirements.

Landlord
The security deposit is meant, “primarily to secure performance under a lease of a dwelling that has been entered into by a landlord and a tenant.” The advance of money by the tenant to the landlord gives the landlord a means of protecting his investment.

If the landlord requires the tenant give a 30 day notice that the tenant is vacating the property “as a condition for refunding the security deposit” this section of the lease agreement must be underlined or printed in conspicuous bold print in the lease.” The Texas Association of Realtors Residential Lease usually has this in section 10 of the lease, titled -- Security Deposit Refund. A typical lease will have wording similar to the following:
Refund: Tenant must give Landlord at least thirty (30) days written notice of surrender before Landlord is obligated to refund or account for the security deposit.

Section 92.109, Liability of Landlord, states a landlord who fails to comply with this section may owe the tenant three times the portion of the deposit wrongfully withheld, $100, plus reasonable attorney’s fees. For a landlord to be in compliance, the landlord must return the security deposit or within 30 days provide a written description and itemization of the deductions being withheld from the security deposit.

The Texas property code creates that a presumption a Landlord who does not provide a written itemization and description to the former tenant within 30 days has acted in bad faith. Case law does provide a Landlord with the ability to defeat the presumption of bad faith by showing the Landlord acted in good faith.

A security deposit is not meant to provide a Landlord with a 13th month of revenue from a 12-month lease. Read your contract carefully to determine what deductions a Landlord is allowed to make – BEFORE SIGNING THE LEASE. For instance, a Landlord may have a carpet cleaning deduction built into a pet agreement. The Texas Property Code and the residential lease contract will determine what is allowable.