Making the Argument

The Hard Truth: Security Deposits and the Burden of Proof

By Michelle Fulton

September 6, 2004

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: A little over a year ago, my family and I rented an apartment and paid a $500.00 deposit. We took good care of the place and we stayed the entire length of the lease. We decided to buy a house, so we gave the landlord 30 days notice that we would be moving out when our lease was up. We moved two months ago, and he still has not refunded our deposit. When I called to ask him where our money was, he said that he was keeping it because we left the apartment a mess and he had to pay to get it cleaned. We did not leave it a mess, and in fact left it nicer than it was when we moved in. Can he do this?

A: A Landlord has a statutory duty to refund a deposit on or before the lapse of 30 days from the date that the tenant surrenders the premises. However, the Landlord has a right to deduct from the deposit for damages and charges that a tenant is legally liable for under the lease. If the tenant is not behind on his rent, then the Landlord must refund his deposit on or before the 30th day and, if the landlord has made any deductions, he must include an itemized statement showing what he deducted and why he deducted it. Deductions for normal wear and tear are not allowed. If the facts that you have supplied me are correct, then there is no reason why your landlord should have refused to refund your deposit. In answer to your question of "Can he do this" even when you have fulfilled your obligation, the answer is that he can do it only if you allow him to. If you can prove that you upheld your end of the lease, and that your landlord withheld your deposit in bad faith, then you can recover the sum of $100, plus three times the amount of the deposit wrongfully withheld, plus reasonable attorney’s fees and expenses if you file suit to recover. Keep in mind that you will have the burden of proving your case.

Tenants and Landlords each have their own set of rights and duties that they must follow to ensure a good relationship. There are a few things that tenants can do to make sure that their rights are protected. First, get a written receipt for any and all monetary transactions from your landlord. This includes money paid for rent, deposits, and anything else you are required to pay. Second, do a thorough walk-through of the premises you are leasing, and take photos of any damage. Make sure you note the damage on the checklist that your landlord is supposed to provide you. If he doesn’t give you one, request it. If you fail to note the damage, chances are you will be charged for it. Third, if you need repairs, do not simply pick up your phone and call. Put your request in writing and have your landlord sign off that he received it. If he refuses to sign, then mail it to him certified, return receipt requested and keep a file with all of your documentation. Most landlords are honorable people and will work with you to ensure that your experience is a good one, but it never hurts to take steps to protect yourself.

The bottom line is this:

If you believe that your deposit was wrongfully withheld, seek the advice of an attorney to review your options. Best of luck to you!

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3, Houston, Texas 77058.

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