 Dear George: I terminated my residential lease six months early but provided an acceptable tenant to my landlord. The new tenant signed a 12-month lease and paid a security deposit. The landlord did not lose any rent as a result or incur any cost for leasing the apartment. Now, the landlord will not return my security deposit even though there was no loss of rent or damage to the property. The lease does not address early termination or re-letting fees. It does list 11 items that can affect the return of the deposit, none of which apply to this situation. Am I entitled to the security deposit?
Answer: It is not a good idea to comment upon a residential lease agreement without first reviewing the entire agreement. That would be the job of an attorney. However, the Texas Property Code does address certain specific aspects dealing with landlords and tenants, one of which is how deposits are handled.
Title 8, Chapter 102, §92.102 defines a security deposit as "any advance of money, other than a rental application deposit or an advance payment of rent, that is intended primarily to secure performance under a lease of a dwelling that has been entered into by a landlord and a tenant." As to the tenant's right to have a security deposit refunded, the following sections of the Texas Property Code also apply:
1. §92.103. OBLIGATION TO REFUND. (a) 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.
(b) 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.
(c) The tenant's claim to the security deposit takes priority over the claim of any creditor of the landlord, including a trustee in bankruptcy; and,
2. §92.104. RETENTION OF SECURITY DEPOSIT; ACCOUNTING.
(a) Before returning a security deposit, the landlord may deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease.
(b) The landlord may not retain any portion of a security deposit to cover normal wear and tear.
(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.
3. §92.107. TENANT'S FORWARDING ADDRESS.
(a) The landlord is not obligated 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.
(b) The tenant does not forfeit the right to a refund of the security deposit or the right to receive a description of damages and charges merely for failing to give a forwarding address to the landlord.
There could be other sections of the Texas Property Code that may also apply to your lease agreement. Consult an attorney experienced in such matters.
| Dear George: I sold my home in March 2006 and truthfully completed the seller's disclosure form. I knew of no items that needed repair. The sales contract stated that the buyer accepted the property in its present condition with no repairs to be done by me. The buyer had a complete inspection. Now, the buyer wants me to reimburse him for replacing the upstairs tub. That tub was repaired in 1991, and it had started leaking again. Do I have to pay for this repair?
Answer: You are not required to comply with the buyer's request that you reimburse him for the tub repair. There is no instruction to the seller in filling out the Seller's Disclosure Notice to declare any item as "having been repaired," except in the few questions that address previous conditions (i.e., flooding, fires, foundation repairs, wood-destroying insects, etc.).
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