Texas Tenant Advisor

• Home
  • Rights
    • Application deposit
    • Discrimination
    • Eviction
    • House rules
    • Landlord took property
    • Late fees
    • Lease
    • Locked out
    • Locks and security
    • Mobile homes
    • Privacy
    • Rent
    • Repairs
    • Retaliation
    • Roommates
    • Security deposit
      • - Getting one back
      • - Filing a lawsuit
      • --Statutes
      • ---Forms
    • Smoke detectors
    • Subleasing
    • Termination
    • Utilities
    • Who owns the property
  • Fight back
  • Prevention

The Texas Tenant Advisor is intended to provide general information regarding Texas residential tenancies only.

Unique facts can render some statements inapplicable to a given situation.

We attempt to provide current information; nonetheless, you are urged to consult an attorney for legal advice and assistance.

This web site is a public service of the Texas Low Income Housing Information Service.

Overview

A security deposit is money given to a landlord to provide some protection to a landlord for damage to the rented premises or for some other failure of a tenant.

A security deposit should not be confused with an Application Deposit or some other fee. Advanced rent (like first month or last month's rent) is not generally a part of a security deposit either. The rules and suggestions in this section are only for security deposits. (A pet deposit is an additional security deposit usually required if you want to keep a pet on the premises. The same rules that apply to regular security deposits apply to pet deposits.)

Texas tenant protections are weak

Because of the lack of any regulatory laws in Texas, landlords treat security deposits as their own the moment they receive them. Few if any landlords keep security deposits in separate accounts for return at the end of the leases. If if they go bankrupt or are foreclosed on by a lender, tenants' security deposits are almost always gone.

The Texas Apartment Association (TAA) has successfully fought legislation proposed in the Texas Legislature over the years that would require landlords to keep security deposits in separate interest bearing accounts and give the interest earned on the funds to tenants (since it is the tenants' money). So far, the Texas Legislature has sided with landlords on this issue. However, many other states require landlords to properly care for security deposits and pay interest.

Non-refundables

A "nonrefundable deposit" is a contradiction in terms. (Like army intelligence, or jumbo shrimp.) Non-refundables were probably invented by creative landlords to try and get around the security deposit laws. If landlords called them "gifts" would you want to pay them? Of course not, so they use the word deposit to imply it is still your money and will be returned. Yet, they are nonrefundable. Don't be fooled, landlords have no intention of ever giving a nonrefundable deposit back. Texas law (Section 92.006(a) of the Texas Property Code) voids lease agreement provisions that attempt to give away tenant rights regarding security deposits found the statutes; thus, it is a little unclear if a "nonrefundable deposit" is actually enforceable. It would be an uphill battle to say the least.

Don't use deposit as rent

Do not use your deposit as rent for the last month of your lease. There are very, very few exceptions to this rule, and even when the law allows it, landlords usually file eviction suits if you try it and give tenants negative credit histories. Also, if you wrongfully use your deposit as the last month's rent you can be liable for three times of the rent wrongfully unpaid. Tex. Property Code 92.108It is much better to wait and sue the landlord if it wrongfully keeps your deposit.

How much is too much?

There is no limit on how much a landlord can charge for a security deposit. It should not vary based upon your race, color, religion, sex, whether you have children, or national origin, or disability. But after that, the landlord can take whatever you are willing to give it.

Never moved in

If you signed a lease and gave the landlord a security deposit, you may still get your deposit back if you never moved in. (You also can get the rent you gave the landlord.) But you only can get the these back if you find another tenant acceptable to the landlord to move in or the landlord finds a replacement tenant. Tex. Property Code 92.103. If the landlord finds the replacement tenant, the landlord can deduct a cancelation fee if it is in the lease (TAA's lease calls these "reletting fees" which are usually 85% of a month's rent); or if it is not in the lease, the landlord can deduct the actual expenses of finding the new tenant. Keep in mind that a landlord does have a duty to find a replacement tenant should the current tenant not go through with their lease. This is called their "duty to mitigate."

If neither you nor the landlord find a replacement tenant, then you need to be more concerned about the rent owed under the lease contract, than whether you are going to get your deposit back. Most landlords agree to let tenants out of their lease if they agree to forfeit the security deposit and pay the landlord one month's rent. But this is negotiable. For a more complete explanation see Terminating the Lease.

So, knowing this, you might want to know how to get a security deposit back after you move out.

Continue on to getting one back...