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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 87469
Experience:  Fully licensed attorney in Texas in private practice.
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Our property manager took $350 deposit for our house which

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Our property manager took $350 deposit for our house which was rented out at $1500 mon. There were to be no pets, tenants had four. There was to be only one family, tenants had two families in our house. Wear and tear beyond normal. What recourse do we have?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please clarify:

1) What amount of deposit did the tenants initially put down?
2) Do you mean the property manage kept the deposit for themselves? If so, what was their justification for doing so?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

1. The tenants only put down $350 deposit. The property manager thought it was wrong, but according to her assistant, that's all they put down. We felt that was too little.


2. As of this date, we have seen none of the deposit. The PM said she would pay to have the house and carpets cleaned. She had the house cleaned, however, the cleaners bleached some of the tile so that they are ruined and will need to be replaced.

Expert:  Ely replied 1 year ago.
Thank you for your reply, G.

At this point, you have a separate recourse against each party. Allow me to explain.

Cause of action & Justice of the Peace Court
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state.

The proper court to have this matter heard in is the Justice of the Peace Court, which is the Texas version of "small claims" Court. If you need more information on where to file, please tell me what county this is in.

Tenant
The tenant is responsible for any damage to the property beyond that of whatever the deposit covers. As such, they may be liable for the cause of action of negligence for that amount. The elements of a negligence cause of action are
(1) The defendant owed a legal duty to the plaintiff,
(2) The defendant breached that duty, and
(3) The breach was a proximate cause of the plaintiff's personal injury or property damages.
D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002).

Property Manager
The property manager is supposed to use the money to fix the property properly, and if they have either squandered the money, OR, kept it and did not even apply it to the property, they may be liable for negligence if they applied it but poorly, or money had and received if they kept the money all-together for themselves.

A claim for money had and received arises when the defendant obtains money that in equity and good conscience belongs to the plaintiff. It is an equitable doctrine applied to prevent unjust enrichment. Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

An attorney is recommended but not mandatory. May I recommend the Texas Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

We only have a contract with the PM, not with the tenant. We do not feel that the deposit was adequate and even the PM was surprised at the amount. Is the PM responsible for seeing that there is only one family in the house and no animals? Isn't that what we paid her for? We want to put the house on the market, but we are having to put a lot of $ into it that we don't really have. So, I guess that's the question...what can we do about it? Is the PM responsible, or are we being unfair? Thanks for your help.

Expert:  Ely replied 1 year ago.
Friend,

Thank you for your reply.

Is the PM responsible for seeing that there is only one family in the house and no animals? Isn't that what we paid her for?

Yes and yes - you are correct. As such, if they did not perform their duty as the PM, they can be sued for negligence due to failure in their duty under the contract and be held liable for the damage (again, negligence is the failure of a duty and damages due to that failure).

So, I guess that's the question...what can we do about it? Is the PM responsible, or are we being unfair? Thanks for your help.

No, you are not, and the PM is responsible jointly with the tenant, arguably. You may choose to pursue either, or both, for the damage.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 87469
Experience: Fully licensed attorney in Texas in private practice.
Ely and 3 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you, Ely. You've been a great help.

Expert:  Ely replied 1 year ago.
You are very welcome. Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied.

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    Ely

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    Fully licensed attorney in Texas in private practice.