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J. Warren
J. Warren, Lawyer
Category: Real Estate Law
Satisfied Customers: 2236
Experience:  Experience in residential real estate and commercial leases.
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My former landlord has withheld $3,611.97 of our security

Customer Question

My former landlord has withheld $3,611.97 of our security deposit. We were not provided with a list of what he was going to repair prior to them being made. We did not have. Walk through. It was brief. The repairs were made and an itemized list was sent to us with a check with the balance. We cashed the check but wrote "partial payment all rights reserved on it". There are several items on the list that have been deducted that were damaged prior to us moving in. Unfortunately we did not send him an inventory and condition form upon move in but we did take photos before we moved in and they are dated. The photos prove that he has deducted items in bad faith. Before We moved in we cleaned the tile and had the carpet cleaned because it was dirty. His list of repairs is outrageously excessive. He spent $1,050 on landscaping and deducted $590 from the deposit. He spent $360 on mini blinds. We have photos proving that the blinds were broken prior to us moving in. plus many other outrageous charges. While living there the oven caught on fire and the landlord was notified. We have email proving that he knew. The oven was not replaced the remaining 21 days we were there. Once we moved out he replaced the oven, microwave, and dishwasher with brand new stainless steel appliances.
We sent a demand letter requesting our deposit back via certified mail. He did not sign for it. We then hand delivered a letter requesting our deposit back.
The landlord responded saying that if we sue him that he will sue us for the other items on the list (like painting, pressure washing, carpet patch, etc) that we were not charged for plus his attorney fees and court costs.
Should we pursue legal action? I know that laws in TX do favor landlords more than tenants. Being that we didn't turn in the inventory form do we even have a chance of winning with the dated photos we have that prove he is trying to charge us for things that were broken before we moved in and used our money to purchase new appliances. His letter also stated that we left the home dirty which is absolutely untrue. We hired someone to clean it and had the carpets cleaned. We gave him the receipts. We have also found an error where he states that we left the house dirty but then he listed that we had it cleaned on the list of expenses. He's obvious a liar and has done this to others. Do we have a chance of suing and winning?
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  J. Warren replied 9 months ago.

I am sorry you are dealing with this situation and you are faced with a difficult decision. First, you have a valid argument to present to the course that a portion of your security deposit was unlawfully withheld as you were charged for normal wear and tear,, maintenance and items that were broken by a prior tenant.

A few things you will need to consider. The first, as you have pointed out, you don't have all the evidence that would be helpful to establish your case (move in inspection items, photos) but you do have some photos taken upon move out. What this boils down to is your word against his and whose testimony the judge believes. There is always risk that a judge will not get it right and rule in your favor.

Second, attorney fees are not automatically awarded. Unfortunately lawyers are allowed in small claims in Texas so there is that risk you will have to pay his lawyer fees if you were to lose and the judge grants motion for attorney fees.

Also, it is not easy for a person to make an argument asking for more money and convincing a judge that it is appropriate to award more damages when one had the opportunity to withhold from the security deposit. In other words, it is a little questionable when after you are sued for unlawful withholding of a security deposit to then counter claim and argue you should and could have charged more and didn't. Its a weak argument but again a judge is free to do as they please.

These cases come down to the facts, evidence and testimony. The law opens the door for you as a tenant to sue based on unlawful withholding of the a security deposit. But there is never a way to determine your odds in winning. Do you have a chance, yes, but there is no way to determine your odds going into the court room. You have valid arguments and you do have some evidence to question the veracity of any testimony by the landlord.

One way I look at small claims and weighing the risk and time and hassle of dealing with a lawsuit is whether or not if I win, will I receive more then I will lose if the decision doesn't come down in my favor. In other words, if I am going to win more then I could possible move then I would likely take the risk.

All my best and encouragement. Thank you for allowing me to help you with your questions. I realize this was not the answer you were hoping to receive however I have done my best to provide information which truthfully addresses your question. Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty

Customer: replied 9 months ago.
I do have photos we took before we moved in that are dated and show that the blinds were broken, the house was dirty. We have a total of about 65 photos of things. Like burnt light bulbs which is another thing he is trying to charge us for.
Customer: replied 9 months ago.
We also didn't receive the partial payment until the 31st day upon move out. I believe he has 30 days to return the deposit. If not he has acted in bad faith.
Expert:  J. Warren replied 9 months ago.

You have a valid claim for the landlord acting in bad faith. If the payment was not made within 30 days of a tenant providing notice of forwarding address the landlord is liable for return of the amount. Also, amounts deemed withheld in bad faith are subject to three times the amount as penalty which is awarded to the tenant.

"

Sec. 92.109. LIABILITY OF LANDLORD. (a) A landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit.

(b) A landlord who in bad faith does not provide a written description and itemized list of damages and charges in violation of this subchapter:

(1) forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises; and

(2) is liable for the tenant's reasonable attorney's fees in a suit to recover the deposit.

(c) In an action brought by a tenant under this subchapter, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable.

(d) A landlord who fails either to return a security deposit or to provide a written description and itemization of deductions on or before the 30th day after the date the tenant surrenders possession is presumed to have acted in bad faith."

see source: http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.92.htm#92.109

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) 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 with a positive rating.

Customer: replied 9 months ago.
Is it the day we surrendered possession of the property or the day the forwarding address was given? Those are two different dates.
Expert:  J. Warren replied 9 months ago.

I am sorry, that was unclear. It is the day the tenant surrenders possession:

"(d) A landlord who fails either to return a security deposit or to provide a written description and itemization of deductions on or before the 30th day after the date the tenant surrenders possession is presumed to have acted in bad faith."

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or pleaseRATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) 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 with a positive rating.

Customer: replied 9 months ago.
what about section 92.107?
Which one would come first? It's contradictory. So I'm guessing it would be up to the judge? I do have documentation of him stating when we would receive the deposit.
Expert:  J. Warren replied 9 months ago.

They are conflicting. Unfortunately, the courts have determined that regardless of what 92.109 states, a landlord is not obligated to comply with the 30 days until a forwarding address is provided. Most likely a judge would remain consistent with other rulings that it is the notice of forwarding address that triggers the 30 days. Now if the lease states 30 days after surrender of premises then an argument could be made that is a contract term and trumps 92.107.

Expert:  J. Warren replied 9 months ago.

Keep in mind that the 30 days is a prima facia case that the landlord acted in bad faith. It is also bad faith that he is charging for normal wear and tear. In addition, it is up to a defendant to raise the issue that 92.107 is the technical time in which they have to start the 30 day period.

Customer: replied 9 months ago.
Also, we were without a microwave for over 6 months. He sent me an email requesting dimensions, seriel numbers, and a whole list of other things. Was it my responsibility to provide that information? The service company didn't record any of that information. Also he was notified immediately when the oven caught on fire. We were without an oven and stove along with the microwave for 21 days. After we moved he purchased new appliances. Just wondering what his timeframe was to have repairs made?
Expert:  J. Warren replied 9 months ago.

There is a presumption that a reasonable time is seven days. This is found in Section 92.056(d). http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.92.htm#92.056