Security deposit can't be used for 'normal wear and tear'

Q. I am moving out of my apartment. I know a landlord cannot deduct from a security deposit for “normal wear and tear.” What is normal wear and tear? Does the statute have a definition?

A. I have been surprised by how many people have asked this same question. As you understand, generally under the Texas Security Deposit Law, a landlord must return a tenant’s deposit or give written notice why it is not being returned within 30 days after the tenant moves out. The landlord may deduct from a security deposit for damage to the apartment but may not deduct for “ordinary wear and tear.” The law, however, does not define this term. Therefore, it is left to courts and juries to determine what it means.

In my opinion, ordinary wear and tear is the damage that occurs through regular, daily, intended use of the property. For example, tenants ordinarily walk on carpets and put small nail holes in the wall to hang pictures. Therefore, a landlord cannot deduct to clean carpets or fix small nail holes. The dirt and holes are “ordinary.” On the other hand, tenants do not ordinarily spill bottles of wine or punch large holes in a wall. That damage would not be ordinary wear and tear. The bottom line is that a landlord may not deduct from a security deposit for the damage that he should expect an ordinary tenant to cause. Damage caused by negligence, carelessness, accidents or abuse of the premises by the tenant or the tenant’s guests are not ordinary.


Q. I was going to sue a contractor in justice court for doing faulty work. Before I had a chance to do anything, he filed suit against me for not paying the full amount. Do I still have the right to file my claim?

A. You may still file your claim, but you do not file it as a separate lawsuit. You file what is called a “counterclaim” in the contractor’s lawsuit. The court then hears both claims and rules on them at the same time.

Q. I brought my car in for repairs. When I picked it up, they gave me a bill for $59. That afternoon they called and said they were sorry, they added wrong and it should have been $159. Do I owe the extra $100? It was their mistake, why should I owe the money?

A. First, you seem to understand that the correct amount was $159. Without even discussing the law, you owe the $100 because that is the amount you owe and the value of what you received. Suppose that you gave them a $100 bill thinking it was a $10 bill and went back for your change? My guess is that you would be quite upset if they said, “You made a mistake so we get to keep your money.” This is also what the law says. Although there are situations where the law will not let someone correct their mistake, this is not one of them. You did not rely on their mistake to your detriment, nor did you lose anything because of it. As far as I am concerned, your legal position is that you have paid $59 toward a debt of $159.


Q. I have five brothers and sisters. Some of us are on better terms with our father than others. Our mother passed away last year and left everything to our father. I have been told that if my dad dies, the law requires my father’s estate be divided equally between all the children. Is this true?

A. If your father dies without a will, his estate will be divided between all of his children. With a will, however, he has the right to dispose of his property any way he wants. For example, he can leave all of his property to his children in unequal shares, or can leave some of the children all the property and others none. In fact, the law does not require he leave any of his property to his children. The bottom line is that under Texas law, a person has the right to leave property to whomever he or she wants. The important thing is to have a will clearly spelling out how you want your property distributed after your death.


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