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Know Your Rights: Landlord cannot deduct for 'ordinary wear and tear'

By By Richard Alderman
June 30, 2012 at 1:30 a.m.


I know an apartment may not deduct for wear and tear from my security deposit. How do you define "wear and tear?" I also think they withheld too much money for the repairs.

You are correct, the law limits the type of damage for which a landlord may deduct from a security deposit. The standard for the type of damage for which a landlord may not deduct, however, is not wear and tear, it is "ordinary wear and tear."

This means wear and tear based on what an ordinary tenant would do during the period of the lease. For example, the ordinary tenant walks on the carpet. Wear and tear caused by a people walking on the carpet during the period of the lease would be ordinary wear and tear. A landlord could not deduct from a security deposit to cover the costs of cleaning for this type of damage.

On the other hand, the ordinary tenant does not spill wine on the carpet or allow a dog to use the carpet as a restroom. Damage caused by these events would not be ordinary wear and tear. The landlord could deduct for the cost of cleaning or replacement. But how do you determine what is "ordinary?"

My suggestion is to compare your situation with that of your friends over the same period of time. If you apartment is not in worse condition than anyone else's over that period, any damage is probably "ordinary wear and tear."

Even assuming the damage is not ordinary wear and tear, however, a landlord may deduct only a reasonable amount. This is usually the actual cost of making the repairs or doing the cleaning.

If the landlord does the cleaning himself, he is still entitled to deduct a reasonable amount. In my opinion, this would be the amount he would have to pay to have someone else do the work.

If you think your landlord has either improperly made deductions or deducted an unreasonable amount from your deposit, let him know. If you cannot work things out, you may want to consider small claims court.

We had our foundation repaired by a company that gave us a "lifetime warranty." Now that it has cracked again they won't even return our calls. We are not even sure if they are still in business. What are our legal rights? What kind of an attorney do we need?

First, a "lifetime" warranty is for the lifetime of the company. If the company has gone out of business, you are probably out of luck. Assuming the company is still in business, however, Texas has a law that can help you. If a company does not live up to its warranty, it automatically violates our consumer protection law, called the Texas Deceptive Trade Practices Act.

If the company "knowingly" refuses to comply with its warranty obligations it may be responsible for up to three times your damages. If you prevail in a lawsuit under this law, you also are entitled to recover your attorneys' fees.

I suggest that you inform the company you know about this law and try to resolve the matter. If you cannot, you should try to find a consumer attorney who handles claims under the Deceptive Trade Practices Act. If the amount of your damages is less than $10,000, you also should consider small claims court.

I want to be cremated after I die. I also would like my ashes destroyed. I am concerned that my family will not follow my wishes. What can I do to insure that my remains are disposed of the way I want?

Texas law permits a person to direct, in writing, how his or her remains should be disposed of following death. You may do this in your will or in a separate document. You also have the right to designate an agent to carry out your wishes.

This is the best way to ensure that your remains are handled in the manner that you desire. If you do not leave directions for the disposition of your remains, the law determines who makes the decision. In most cases it is your surviving spouse, or if there is no spouse, your children.

I have a smoke detector in my apartment and it needs new batteries. Who has to pay for them, my landlord or me?

Under the law, a landlord must provide a tenant with a working smoke detector, and must repair a defective detector. The landlord is not, however, required to replace the batteries after the tenant has taken possession. Replacing the battery is the obligation of the tenant.

Richard Alderman, a consumer advocate popularly known as "the People's Lawyer," is a professor at the University of Houston Law School in Houston. His column appears weekly in the Victoria Advocate. Write to him at UH Law Center, Houston, Texas 77204-6391. He also maintains a Web page at peopleslawyer.net.

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