Q: I received my deposit after 30 days (no postmark). Can I sue based on Texas Property Code, Sec. 92.109?
I didn’t receive a refund check for my deposit until after the maximum 30 days (according to Texas Law). The letter was not postmarked, nor did it have any tracking information, therefore the date of receipt is the moment I physically received it, which was on December 21, 2022. This was two days past the cut-off date of December 19th, 2022 (for a move-out date of November 19th).”
Lawyer’s Response: “There is no basis to your claim, and you are not entitled to any additional amounts. My client timely accounted for and refunded your security deposit. The proof that the letter was mailed timely is that you received it on the 32nd day. If it had not been sent timely, you would have received it later. I am happy to proceed with trial where I am confident that the judge will find you take nothing and award my client its attorney’s fees.”
If I take this to trial, will I win my case? I'm arguing that I didn't receive my money within 30 days which I really needed to pay other bills with.
A:
Section 92.109 provides that a landlord who fails to return a security deposit on or before the 30th day is "presumed" to have acted in bad faith. The presumption is rebuttable.
In any statute that does not specify another method of delivery, the "mailbox rule" applies. Delivery is completed upon deposit in a prepaid, properly addressed envelope in a post office as long as you actually received it not less than ten days after the day it was due.
Your receipt of the security deposit on the 32nd day is strong circumstantial evidence that your landlord mailed the deposit back to you on or before the 30th day; therefore, there is no presumption of bad faith on the part of your landlord. In the alternative, your receipt of the security deposit on the 32nd day is probably sufficient to rebut the presumption that your landlord was acting in bad faith barring some other facts and circumstances which are not mentioned in your question.
If you filed your lawsuit AFTER having already received the security deposit--as opposed to between the 30th and 32nd day--your lawsuit is arguably frivolous and you could potentially end up being order to pay your landlord's unnecessary attorney fees incurred defending your lawsuit.
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