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Tenant broke lease agreement and did not give 30 days notice, should deposit be returned?

San Antonio, TX |

Tenant broke lease agreement by bringing two dogs into the home after signing a "no pets" lease. When pets were found, tenant left property a week later. 30 day notice was not given. Lease states that 30 days notice is required in order to receive deposit back, however landlord told tenant that pets had to be removed or tenant would have to leave. Does this negate the 30 day notice clause?

Attorney Answers 3


  1. It is unlikely that what the landlord said would negate the notice clause. The tenant may be liable for the amount of the lease until the landlord finds someone else to take the premises. As a landlord, you should make reasonable steps to find a new tenant. You may bring an action against the tenant to recover any money owed. You may want to consult with an attorney to discuss your options.

    Legal disclaimer: Mr. Tabaku may be reached at (240) 750-4663 or fetabaku@tabakulaw.com. Mr. Tabaku is an attorney licensed in the state of Maryland. This answer is for general information only based upon the facts stated in the question and does not create an attorney client relationship between Mr. Tabaku or Tabaku Law Firm, LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.


  2. You should get the assistance of an attorney to represent you in this transaction on a pre-determined budget. There are also resources you can access on the internet to help you. Bear in mind that without seeing the lease and reading it a clear determination cannot be made. It is, however, unlikely, that what the landlord said would negate the 30 days notice provision. This lease sounds like it was a "month to month" lease rather than a longer term since you only required 30 days notice to move out right after learning of the pets. Either that or the lease term had expired and you had gone to a month to month. That being the case then you would still be required 30 days notice of a move out. Usually the deposit is for damage and wear and tear to the premises rather than for use as a penalty for moving out early. But again, I do not have the lease.

    Remember that most legal issues may be more complex and require more information to answer than what you can provide in this forum. This is not a substitute for contacting an attorney of your choice to get legal advice.


  3. You don't mention the duration of the lease. If the lease was for a term longer than month to month, and the tenant wrongfully moved out early, the tenant would be in breach of the lease. If your lease is similar to a standard Texas Apartment Association ("TAA") lease, an early move out is a default under the lease. If the landlord declares the tenant in default of the lease for moving out early, or for breaching the no pets provision of the lease, the landlord can accelerate the remaining lease payments and all the payments would be due and payable immediately.

    You can review the TAA form lease at the following web address:

    http://www.taa.org/images/assets/PDF/renter/2009apartmentlease_forweb.pdf

    The reason that a lease typically requires a 30 day notice is so that the landlord can arrange for a re-leasing of the property. Also, changes to a lease typically are required by the lease to be in writing, although the tenant may contend that you orally modified the lease by giving an ultimatim about the pets. But, as a bottom line, with the tenants having signed a "no pets" lease, and then sneaking in two dogs, is a breach of the lease. You were within your rights to demand that the pets be removed. In my view, the tenants should not benefit by breaching the lease. So, while the tenants may argue that you relaxed the 30 day notice requirement, you did not waive the no pets provision. So, either way, the tenants breached the lease.

    If the tenant has breached the lease, none of the prepaid rent would have to be returned unless the landlord re-rented the apartment. The landlord has to credit the tenant with rent received from a re-lease of the premises. The landlord has an obligation to mitigate its damages under Texas Property Code section 91.006. You can review that section at the following web address:

    http://www.fastlaws.com/index.php?id=txprchapter91

    The landlord has an obligation to provide an accounting for the tenant's security deposit provided that the tenant owed no rent and had provided a forwarding address. See Property Code section 92.104. If the tenant owes rent, the landlord can set off the rent owed against the pre-paid rent or the security deposit. I recommend that the landlord provide an accounting in any event. But, if the accounting is wrong, or the tenant disputes the accounting, the tenant can sue in small claims court for a wrongful withholding of the security deposit. If the tenant owes rent even after set off for any pre-paid rent or security deposit, the landlord can sue the tenant in small claims court for the outstanding rent.

    If the lease was a standard form TAA lease, or had similar default provisions, the landlord could withhold money or seek money for a re-leasing fee, and for carpet cleaning, and for whatever damages the tenant caused. But any excess would have to be repaid to the tenant. The accounting should reflect an entire accounting for the damages, pre-paid rent, and security deposit.

    You can review pertinent sections of the Property Code at the following web address:

    Texas Property Code Chapter 92 - Landlord - Tenant Residential Property
    http://www.texaspropertycode.org/

    -Or-

    http://www.fastlaws.com/index.php?id=txprchapter92

    Good luck.

    Hope this helps. If you think this post was a good answer, please click the “good answer” button below and/or designate my answer as the best answer. Thanks.

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