Terminated Month-to-month Landlord Demanding Extra Month's Rent

[Kirk Cochran]

Hello all. I am new to the forums and seeking some advice with how to deal with my landlord.

I rented with my landlord for the past year. The original lease was from July 1st, 2015 to June 30th, 2016. Rent is $800 and the lease states that "This lease automatically renews on a month-to-month basis" unless the landlord or tenant gives 30 days written notice.

Some time near the end of June, I paid $800 in rent for the month of July, under the assumption that I was now month to month, per the lease. The landlord accepted payment with no problems. A week or so later on July 2nd, I received a notice on my door stating a rent increase to $825 for a new lease and $875 for month to month.

My landlord is rude, impersonable, and often does not respond to requests for anything or clarification on terms of the lease. He has done things in the past that show this. After receiving the rent increase notice, I decided to move and look for another place, since I didn't want to be bullied into a new lease that costed more, or pay $875 to stay there and possibly even have him pursue me for another $75, which I can't owe because of his late notice. I did not sign the notice and did not agree with anything on it.

His notice is a direct result of my decision to terminate my lease. I started looking for new places to live because I did not want to pay the higher rent. Once I start looking for places and notified him July 8th that I will be terminating on the end of the month. He insists 30 days written notice, which I argued was not possible because of his late notification of rent increase. This is was all done through text.

A few weeks later I find a new place and sign a new lease. On July 18th, after getting everything squared away, I notified him in writing that I would be leaving and he began stating that I need to give 30 days notice. I argue that this was not possible because of his untimely and likely illegal rent increase. This was all through text.

I decided to move because he tried to force me into paying higher rent for August and possibly July (was never clarified) without proper notice.

He has basically stated that he will be expecting rent on August and will file an eviction and "contact collections" if I don't pay.

The problem with this is that I will no longer be living there. He also has my deposit which can be deducted. I don't see the need to threaten me with eviction.

He is very shady and I planned on him trying to keep my deposit, but this is just ridiculous.

Am I legally bound to this 30 day notice if my termination was a result of his untimely and possibly illegal rent increase? Even if I was, could he file eviction instead of taking it from the deposit? Even if I no longer live there and have returned the key?

This all seems ridiculous to me.  I have attached our text conversations for more details (the threat is on the July 18th set). I know it is a lot to read, but I really need some help. Any input is appreciated.

[Brie Schmidt]

@Kirk Cochran - According to the www.haaonline.org website:

I would like to know exactly when, how much and how often a rental increase can be given. Also, is there a ceiling on the amount of any given increase? If so, what is the highest amount?

Under the terms of the TAA lease, no rental increases can be given until the initial lease term has expired. After the lease has expired, an increase of any amount (the state of Texas has no rent control) can be given provided the resident has been served with a 35 day notice prior to the effective date of the new rental amount.

What type of notice do I have to give to terminate my lease?

Your lease contract should identify what notice you have to give to terminate the lease. Many apartment owners use a lease requiring that at least 30 days' notice must be given and that the lease can only be terminated at the end of the lease term or at the end of any month-to-month renewal term. Some owners require more than 30 days' notice. The amount of notice that has to be given should be clearly stated in your lease.

If I don't give proper notice, how much will I have to pay?

If you do not give the notice required by the lease and vacate your unit without paying rent for the full remaining term (or month-to-month renewal term), you will be in default of your obligations. If you are in default, e various types of damages can be assessed against you. Many leases provide for a reletting charge to compensate the owner for the time, effort and expense in finding and processing a replacement resident. The reletting charge is most often assessed if you:
(i) fail to move out or fail to give proper written move out notice,
(ii) move out without paying rent in full for the entire lease term or renewal period,
(iii) move out after receiving a notice to vacate, or
(iv) are judicially evicted.
In addition to the reletting charge, many leases allow the landlord to assess accelerated rent against the resident. Accelerated rent is all monthly rent for the rest of the lease term or renewal period, which is automatically accelerated without notice or demand if you:
(i) move out,
(ii) remove property in preparing to move out or
(iii) give oral or written notice of intent to move out before the lease contract term or renewal period ends.
There may also be additional damages provided for in the lease, such as court costs, expenses, late charges and collection agency fees.

So technically, he cannot increase your rent for Aug if he gave notice on 7/2.  So the increase can only take effect for September.  But you did not give 30 day notice for August so you would still owe the $800 for August rent.  

[Kirk Cochran]

Thanks for your feedback. I was expecting something like this to happen, but what I am most concerned about is his threat to "evict" me, charge a months rent and damage my credit. Can this be done if he still holds my deposit and the deposit covers the $800 for rent?

Other than to spite the tenant, I don't see why a landlord would go through that process if they have the money to cover it from the deposit. My landlord is a bully and I took this as a threat.

[Mike Cumbie]

Hi @Kirk Cochran,

Not a lawyer and not giving legal advice etc, I think @Brie Schmidt is correct though. He is required to give you 35 days on the rent increase and you are required for a 30 day notice. He wrote "As far as the rent notice don't worry about it". I am taking that to mean that he is keeping the rent the same as it currently is through August when you are vacating.

Now things like this through text message are rough it leaves entirely too much up in the air through what they mean. In this case make sure you put your notice in if you haven't. Follow all of your steps properly and if it goes any further at least you are doing what you are supposed to in the eyes of a judge.

Good luck!

[Andreas W.]

@Kirk Cochran

I think the landlord is correct. His rent increase notice is bound by the same 35 day notice requirement. Technically, he doesn't renew the lease but offers a new one with the new terms. I am surprised that there is no conversation as to when the rent increase is due, neither on his nor on your side. According to your information, it is by the end of August. Consequently, you decided to rather move out and gave him notice in July. Now, read you rental agreement carefully. Does it say 35 days to the end of the rental period? If yes, you are on the hook for August as well. What I read about your exchange is that the landlord insist on fulfillment of the rental contract. You can't blame for that. 

In NC he is expected to make an effort to rerent his property quickly and not charge you for the time a new tenant takes over. 

[Greg H.]

@Kirk Cochran

Several things working here:

The landlords decision to increase the rent and your decision to move are both separate actions that each require a 30 day notice.  Depending on the specifics contained in your particular lease, you may have had an argument that the increase cannot begin until September 1 instead of August 1

Does your lease state that your lease allows termination with 30 days notice or at the end of the month following the month in which notice is given ? Either way you were required to give at least 30 days notice regardless of the increase

If you have already vacated the premises, the landlord cannot evict as that is a lawsuit for possession of the property.  You do need to return all keys asap if you have not done so already.  The owner can still pursue you for the rent due

[Kirk Cochran]

Thanks for the feedback. There is a high chance I will owe rent, but cant this be taken out of the deposit? He wouldn't have to pursue me since thats what a security deposit is for, correct? 

I can't see him keeping my deposit and wanting another $800. Doesn't seem right. 

[Greg H.]

The TAA lease that is being quoted here is used mainly by apartments and others who are members of the texas Apartment Association and is not widely used in Texas by individual landlords 

@Kirk Cochran

Yes he can/should deduct any rent due as well as any damages from the security deposit. In Texas, the landlord is required to provide the deposit refund and/or a statement of any reductions within 30 days of you vacating the property AND providing a forwarding address. The clock does not start ticking without the forwarding address so make sure you return the keys and provide the address promptly

[Jim Adrian]

fyi... text messages may not hold up in court.  They are not considered written documentation.  The courts have yet to approve or accept this method of communication.  They will accept emails as written documentation.  Always follow up a text message conversation with an email to summarize the conversation.

I would look at prorating days into august to meet your 30 day notice period.

[Brie Schmidt]

Originally posted by @Kirk Cochran:

Thanks for the feedback. There is a high chance I will owe rent, but cant this be taken out of the deposit? He wouldn't have to pursue me since thats what a security deposit is for, correct? 

I can't see him keeping my deposit and wanting another $800. Doesn't seem right. 

That is NOT what a security deposit is for.  It depends on what the lease says.... my leases say SD cannot be used as last month's rent and that if SD is used to pay last month's rent then rent is double.  And I would pay the $100 to file eviction if you had damages and did not pay last month's rent.  

It can be taken out of the deposit if there are no damages.  If I was this landlord I would want the August rent and then provide a refund if there are no damages.

[Joe Splitrock]

@Kirk Cochran you are required to give full 30 days calendar notice which means notice given on July 18th would be for vacating August 31st. 

Your landlord is entitled to give you a rent increase after the lease term. If the notice was given on July 2nd, then it would take one calendar month to take effect, which would be September 1st.

Since you gave notice on July 18th, you would be responsible for August rent of $800.

The landlord actually told you in text message response that you were not responsible for the $75 additional in August. He was correct to state you are responsible for the $800.

He is within his legal bounds to withhold the $800 from your security deposit and possibly pursue more money from you if there are damages or cleaning at the property. 

You were right about 30 day notice on rent increase, but you were wrong to believe that releases you from your lease. It just means had you stayed, you could have disputed the $75 - not completely avoid paying a whole months rent. 

Taking him to court would be a waste of your time, but you can file a small claims court case if you want. The contract is pretty clear.

[Joe Splitrock]

Originally posted by @Kirk Cochran:

Thanks for your feedback. I was expecting something like this to happen, but what I am most concerned about is his threat to "evict" me, charge a months rent and damage my credit. Can this be done if he still holds my deposit and the deposit covers the $800 for rent?

Other than to spite the tenant, I don't see why a landlord would go through that process if they have the money to cover it from the deposit. My landlord is a bully and I took this as a threat.

 I doubt he will evict you and assuming you already moved out, there is no eviction. You would go to court and tell the judge you left on July XX and gave him the keys. The judge would probably deem it a waste of time to evict someone who has already left. 

My advice is to call your landlord and tell him you want to work something out. Tell him you will clean the place and leave it in perfect condition and pass over the keys to him. Tell him to go ahead and rent it to a new person and get them in ASAP (August 1st ideally). Tell him that in exchange he keeps your security deposit and you walk way under good terms with all this just being a misunderstanding. If he wants to charge you for August, then it means he cannot rent it to someone else during that time. Basically he cannot double dip, but if he takes your security deposit and you agree to it, he can re-rent it. You could alternately try to negotiate to only give him part your deposit, but you get the point. Then the important part is you type up an agreement and both get signed copies, so everyone is clear and on the same page. You want to leave on good terms to have the reference.

The guy may talk like a hard-*** but most landlords don't want to waste their time dealing with crap like this. Who wants to go to court - nobody. 

One thing that is interesting is some landlords claim tenants never leave because of rent increases, this is interesting to see the other side of that opinion. Good luck my friend!

[Kirk Cochran]

Called the landlord and tried to negotiate with him to keep $480 of the deposit as prorate for rent up to August 18th. Also stated that I would be moved out by the end of July and he could rent the place out on August 1st if he wanted to. He declined the offer.

I then offered to let him keep all of the deposit with the same terms. He declined.

He went on to argue that I violated the lease by not giving 30 days notice and he will be KEEPING the $800 deposit because of that. In addition he stated that I would  ALSO owe $800 for rent.

I really couldn't believe my ears so I asked him is he really planning on KEEPING the deposit AND charging me $800 for rent. He said yeah.

The phone call ended with me saying we'll just have to go to court to sort it out.

This seems illegal and is not part of the lease. The lease doesn't state improper notice as a reason to deduct from the deposit. What do you all think?

[Account Closed]

Whoa, I tried reading your post and started to get a migraine.

First - did you pay any rent for July?  If no, then he can evict you.

If yes, then I don't see any basis to evict you.

No, you don't get to move without consequences because he didn't give proper notice of a rent increase.  Your option to deal with improper notice of a rent increase is small claims court, if he's insisting on getting paid a higher amount without proper notice.

You are required to give 30 days notice to move.  

When you move out, no matter what date it is, your landlord has 30 days to send you an itemization of what's deducted from the security deposit.  If you disagree, go to small claims court.

In TX, your landlord has a duty to try and find another tenant right away.  So, if you move out before your 30 days notice period is up, and your landlord finds another tenant during that time - he can't charge both of you rent.

Bottom line is that it looks like you will have to take this guy to court.  Just let a judge work it all out.  Clean the place, take lots of photos, keep receipts for any cleaning products, etc.  Hand over the key and either get a receipt for the key or take a picture of you giving the landlord your key.  Be sure and give him your forwarding address.

Yes, texts are legal in court, as electronic forms of communication are considered to be "in writing."

So, just do your part correctly as far as pay your July rent, clean it up, take tons of photos, turn over the key and get proof of when you vacated, give him your forwarding address.  Wait for the deposit itemization, send a demand letter for what you think he should reimburse you or that you disagree (required by small claims court), then take him to small claims court for the judge to figure out who should pay what.

[Account Closed]

Some references:

Scroll down to "

"Landlord’s Duty to Find a New Tenant in Texas"

http://www.nolo.com/legal-encyclopedia/tenants-rig...

According to this article, you need to check your lease to see if you need to give 30 days notice on the first of the month.  So, in other words, if your lease says you have to give notice on the 1st, then he's right that you would owe for August:

http://www.nolo.com/legal-encyclopedia/texas-notic...

BUT, he would be required to find another tenant, so he probably couldn't get away with charging you for all of August, unless it would take him a month to find another tenant.

[Ian Walsh]

In our market, if there is no lease in place, it automatically becomes month to month and reverts to the rules of the prior signed lease.  Does that lease have a 30 day termination in it?

[John Thedford]

Both of you are bound by Texas law. As others posted, text message may or may not be considered constructive notice. You should google Texas statutes for landlord/tenant laws and refer to those. Regardless of the current situation, it does sound like the landlord is being unreasonable. When a tenant wants to move, in general, work with them if they have been a good tenant and focus on getting a new one.

[Joe Splitrock]

@Kirk Cochran I am sorry this landlord is being a jerk and is not willing to work with you. I read Texas law regarding security deposits and if you do not pay last months rent and instead tell him to use your security deposit, you can be held liable for three times rent. Rent is not due yet, so you have not withheld anything yet. My recommendation is to pay last months rent when due or he could take you to court for damages of 3X rent. Assuming you pay last months rent and the property is passed over in good condition, he has no legal grounds to keep your security deposit and it needs to be returned withing 30 days. 

You have been smart to keep his texts as documentation. I think it would be good to send him a text similar to the following to document your concerns over him withholding the security deposit. This is what I would text to him:

As we have discussed, I chose to vacate the property early due to you applying a rent increase without proper notice. I felt it unfair and probably illegal to impose a rent increase with less than 30 days notice. I gave my notice on XX July and plan to be moved out by XX July. I will do my best to leave the property in the same or better condition as when I moved in. I am concerned because on a phone call July 19th, you told me that you plan to withhold my security deposit in addition to charging me August rent. I do not believe you would be in compliance with Texas law if you withheld my security deposit after I payed August rent. I am sure you can understand I am very concerned about paying you $800 when you have already told me you don't plan to return my security deposit. My understanding per Texas law is that security deposits can only be withheld for damages or unpaid rents. I would like to schedule a walk-through on July 21st and have you notify me of anything that doesn't meet your standards. I will do additional cleaning or whatever is necessary to get my entire $800 security deposit returned. If during the walk through, you determine everything is acceptable, I will turn over my keys and surrender the property to you. Please understand my concern is that you have threatened to withhold my deposit. I am concerned you will fabricate damage or other reasons to withhold. I am not wealthy enough to lose $800 so I need to get all $800 back. I would like to walk through together and have you point out any items you feel are cause for withholding so I can remedy. Section 92.109 of Texas code states a landlord who illegally withholds security deposit is responsible for $100 plus three times the amount withheld plus my attorney fees. I have been a good tenant and I would like to conclude my tenancy in good standing and have my deposit returned legally without having to go to court. I can contact the local housing authority for assistance in dealing with this situation, but as I stated on the phone yesterday, I would rather work this out direclty with you.

This is just an example of what I would do and is not legal advice!!

See if you can get free legal help and contact your local housing authority and tell them your landlord has threatened to withhold your security deposit in addition to last months rent. Tell them he has not walked through the property and has no reason to believe there will be any damages. Tell them you are concerned about paying last months rent because the landlord has threatened he will keep the deposit in addition to last months rent. Ask for their advice.

Your best situation is to get the walk through done as soon as possible. Document the date and time that you pass over the keys. Proof of the date you surrendered the property may be needed later. Also be aware if he charges you for August rent, he cannot have a new tenant move into the property before August 31st. That is covered in Texas code too. 

Full link:

http://www.statutes.legis.state.tx.us/SOTWDocs/PR/...

Section that pertains to this situation:

Sec. 92.1031. CONDITIONS FOR RETENTION OF SECURITY DEPOSIT OR RENT PREPAYMENT. (a) Except as provided in Subsection (b), a landlord who receives a security deposit or rent prepayment for a dwelling from a tenant who fails to occupy the dwelling according to a lease between the landlord and the tenant may not retain the security deposit or rent prepayment if:

(1) the tenant secures a replacement tenant satisfactory to the landlord and the replacement tenant occupies the dwelling on or before the commencement date of the lease; or

(2) the landlord secures a replacement tenant satisfactory to the landlord and the replacement tenant occupies the dwelling on or before the commencement date of the lease.

(b) If the landlord secures the replacement tenant, the landlord may retain and deduct from the security deposit or rent prepayment either:

(1) a sum agreed to in the lease as a lease cancellation fee; or

(2) actual expenses incurred by the landlord in securing the replacement, including a reasonable amount for the time of the landlord in securing the replacement tenant.

Added by Acts 1995, 74th Leg., ch. 869, Sec. 13, eff. Jan. 1, 1996.

Sec. 92.104. RETENTION OF SECURITY DEPOSIT; ACCOUNTING. (a) Before returning a security deposit, the landlord may deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease.

(b) The landlord may not retain any portion of a security deposit to cover normal wear and tear.

(c) If the landlord retains all or part of a security deposit under this section, the landlord shall give to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions. The landlord is not required to give the tenant a description and itemized list of deductions if:

(1) the tenant owes rent when he surrenders possession of the premises; and

(2) there is no controversy concerning the amount of rent owed.

Acts 1983, 68th Leg., p. 3640, ch. 576, Sec. 1, eff. Jan. 1, 1984.

Sec. 92.1041. PRESUMPTION OF REFUND OR ACCOUNTING. A landlord is presumed to have refunded a security deposit or made an accounting of security deposit deductions if, on or before the date required under this subchapter, the refund or accounting is placed in the United States mail and postmarked on or before the required date.

Added by Acts 1995, 74th Leg., ch. 744, Sec. 4, eff. Jan. 1, 1996.

Sec. 92.105. CESSATION OF OWNER'S INTEREST. (a) If the owner's interest in the premises is terminated by sale, assignment, death, appointment of a receiver, bankruptcy, or otherwise, the new owner is liable for the return of security deposits according to this subchapter from the date title to the premises is acquired.

(b) The new owner shall deliver to the tenant a signed statement acknowledging that the new owner has acquired the property and is responsible for the tenant's security deposit and specifying the exact dollar amount of the deposit.

(b-1) The person who no longer owns an interest in the rental premises is liable for a security deposit received while the person was the owner until the new owner has received the deposit or has assumed the liability for the deposit, unless otherwise specified by the parties in a written contract.

(c) Subsection (a) does not apply to a real estate mortgage lienholder who acquires title by foreclosure.

Acts 1983, 68th Leg., p. 3640, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985, 69th Leg., ch. 305, Sec. 2, eff. Aug. 26, 1985.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 1198 (S.B. 1367), Sec. 5, eff. January 1, 2016.

Sec. 92.106. RECORDS. The landlord shall keep accurate records of all security deposits.

Acts 1983, 68th Leg., p. 3641, ch. 576, Sec. 1, eff. Jan. 1, 1984.

Sec. 92.107. TENANT'S FORWARDING ADDRESS. (a) The landlord is not obligated to return a tenant's security deposit or give the tenant a written description of damages and charges until the tenant gives the landlord a written statement of the tenant's forwarding address for the purpose of refunding the security deposit.

(b) The tenant does not forfeit the right to a refund of the security deposit or the right to receive a description of damages and charges merely for failing to give a forwarding address to the landlord.

Acts 1983, 68th Leg., p. 3641, ch. 576, Sec. 1, eff. Jan. 1, 1984.

Sec. 92.108. LIABILITY FOR WITHHOLDING LAST MONTH'S RENT. (a) The tenant may not withhold payment of any portion of the last month's rent on grounds that the security deposit is security for unpaid rent.

(b) A tenant who violates this section is presumed to have acted in bad faith. A tenant who in bad faith violates this section is liable to the landlord for an amount equal to three times the rent wrongfully withheld and the landlord's reasonable attorney's fees in a suit to recover the rent.

Acts 1983, 68th Leg., p. 3641, ch. 576, Sec. 1, eff. Jan. 1, 1984.

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.

Acts 1983, 68th Leg., p. 3641, ch. 576, Sec. 1, eff. Jan. 1, 1984.

92.107.

(c) If a landlord does not provide the tenant the notice as required by this section, the landlord forfeits the right to collect damages and charges from the tenant. Forfeiture of the right to collect damages and charges from the tenant is the exclusive remedy for the failure to provide the proper notice to the tenant.

[Greg H.]

in my prior response I thought you had already signed a lease and moved out with my reply that he would deduct the prorated rent from the deposit 

I do see by the format that you have a TAR lease.  Back to my question before, on page one does its the box checked for  notice to be given as 30 days or the last day of the month following the month in which notice is given ?

Most JP Judges are excepting text messages as a way to give notice but I would follow up a letter as well refencing the text messages 

I would also reference his text message regarding you violating the lease.  The bottom line is at this point you have not violated the lease.  You need to pay August rent in accordance with the lease(Depending on which box is checked in my paragraph above), return the keys promptly and provide a forwarding address

[Kirk Cochran]

Thanks for the help. Termination is effective "on the last day of the month following the month in which the notice was given." The landlord isn't obligated to prorate rent for the next month, and he won't. 

I plan to just pay the last month's rent, cover all my bases, and see if he returns the refund. If not or there is a dispute, we will go to court.

[Max T.]

you correctly paid 800 for July.

You owe 800 for August since you gave notice after July 1st. You are entitled to stay until the end of August.