Background
Kurt Kirkman leased a single-family home in south Austin from Adrienne Marco from July 2019 to June 2022, paying a $2,400 security deposit plus a $350 pet deposit for his dog. When Kirkman vacated in June 2022 after having the house professionally cleaned, Marco sent an itemized deduction list totaling $7,925—far exceeding the combined $2,750 deposits. The list included major charges: $3,900 to sand and refinish hardwood floors, $1,200 for painting throughout the house, $425 for window blinds, $275 for sheetrock patches, and numerous smaller repairs totaling over $5,000 more than the deposits.
Kirkman immediately challenged the deductions, demanding receipts, invoices, and photographs. Marco did not respond to his deadline or provide supporting documentation. Instead, when Kirkman sued for bad-faith retention under Texas Property Code § 92.109, Marco provided invoices only after litigation began. The case went to bench trial, with testimony from Kirkman that the property was in better condition at move-out than at move-in and from Marco claiming extensive damage from negligence and the tenant’s dog.
The Court’s Holding
The Texas Court of Appeals affirmed the trial court’s judgment that Marco retained Kirkman’s security deposit in bad faith. Marco was ordered to pay Kirkman $100 plus three times the wrongfully withheld deposit amount ($2,750), totaling $8,350 in damages, plus attorney’s fees and costs. The appellate court upheld the trial court’s findings that Marco failed to meet her statutory burden—imposed by Property Code § 92.109(c)—of proving that retention of any portion of the deposit was reasonable.
The court found that the trial evidence did not establish that the claimed damages were caused by the dog or exceeded normal wear and tear, with the exception of conflicting evidence regarding tree removal and HVAC service. Critically, the trial court’s implicit finding that Marco intended to deprive Kirkman of a lawfully due refund was supported by her failure to provide invoices and photographs when demanded, her provision of only verbal estimates for the largest charge ($3,900), and her inability to produce cancelled checks or bank records showing the work was actually performed. The absence of the $3,900 flooring invoice—despite Marco’s testimony about obtaining quotes—particularly undermined the reasonableness of that claim.
Key Takeaways
- Under Property Code § 92.109(c), the landlord bears the burden of proving security deposit retention was reasonable; the tenant need not independently prove bad faith with direct evidence of intent to defraud.
- A landlord’s failure to provide contemporaneous documentation (invoices, receipts, photographs) when a tenant demands it after move-out can constitute evidence supporting a bad-faith finding.
- Damages falling within normal wear and tear—such as nail holes from picture hanging, small wall indentations, loose fixtures, and flooring wear in covered areas—cannot justify security deposit deductions.
- Deduction claims significantly exceeding the deposit amount, lacking supporting invoices, and claimed without immediate documentation create vulnerability to bad-faith liability and treble-damages exposure.
Why It Matters
This decision reinforces that Texas Property Code § 92.109 imposes a heavy burden on landlords seeking to retain security deposits. Landlords must not only substantiate damage claims but do so with contemporaneous evidence—invoices showing work was actually performed and paid for, not post-hoc verbal estimates or promises to document later. The court’s refusal to credit a $3,900 flooring charge without an invoice, despite Marco’s testimony that she had obtained estimates, demonstrates that testimony alone cannot overcome the landlord’s documentary burden.
For landlords, the lesson is clear: maintain records at the time deductions are made, provide those records promptly when tenants demand them, and ensure that repair invoices reflect actual charges paid. For tenants, this decision confirms the power of prompt, written challenge to deductions—Marco’s failure to respond to Kirkman’s documented demand, combined with her later inability to produce substantiating evidence, triggered the statutory presumption of bad faith and exposed her to liability for treble damages plus nearly $54,000 in the tenant’s attorney’s fees and costs.