Can a landlord keep a deposit for a gate remote claiming that it was a “fee”?

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Can a landlord keep a deposit for a gate remote claiming that it was a “fee”?

When I first moved from out of state I rented an apartment for 1 year. The property is gated and I was given a choice of a gate code to enter on the keypad or a remote for my car. The remote carried a $35 deposit which seemed reasonable so I wrote them a check for $35 and “remote deposit” on the check. When I moved out a year later and returned the remote to them they kept the $35 claiming that it was a fee. They failed to amend my lease with either a $35 deposit or $35 fee for this remote.

Asked on April 18, 2012 under Real Estate Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

The issue was what this was characterized at when you paid it. If it was described as a deposit and you returned the item in good repair, you should get your money back--while a fee or a non-refundable desposit would have been legal, the landlord cannot after the fact turn something which reasonably would have been taken to be a refundable deposit into a non-refundable one or a fee. It's what the payment was described as at the time it was made which controls.

That said, if the landlord will not return the money, you may have no meaningful remedy--the only way to get the money if the landord doesn't voluntarily provide it, is to sue, and it is impossible to imagine that a lawsuit, even one in small claims court is worth it for $35.


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