PART 1. TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS
CHAPTER 80. MANUFACTURED HOUSING
The Manufactured Housing Division of the Texas Department of Housing and Community Affairs (Department) adopts 10 TAC Chapter 80, §§80.2, 80.20, 80.22, 80.25, 80.32, and 80.33, without changes to the proposal. The text of the adopted rules will not be republished in the Texas Register. The following rules are adopted with non-substantive changes and will be republished: §80.21 and §80.100. The proposed rules were published in the April 3, 2009, issue of the Texas Register (34 TexReg 2212).
The adopted rules are necessary to comply with requirements of the Federal Installation Standards that became effective on January 1, 2009.
The rules relating to installation standards are effective sixty (60) days following the date of publication and all other rules are effective thirty (30) days following the date of publication with the Texas Register of notice that the rules are adopted.
No requests were received for a public hearing to take comments on the proposed rules.
The Texas Board of Professional Engineers and one retailer submitted comments on the proposed rules.
Set forth below are comments suggesting revisions to specific subsections and the analysis and recommendations of staff.
General Comment: A commenter suggested the Department show the effective date of the forms in the footer of each form.
Department Response: All of the forms currently list the effective date (date the form was last revised) in the right corner of the footer.
§80.21(i)(2)(C) and (D). The Texas Board of Professional Engineers suggested the Department change the term "registered engineer" to "licensed professional engineer."
Department Response: The Department agrees to change the term to "licensed professional engineer."
§80.100(b)(8). A commenter suggested revising the Proper Site Preparation section of the disclosure by having a separate paragraph for new and used homes and to shorten the name of the disclosure form.
Department Response: The Department believes additional revisions are not necessary at this time.
§80.100(b)(10). A commenter suggested revising the Retail Monitoring Checklist to clarify that the Dispute Resolution Form required by 24 CFR §3288.5 is only for new homes.
Department Response: The Department agrees to clarify the form as suggested.
§80.100(b)(46). A commenter does not believe the form is necessary since the language is in the HUD code and thinks it could be reduced to one page.
Department Response: The Department disagrees because the Department created the form to ensure that the HUD language is conveyed to the consumer.
Except as noted below, the rules as proposed on April 3, 2009, are adopted as final rules with the following non-substantive changes.
§80.21(i)(2)(C) and (D). Changed the term "registered engineer" to "licensed professional engineer."
Figure: 10 TAC §80.100(b)(8). Removed "Proposed Form" and the revision marks indicating new text in the proposed form. The content of the form was not changed from the proposed version.
Figure: 10 TAC §80.100(b)(10). Added that the HUD required Dispute Resolution Form and Installation Program Disclosure are only for new homes, added 1201 in the 162 disclosure requirement, and removed deletion of the insulation disclosure requirement and added that the requirement is per the Federal Trade Commission. Also removed "Proposed Form" and the revision marks indicating new and/or deleted text in the proposed form.
Figure: 10 TAC §80.100(b)(12). Removed "Proposed Form" and the revision marks indicating new text in the proposed form. The content of the form was not changed from the proposed version.
Figure: 10 TAC §80.100(b)(16). Removed "Proposed Form" and the revision marks indicating new text in the proposed form. The content of the form was not changed from the proposed version.
Figure: 10 TAC §80.100(b)(17). Added additional information relating to electrical testing and operational testing. Also removed "Proposed Form" and the revision marks indicating new text in the proposed form.
Figure: 10 TAC §80.100(b)(33). Removed "Proposed Form" and the revision marks indicating new text in the proposed form. The content of the form was not changed from the proposed version.
Figure: 10 TAC §80.100(b)(38). Removed "Proposed Form" and the revision marks indicating new and deleted text in the proposed form. The content of the form was not changed from the proposed version.
Figure: 10 TAC §80.100(b)(45). Removed "Proposed Form" and the revision marks indicating new text in the proposed form. The content of the form was not changed from the proposed version.
Figure: 10 TAC §80.100(b)(46). Removed "Proposed Form" from the form. The content of the form was not changed from the proposed version.
The following is a restatement of the rules' factual basis:
Section 80.2(16) is adopted (without changes) to add definition for Frost Line Zone and renumber definitions (17) through (26).
Section 80.20(b) is adopted (without changes) to indicate the section is only relating to used manufactured homes.
Section 80.20(e) is adopted (without changes) to remove subsection.
Section 80.21(a) is adopted (without changes) to add new subsection to reference installation of new homes.
Section 80.21(b) is adopted (without changes) to move previous (a) to (b) and indicate that this section pertains to used homes.
Section 80.21(c) is adopted (without changes) to reletter (b) to (c).
Section 80.21(d) is adopted (without changes) to reletter (c) to (d).
Section 80.21(e) is adopted (without changes) to reletter (d) to (e) and revise section to differentiate site preparation responsibility for new and used homes.
Section 80.21(f) is adopted (without changes) to reletter (e) to (f).
Section 80.21(g) is adopted (without changes) to reletter (f) to (g).
Section 80.21(h) is adopted (without changes) to reletter (g) to (h) and revise section to differentiate drainage responsibility for new and used homes.
Section 80.21(i) is adopted (with changes) relating to Frost Line Zone.
Section 80.22(a) is adopted (without changes) to clarify that this section only pertains to used homes.
Section 80.25(i)(1) is adopted (without changes) to clarify that the last sentence of paragraph only relates to used homes.
Section 80.32(g) is adopted (without changes) to clarify in last sentence of subsection that the installer of a new home is responsible for the required site preparation.
Section 80.33(k)(1) is adopted (without changes) to clarify that the site preparation notice is only for used homes.
Section 80.33(k)(3) is adopted (without changes) to reference §1201.255 of the Standards Act as requirement to promulgate disclosure form.
Section 80.100(a)(12) is adopted (without changes) to revise name of form to clarify it is for used homes.
Section 80.100(a)(33) is adopted (without changes) to revise name of form to clarify it is for used homes.
Section 80.100(a)(45) and (46) is adopted (without changes) to add new form number (45) and (46) to the list of forms.
Figure: 10 TAC §80.100(b)(8) is adopted (with changes) to revise the site preparation section in the Consumer Disclosure Statement.
Figure: 10 TAC §80.100(b)(10) is adopted (with changes) to update the Retail Monitoring Checklist to include additional requirements and remove the Wind Zone Notice and Insulation Disclosure that are no longer required.
Figure: 10 TAC §80.100(b)(12) is adopted (with changes) to update the form to clarify it only pertains to used homes.
Figure: 10 TAC §80.100(b)(16) is adopted (with changes) to clarify installation requirements of new and used homes.
Figure: 10 TAC §80.100(b)(17) is adopted (with changes) to update the Installation Checklist to clarify the reference to the site preparation notice is only for used homes, added information regarding electrical testing and operational testing.
Figure: 10 TAC §80.100(b)(33) is adopted (with changes) to clarify the site preparation notice is only for used homes.
Figure: 10 TAC §80.100(b)(38) is adopted (with changes) to clarify installation requirements of new and used homes.
Figure: 10 TAC §80.100(b)(45) is adopted (with changes) to add new Spanish version of the Consumer Disclosure Statement.
Figure: 10 TAC §80.100(b)(46) is adopted (with changes) to add new HUD required installation program disclosure.
SUBCHAPTER A. CODES, STANDARDS, TERMS, FEES AND ADMINISTRATION
The amended rule is adopted under the Texas Manufactured Housing Standards Act, Occupations Code, Chapter 1201, §1201.052, which provides the Department with authority to amend, add, and repeal rules governing the Manufactured Housing Division of the Department and under Texas Government Code, Chapter 2306, §2306.6014 and §2306.6020, which authorizes the board to adopt rules as necessary to administer and enforce the manufactured housing program through the Manufactured Housing Division.
No other statute, code, or article is affected by the adoption of the amended rule.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 2009.
TRD-200901802
Joe A. Garcia
Executive Director, Manufactured Housing Division
Texas Department of Housing and Community Affairs
Effective date: June 21, 2009
Proposal publication date: April 3, 2009
For further information, please call: (512) 475-2206
The amended rules are adopted under the Texas Manufactured Housing Standards Act, Occupations Code, Chapter 1201, §1201.052, which provides the Department with authority to amend, add, and repeal rules governing the Manufactured Housing Division of the Department and under Texas Government Code, Chapter 2306, §2306.6014 and §2306.6020, which authorizes the board to adopt rules as necessary to administer and enforce the manufactured housing program through the Manufactured Housing Division.
No other statute, code, or article is affected by the adoption of the amended rules.
§80.21.Requirements for the Installation of Manufactured Homes.
(a) All new manufactured homes shall be installed by a licensed installer and in accordance with the home manufacturer's DAPIA-approved installation instructions.
(b) All used manufactured homes shall be installed by a licensed installer to resist overturning and lateral movement of the home, and the installation must be completed in accordance with instructions appropriate for the Wind Zone where the home is to be installed as per one of the following:
(1) the home manufacturer's DAPIA-approved installation instructions;
(2) the state's generic standards set forth in §§80.22, 80.23, 80.24, and 80.25 of this subchapter (relating to Installation Standards and Device Approvals);
(3) the instructions for a stabilization system registered with the Department in accordance with §80.26 of this subchapter (relating to Registration of Stabilizing Components and Systems); or
(4) the instructions for a special stabilization system which:
(A) may or may not be a permanent foundation;
(B) is for a particular manufactured home or an identified class of manufactured homes to be installed at a particular area with similar soil properties according to county soil survey or other geotechnical reports; and
(C) is either:
(i) a pre-existing foundation for which a professional engineer or architect licensed in Texas has issued written approval for the installation of a particular home, and the written approval shall be submitted to the Department with the installation report; or
(ii) installed in accordance with a custom designed stabilization system drawing that is stamped by a Texas licensed professional engineer or architect. A copy of the stabilization system drawing must be forwarded to the Department along with the installation report.
(c) When a home is installed on a stabilization system registered with the Department or a special stabilization system, the installer must follow the home manufacturer's DAPIA-approved installation instructions for any aspect of the installation that is not covered by the system's installation instructions or drawings.
(d) The installer must use stabilizing components that have the required capacity and install them according to the anchor or stabilizing component manufacturer's current installation instructions. All stabilizing components must be resistant to all effects of weathering including that encountered along the Texas gulf coast. Anchors must be made resistant to corrosion. Nonconcrete stabilizing components and systems for use within 1500 feet of the coastline shall be specifically certified for this use. Preservative treated (PT) wood components shall conform to the applicable standards issued by the American Wood Preserver's Association and referenced by the latest edition of the International Residential Code. The use of re-conditioned equipment (i.e. anchor, strap, and clip) or any anchoring component by licensed installer on the new installations is not permitted. Homeowners are exempt from this requirement provided the integrity of the component is acceptable and approved by the state and the original product number, vendor name, and/or patent number must be legible on the product.
(e) Site Preparation Responsibilities and Requirements:
(1) The responsible installer of a new manufactured home is responsible for the proper preparation of the site where the manufactured home will be installed.
(2) A consumer acquiring a used manufactured home to be installed is responsible for the proper preparation of the site where the manufactured home will be installed except as set forth in §80.22 of this chapter (relating to Generic Standards for Moisture and Ground Vapor Controls).
(3) Whenever a licensed retailer intends to sell a used manufactured home, regardless of where it is located or is to be located, the retailer is required to give the consumer the Site Preparation Notice, for signature by the consumer, in the form set forth in Subchapter I of this chapter (relating to Forms) PRIOR to the execution of any binding sales agreement.
(4) Whenever a licensed installer proposes to move a used manufactured home, the installer is required to give the consumer the Site Preparation Notice, for signature by the consumer, in the form set forth in Subchapter I of this chapter PRIOR to entering into a binding agreement to move that home.
(f) If at the time of installation or within 90 days thereafter as stated on the contract, the retailer or installer provides the materials for skirting or contracts for the installation of skirting, the retailer or installer is responsible for installing any required moisture and ground vapor control measures in accordance with the home installation instructions, specifications of a registered stabilization system, or the generic standards and shall provide for the proper cross ventilation of the crawl space. If the consumer contracts with a person other than the retailer or installer for the skirting, the consumer is responsible for installing the moisture and ground vapor control measures and for providing for the proper cross ventilation of the crawl space.
(g) Clearance: If the manufactured home is installed according to the state's generic standards, a minimum clearance of 18 inches between the ground and the bottom of the floor joists must be maintained. In addition, the installer shall be responsible for installing the home with sufficient clearance between the I-Beams and the ground so that after the crossover duct prescribed by the manufacturer is properly installed it will not be in contact with the ground. Refer to §80.25 of this chapter (relating to Generic Standards for Multi-Section Connections Standards) for additional requirements for utility connections. The Installer must remove all debris, sod, tree stumps and other organic materials from all areas where footings are to be located.
(h) Drainage: The Installer is responsible for proper site drainage where a new manufactured home is to be installed unless the home is installed in a rental community. The consumer is responsible for proper site drainage where a used manufactured home is to be installed unless the home is installed in a rental community. Drainage prevents water build-up under the home. Water build-up may cause shifting or settling of the foundation, dampness in the home, damage to siding and bottom board, buckling of walls and floors, delamination of floor decking and problems with the operation of windows and doors.
(i) Frost Line Zone.
(1) The following Texas counties have a 12 inch frost line depth to consider for the installation of a new manufactured home: Armstrong, Bailey, Briscoe, Carson, Castro, Childress, Cochran, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Floyd, Foard, Gray, Hale, Hall, Hansford, Hardeman, Hartley, Hemphill, Hockley, Hutchinson, King, Knox, Lamb, Lipscomb, Lubbock, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Sherman, Swisher, Wheeler, and Wilbarger.
(2) For a new home to be installed in a Frost Line Zone county, footings placed in freezing climates must be designed using methods and practices that prevent the effects of frost heave by one of the following methods:
(A) Conventional footings. Conventional footings must be placed below the frost line depth for the site unless an insulated foundation or monolithic slab is used (refer to 24 CFR §3285.312(b)(2) and (3)).
(B) This is not subject to the provisions in 24 CFR §3285.2(c) that also require review by the manufacturer and approval by its DAPIA for any variations to the manufacturer's installation instructions for support and anchoring.
(C) Monolithic slab systems. A monolithic slab is permitted above the frost line when all relevant site-specific conditions, including soil characteristics, site preparation, ventilation, and insulative properties of the under floor enclosure, are considered and anchorage requirements are accommodated as set out in 24 CFR §3285.401. The monolithic slab system must be designed by a licensed professional engineer or registered architect:
(i) In accordance with acceptable engineering practice to prevent the effects of frost heave; or
(ii) In accordance with SEI/ASCE 32-01 as defined in 24 CFR §3285.4.
(D) Insulated foundations. An insulated foundation is permitted above the frost line, when all relevant site-specific conditions, including soil characteristics, site preparation, ventilation, and insulative properties of the under floor enclosure, are considered, and the foundation is designed by a licensed professional engineer or registered architect:
(i) In accordance with acceptable engineering practice to prevent the effects of frost heave; or
(ii) In accordance with SEI/ASCE 32-01 as defined in 24 CFR §3285.4.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 2009.
TRD-200901803
Joe A. Garcia
Executive Director, Manufactured Housing Division
Texas Department of Housing and Community Affairs
Effective date: July 21, 2009
Proposal publication date: April 3, 2009
For further information, please call: (512) 475-2206
The amended rules are adopted under the Texas Manufactured Housing Standards Act, Occupations Code, Chapter 1201, §1201.052, which provides the Department with authority to amend, add, and repeal rules governing the Manufactured Housing Division of the Department and under Texas Government Code, Chapter 2306, §2306.6014 and §2306.6020, which authorizes the board to adopt rules as necessary to administer and enforce the manufactured housing program through the Manufactured Housing Division.
No other statute, code, or article is affected by the adoption of the amended rules.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 2009.
TRD-200901804
Joe A. Garcia
Executive Director, Manufactured Housing Division
Texas Department of Housing and Community Affairs
Effective date: June 21, 2009
Proposal publication date: April 3, 2009
For further information, please call: (512) 475-2206
The amended rule is adopted under the Texas Manufactured Housing Standards Act, Occupations Code, Chapter 1201, §1201.052, which provides the Department with authority to amend, add, and repeal rules governing the Manufactured Housing Division of the Department and under Texas Government Code, Chapter 2306, §2306.6014 and §2306.6020, which authorizes the board to adopt rules as necessary to administer and enforce the manufactured housing program through the Manufactured Housing Division.
No other statute, code, or article is affected by the adoption of the amended rule.
§80.100.List of Forms.
(a) The following list is in numerical order with the forms located in subsection (b) of this section.
(1) Application for Manufacturer's License.
(2) Application for Retailer, Broker, Installer and/or Rebuilder's License.
(3) Application for Retailer with Branch Locations License.
(4) Application for Salesperson's License.
(5) Licensing Surety Bond.
(6) Licensing Security Agreement.
(7) Manufacturer's Certificate of Origin (MCO).
(8) Consumer Disclosure Statement.
(9) Warranty and Disclosure for a Used Manufactured Home.
(10) Retail Monitoring Checklist.
(11) Consumer Notice of Licensed and Bonded Location.
(12) Notice and Informed Consent to the Installation of a Used Manufactured Home on an Improperly Prepared Site.
(13) Formaldehyde Notice.
(14) Texas Inventory Finance Security Form.
(15) Broker Disclosure Form.
(16) Notice of Installation (Form T).
(17) Installation Checklist.
(18) Estimate for Reassigned Warranty Work.
(19) Application for Statement of Ownership and Location.
(20) Affidavit of Fact for Real Property.
(21) Affidavit of Fact.
(22) Affidavit of Error.
(23) Affidavit of Fact for Right of Survivorship.
(24) Addendum to Application for SOL.
(25) Release or Foreclosure of Lien (Form B).
(26) Statement of Inheritance (Form C).
(27) Taxing Entity Application for Texas Seal (Form S).
(28) Multiple Application Log (Form M).
(29) Instructions to Third Party Closer.
(30) Notice of Lien for Tax Lien/Release Form.
(31) Notice of Lien to Perfect a Lien (Other than Tax Lien) Form.
(32) Notification of filing status as a Central Tax Collector.
(33) Site Preparation Notice for Used Homes Form.
(34) Sample of Statement of Ownership and Location.
(35) Application for License Renewal (other than a salesperson).
(36) Right of Rescission Waiver Form.
(37) List of Unlicensed Installers Form.
(38) Probationary Notice of Installation (Form T).
(39) Notice of Intent to Acquire Ownership of an Abandoned Home.
(40) Affidavit of Fact for Abandonment.
(41) Disclosure to Consumer (Possible Need to Vacate Home if Financing does not Close).
(42) Application for Salesperson's License Renewal.
(43) Application for License Instruction Provider.
(44) Statement from Tax Assessor-Collector.
(45) Consumer Disclosure Statement (Spanish Version).
(46) HUD Required Installation Program Disclosure to Consumer.
(b) Forms.
(1) Application for Manufacturer's License.
Figure: 10 TAC §80.100(b)(1) (No change.)
(2) Application for Retailer, Broker, Installer and/or Rebuilder's License.
Figure: 10 TAC §80.100(b)(2) (No change.)
(3) Application for Retailer with Branch Locations License.
Figure: 10 TAC §80.100(b)(3) (No change.)
(4) Application for Salesperson's License.
Figure: 10 TAC §80.100(b)(4) (No change.)
(5) Licensing Surety Bond.
Figure: 10 TAC §80.100(b)(5) (No change.)
(6) Licensing Security Agreement.
Figure: 10 TAC §80.100(b)(6) (No change.)
(7) Manufacturer's Certificate of Origin (MCO).
Figure: 10 TAC §80.100(b)(7) (No change.)
(8) Consumer Disclosure Statement.
Figure: 10 TAC §80.100(b)(8) (.pdf)
(9) Warranty and Disclosure for a Used Manufactured Home.
Figure: 10 TAC §80.100(b)(9) (No change.)
(10) Retail Monitoring Checklist.
Figure: 10 TAC §80.100(b)(10) (.pdf)
(11) Consumer Notice of Licensed and Bonded Location.
Figure: 10 TAC §80.100(b)(11) (No change.)
(12) Notice and Informed Consent to the Installation of a Used Manufactured Home on an Improperly Prepared Site.
Figure: 10 TAC §80.100(b)(12) (.pdf)
(13) Formaldehyde Notice.
Figure: 10 TAC §80.100(b)(13) (No change.)
(14) Texas Inventory Finance Security Form.
Figure: 10 TAC §80.100(b)(14) (No change.)
(15) Broker Disclosure Form.
Figure: 10 TAC §80.100(b)(15) (No change.)
(16) Notice of Installation (Form T).
Figure: 10 TAC §80.100(b)(16) (.pdf)
(17) Installation Checklist.
Figure: 10 TAC §80.100(b)(17) (.pdf)
(18) Estimate for Reassigned Warranty Work.
Figure: 10 TAC §80.100(b)(18) (No change.)
(19) Application for Statement of Ownership and Location.
Figure: 10 TAC §80.100(b)(19) (No change.)
(20) Affidavit of Fact for Real Property.
Figure: 10 TAC §80.100(b)(20) (No change.)
(21) Affidavit of Fact.
Figure: 10 TAC §80.100(b)(21) (No change.)
(22) Affidavit of Error.
Figure: 10 TAC §80.100(b)(22) (No change.)
(23) Affidavit of Fact for Right of Survivorship.
Figure: 10 TAC §80.100(b)(23) (No change.)
(24) Addendum to Application for SOL.
Figure: 10 TAC §80.100(b)(24) (No change.)
(25) Release or Foreclosure of Lien (Form B).
Figure: 10 TAC §80.100(b)(25) (No change.)
(26) Statement of Inheritance (Form C).
Figure: 10 TAC §80.100(b)(26) (No change.)
(27) Taxing Entity Application for Texas Seal (Form S).
Figure: 10 TAC §80.100(b)(27) (No change.)
(28) Multiple Application Log (Form M).
Figure: 10 TAC §80.100(b)(28) (No change.)
(29) Instructions to Third Party Closer.
Figure: 10 TAC §80.100(b)(29) (No change.)
(30) Notice of Lien for Tax Lien/Release Form.
Figure: 10 TAC §80.100(b)(30) (No change.)
(31) Notice of Lien to Perfect a Lien (Other than Tax Lien) Form.
Figure: 10 TAC §80.100(b)(31) (No change.)
(32) Notification of filing status as a Central Tax Collector.
Figure: 10 TAC §80.100(b)(32) (No change.)
(33) Site Preparation Notice for Used Homes Form.
Figure: 10 TAC §80.100(b)(33) (.pdf)
(34) Sample of Statement of Ownership and Location.
Figure: 10 TAC §80.100(b)(34) (No change.)
(35) Application for License Renewal (other than a salesperson).
Figure: 10 TAC §80.100(b)(35) (No change.)
(36) Right of Rescission Waiver Form.
Figure: 10 TAC §80.100(b)(36) (No change.)
(37) List of Unlicensed Installers Form.
Figure: 10 TAC §80.100(b)(37) (No change.)
(38) Probationary Notice of Installation (Form T).
Figure: 10 TAC §80.100(b)(38) (.pdf)
(39) Notice of Intent to Acquire Ownership of an Abandoned Home.
Figure: 10 TAC §80.100(b)(39) (No change.)
(40) Affidavit of Fact for Abandonment.
Figure: 10 TAC §80.100(b)(40) (No change.)
(41) Disclosure to Consumer (Possible Need to Vacate Home if Financing does not Close).
Figure: 10 TAC §80.100(b)(41) (No change.)
(42) Application for Salesperson's License Renewal.
Figure: 10 TAC §80.100(b)(42) (No change.)
(43) Application for License Instruction Provider.
Figure: 10 TAC §80.100(b)(43) (No change.)
(44) Statement from Tax Assessor-Collector.
Figure: 10 TAC §80.100(b)(44) (No change.)
(45) Consumer Disclosure Statement (Spanish Version).
Figure: 10 TAC §80.100(b)(45) (.pdf)
(46) HUD Required Installation Program Disclosure to Consumer.
Figure: 10 TAC §80.100(b)(46) (.pdf)
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 2009.
TRD-200901805
Joe A. Garcia
Executive Director, Manufactured Housing Division
Texas Department of Housing and Community Affairs
Effective date: June 21, 2009
Proposal publication date: April 3, 2009
For further information, please call: (512) 475-2206
CHAPTER 304. WARRANTIES AND BUILDING AND PERFORMANCE STANDARDS
SUBCHAPTER A. GENERAL PROVISIONS
To correct a cross reference, the Texas Residential Construction Commission ("commission") adopts amendments to 10 TAC §304.1(c)(9), regarding the term "habitable area." In defining the term "habitable area," §304.1(c)(9) cross references the term "living space," which is found in §300.10(18) rather than in §301.1(14). The commission adopts the amendments to delete the reference to §301.1(14) and to provide the correct citation of §300.10 with minor non-substantive changes to the proposed text as published in the February 27, 2009, issue of the Texas Register (34 TexReg 1333).
The commission received no comments on the proposed amendment.
The amendment is adopted pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16 of the Property Code; Property Code Chapter 430, which authorizes the commission to adopt rules to implement statutory warranties and building and performance standards; and the Administrative Procedure Act, Texas Government Code, Chapter 2001.
No other statutes, articles, or codes are affected by the adopted rule amendment.
§304.1.General Provisions.
(a) Scope. This chapter describes the minimum standards of performance for the various elements or components of a home as described. Third-party inspectors appointed pursuant to §313.11 of this title will make recommendations for repair or replacement of those elements or components of a home that do not meet these standards during the applicable warranty period based upon the expected level of performance described in these standards for residential construction to which the standards apply. If an element or component of a home is not described particularly in this chapter, the element or component shall be constructed in accordance with any written agreement or, if there is no agreement, in accordance with usual and customary residential construction practices and the element or component shall perform for the purpose for which it is intended for the period of the applicable warranty. All home construction shall comply with applicable Codes.
(b) Effective Date. The provisions of this chapter shall apply to all applicable residential construction projects that must be registered with the commission pursuant to chapter 303, subchapter B, of this title if the construction commences on or after June 1, 2005. Construction commences on the earlier of the date that the parties enter into an agreement for a transaction governed by the Act or the date that work commences.
(c) Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.
(1) Adverse effect--A tangible condition that substantially impairs the functionality of the habitable areas of the home.
(2) Builder Responsibility--A statement of the corrective action required by the builder to repair the construction defect and any other damage resulting from making the required repair. Parties may agree to an alternative remedy.
(3) Code--The International Residential Code or, if the context requires, the National Electrical Code.
(4) Electrical Standard--a standard contained in the version of the National Electrical Code (NEC), as follows:
(A) for residential construction located in a municipality or the extraterritorial jurisdiction of a municipality, the version of the NEC applicable to electrical aspects of residential construction in the municipality under Local Government Code §214.214 and which is effective on the date of commencement of construction of the home;
(B) for residential construction located in an unincorporated area not in the extraterritorial jurisdiction of a municipality, the version of the NEC applicable to electrical aspects of residential construction in the municipality that is the county seat of the county in which the construction is located and which is effective on the date of commencement of construction of the home; and
(C) for residential construction located in an unincorporated area in a county that does not contain an incorporated area, the version of the NEC that existed on May 1, 2001.
(5) Excessive or excessively--a quantity, amount or degree that exceeds that which is normal, usual or reasonable under the circumstance.
(6) Exclusion--items, conditions or situations not warranted or not covered by a performance standard.
(7) Extreme Weather Condition(s)--weather conditions in excess of or outside of the scope of the design criteria stated or assumed for the circumstance or locale in the Code.
(8) The International Residential Code (IRC)--substantial compliance with the non-electrical standards contained in the version of the IRC for One- and Two-Family Dwellings published by the International Code Council (ICC) as follows:
(A) for residential construction located in a municipality or the extraterritorial jurisdiction of a municipality, the version of the IRC applicable to non-electrical aspects of residential construction in the municipality under Local Government Code §214.212 and which is effective on the date of commencement of construction of the home;
(B) for residential construction located in an unincorporated area not in the extraterritorial jurisdiction of a municipality, the version of the IRC applicable to non-electrical aspects of residential construction in the municipality that is the county seat of the county in which the construction is located and which is effective on the date of commencement of construction of the home; and
(C) for residential construction located in an unincorporated area in a county that does not contain an incorporated area, the version of the IRC that existed on May 1, 2001.
(9) Habitable Area--a living space as defined in §300.10 of this title.
(10) Homeowner Responsibility--an action required by the homeowner for proper maintenance or care of the home or the element or component of the home concerned. A homeowner's failure to substantially comply with a stated homeowner responsibility creates an exclusion to the warranty for the performance standard.
(11) Major Structural Components--the load-bearing portions of the following elements of a home:
(A) Footings and Foundations;
(B) Beams;
(C) Headers;
(D) Girders;
(E) Lintels;
(F) Columns (other than a column that is designed to be cosmetic);
(G) Load-Bearing portions of walls and partitions;
(H) Roof framing systems, to include ceiling framing;
(I) Floor systems; and
(J) Masonry Arches.
(12) Manufactured Product--a component of the home that was manufactured away from the site of the home and that was installed in the home without significant modifications to the product as manufactured. Manufactured products commonly installed in residential construction include but are not limited to dishwashers, cook tops, ovens, refrigerators, trash compactors, microwave ovens, kitchen vent fans, central air conditioning coils and compressors, furnace heat exchangers, water heaters, carpet, windows, doors, light fixtures, fireplace inserts, pipes and electrical wires. For purposes of this chapter, a manufactured product includes any component of a home for which the manufacturer provides a warranty, provided that the manufacturer permits transfer of the warranty to the homeowner.
(13) Original Construction Elevations--actual elevations of the foundation taken prior to substantial completion of the residential construction project. Such actual elevations shall include elevations of porches and garages if those structures are part of a monolithic foundation. To establish original construction elevations, elevations shall be taken at a rate of approximately one elevation per 100 square feet showing a reference point, subject to obstructions. Each elevation shall describe the floor. If no such actual elevations are taken then the foundation for the habitable areas of the home are presumed to be level +/- 0.75 inch (three-quarters of an inch) over the length of the foundation.
(14) Performance Standard(s)--the standard(s) to which a home or an element or component of a home constructed as a part of new home construction or a material improvement or interior renovation must perform.
(15) Span--the distance between two supports.
(16) Substantial Completion--the later of:
(A) the stage of construction when a new home, addition, improvement, or alteration to an existing home is sufficiently complete that the home, addition, improvement or alteration can be occupied or used for its intended purpose; or
(B) if required, the issuance of a final certificate of inspection or occupancy by the applicable governmental authority.
(d) Resolving conflicts among standards. When an inconsistency exists between the Code, manufacturer's instructions and specifications, the standard required by the United States Department of Housing and Urban Development for Federal Housing Administration or Veterans Administration programs, ANSI/ASHRAE Standard (62.2-2003) or the commission-adopted performance standards, the most restrictive requirement shall apply.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 2009.
TRD-200901871
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Effective date: May 31, 2009
Proposal publication date: February 27, 2009
For further information, please call: (512) 463-3926
The Texas Residential Construction Commission ("commission") adopts amendments to Texas Administrative Code, Title 10, Part 7, §313.20, related to the appeal of the State-Sponsored Inspection and Dispute Resolution Process (SIRP). The commission adopts the amendments without changes to the proposed text as published in the March 6, 2009, issue of the Texas Register (34 TexReg 1511). The commission received no comments on the published text.
The amendments are needed to correct errors in the text published for adoption in the December 26, 2008, issue of the Texas Register.
During an open meeting of the commission on December 10, 2008, the commission issued an order to adopt amendments to §313.20, which were previously published for comment in the October 24, 2008, issue of the Texas Register (33 TexReg 8709). The adoption order included changes to the proposed text. The text of the commission's order of adoption was published in the December 26, 2008, issue of the Texas Register (33 TexReg 10430.) Although the preamble published contained the rule language consistent with the commission's order, the text of the rule submitted for publication to the Secretary of State's office did not reflect the order accurately. As a result, the text of the rule that became effective on January 1, 2009, does not accurately reflect the commission's order. The amendments adopted herein reflect the correct language of the commission's order. The commission's preamble published in the December 26, 2008, issue of the Texas Register states fully the commission's reasons for adopting the amended text.
The rule amendments to 10 TAC §313.20 require that SIRP appeals be submitted on the commission's appeal form, identify the subject of the appeal, provide the ground or grounds for lodging the appeal, and state the performance standard or method or repair the homeowner, builder or remodeler asserts is correct when appealing on those grounds.
The adopted amendments to 10 TAC §313.20(b) track the language adopted by the commission in its order published in the December 26, 2008, issue of the Texas Register (33 TexReg 10430). "A builder or remodeler submitting an appeal to a third-party inspector's report that did not, before the inspection, offer to make repairs or have repairs made substantially equivalent to those required by the findings of the final report confirming the defect must submit a payment of $150 with the appeal form, as a deposit for the cost of the inspection.
"(1) A builder or remodeler's appeal received without payment or without evidence that an offer of repair as required under this subsection was made to the homeowner prior to the inspection will not be considered timely filed, unless the payment or evidence of offer is received before the fifteenth day after the date of the commission's letter notifying the parties of their right to appeal.
"(2) If the builder or remodeler's stated grounds for appeal are substantially affirmed in their entirety by the appeal panel, the $150 fee paid will be deducted from any amount due by the builder or remodeler for reimbursement of the inspection fee pursuant to §313.18 of this chapter, or if none of the allegedly defective items subject to inspection are finally determined by a final non-appealable report issued by the commission to be construction defects, the $150 fee will be refunded."
The adopted amendments to 10 TAC §313.20(d) track the language adopted by the commission in its order published in the December 26, 2008, issue of the Texas Register. In the preamble of the order the commission stated its intent to adopt 10 TAC §313.20(d), as follows:
"A homeowner or builder or remodeler that asserts on appeal that the third-party inspector's recommendation for repair for an item found to be defective is unreasonable must state the method of repair that the homeowner, builder or remodeler asserts is reasonable. Failure to state the method of repair that the homeowner or builder or remodeler asserts is reasonable under this subsection will invalidate the appeal on that ground for the item appealed. If the basis of the builder or remodeler's appeal is that no defect exists and therefore no repair is required, the builder or remodeler must explain why the third-party inspector's finding of the existence of a defect is incorrect, why no defect exists, and thus no method of repair would be reasonable."
The commission adopts the amendments under Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16, Property Code. The commission adopts the rule amendments to implement Subtitle D, Title 16 of the Property Code, specifically chapter 429 which describes the appeal of the third-party inspector's report described in chapter 428.
The statutory provisions affected by the proposed rule amendments and rule review are set forth in Title 16, Property Code §408.001 and §429.001.
No other statutes, articles, or codes are affected by this rule adoption.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 11, 2009.
TRD-200901870
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Effective date: May 31, 2009
Proposal publication date: March 6, 2009
For further information, please call: (512) 463-3926