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 without changes §§80.203
and 80.206. The text to the adopted rules without changes will not be republished.
The following new rules are adopted with changes and will be republished:
New §§80.181- 80.183, 80.200, 80.201, 80.204, 80.205 and 80.209.
The following amended rules are adopted with changes and will be republished: §§80.127
and 80.207. The proposed rules were published in the September 19, 2003 issue
of the
Texas Register
(28 TexReg 8076).
The effective date of the rules is thirty (30) days following the date
of publication with the
Texas Register
of
notice that the rule has been adopted.
A public hearing was held on October 28, 2003. The following interested
groups or associations presented comments either at the hearing or in writing:
Texas Manufactured Housing Association ("TMHA").
Set forth below are comments from TMHA and other parties suggesting revisions
to specific subsections and the analysis and recommendations of staff.
Section 80.127(d) - In the past, a failure to perform warranty work was
not, in and of itself, a violation. There had to be an order and a violation
of the order, too. This changes it so that if a licensee does not perform
required warranty work within the required period, that would be a violation.
A number of commenters argued that this proposed language put licensees at
a severe disadvantage in warranty disputes. A commenter stated that §80.127(d)
and §80.132(1)(A) were in conflict. The commenter went on to indicate
that under §80.132(1)(A) the consumer was insured to notify the retailer
or manufacturer, providing an opportunity for voluntary compliance. It indicated
that the 40 day period was arbitrary and might be too long or too short under
given facts and circumstances. It was argued that the Department ought to
encourage voluntary resolution. Although the Department believes the proposed
rule allows for an extension to be approved by the Department for good cause,
the Department added language to §80.127(d)(3) to clarify that reasonable
time will be given. The Board discussed this matter at length and heard additional
testimony at its February 6, 2004, meeting. It was decided to add clarifying
language that when a warranty assignment is reviewed by the Department and
the review is finalized, the licensee will be given an appropriate and reasonable
period of time to comply, not just whatever happens to remain of the original
forty day period.
New §80.181- A commenter suggested alternate language, "Before accepting
a completed credit application from a consumer, a retailer…" The Department
has revised the language.
Section 80.181(1)- A commenter stated there is no statutory provision for
the instructions at the end of the disclosure form that states the retailer
must maintain the signed acknowledgement for at least 25 months. Since this
is a disclosure that must be given to every applicant whether they ultimately
purchase a home or not, this could lead to a record-keeping nightmare. The
commenter suggested that the 25 month time frame be applied only to those
acknowledgments / applications that result in sold homes. The Department has
deleted the instructions since §80.121(b) requires all verifications
and copies of notices required by our rules to be maintained in the retailer’s
sales file for a minimum of 6 years.
Section 80.182- A commenter stated that this section needs to be re-titled
or broken into parts or both because it contains the disclosure required by
Section 163 and the right of rescission. This has been done.
New §80.182- A commenter stated that the 1201.163 Disclosure created
by SB 521 was intended to narrow the focus of the consumer to more of the
details of home ownership and to ensure that possible finance options are
presented. There is no need to present this form until the prospective homeowner
has completed the initial credit application step and has been conditionally
approved by a lender. However, the statute does provide that the 163 Disclosure
be given at least 24-hours prior to closing so (a) should probably start with
"At least 24-hours prior…" Please review the attached suggested form
revisions. The Department agrees with the "At least 24 hours" recommendation.
The form is treated separately in the following paragraph, after all discussion
of rule text.
Section 80.182(a)(2)- Comments were received objecting to having made the
form bilingual and that there is no provision in SB 521 to provide the 1201.163
Disclosure in Spanish. Commenters stated the Department’s rule will
put an unnecessary burden on licensees and goes well beyond what is required
by Texas Law and that the proposed section should be omitted. The Department’s
intent is to assist Spanish-speaking consumers by making disclosures available
in Spanish. The Department will not require the retailer to provide the disclosure
in Spanish; however, the consumer may request a copy in Spanish from the retailer
or from the Department. A legend in Spanish has been added at the top of the
English version (Figure: 10 TAC §80.181(a)(1)) informing consumers that
a Spanish version is available upon request.
Section 80.182(b)- A commenter stated that in SB 521, the 3-day right of
rescission was created as a stand-alone section and it seems that Department
rules should take the same approach and create a new section. The commenter
states SB 521 is very clear on this issue and the Department is over stepping
its authority and nowhere in 1201.1521 does it say or imply that this provision
does not apply to real property (new or used). The commenter stated that adopting
this rule will deny consumers protections clearly granted to them by the Legislature
in this section of the law and this rule should not be adopted. The Department
has move the right of rescission rule to §80.183 and rewritten the rule
for clarification. After an extended discussion at the February 6, 2004, board
meeting, it was decided that the right of rescission is three calendar days,
not three business days.
Section 80.182(c)(2)- A commenter stated there should be some responsibility
placed on the consumer that wants to rescind their contract. There is no reason
to create confusion and unnecessary delays and expense to be incurred by consumers
and licensees by creating the possibility of confusion on wrong addresses
and missed courier deadlines. If the customer can show up in person to sign
the contract to buy a home they should be able to show up in person or get
to a fax machine within the 3-day time period to rescind the contract. The
Department deleted the proposed form.
Section 80.182(c)(4)- A commenter stated the Department is overstepping
its authority. Nowhere in SB 521 does the statute even imply a 7-day time
period. The statute is clear. If the right of rescission is not exercised
by midnight of the 3rd day the opportunity to do so has passed. This section
is a good example of why this important option for the consumer should come
with the equally important obligation to adhere to its time limits. The Department
withdraws this proposed section. However, the Department does not believe
it exceeded its authority. It simply created a presumption that a posted notice
of rescission, if not received within a week, was presumed not given. With
this section deleted a properly posted notice of rescission could be effective
even if received much later.
Section 80.182(c)(4)- Another commenter asked that it be stated that the
presumption created was not rebuttable, noting that it would provide a protection.
It was the Department’s intent that it not be rebuttable. This is not
an issue since the Department has deleted this section.
Section 80.182 - There were general comments on the right of rescission
as it related to special order homes. It was indicated that a retailer would
not special order a home without a non-refundable deposit. The Department
does not see any way around the fact of the right of rescission and does not
have authority to clarify the interrelationship of the deposit on a special
order home with the right of rescission. There does not appear, however, to
be any statutory exception for deposits. The best way to handle this is to
wait until the three day period has elapsed before submitting the order.
Section 80.182- A commenter suggested that the consumer sign a form acknowledging
receipt of the right of rescission. The Department believes that notice of
the right is provided in the Section 162 disclosure.
Section 80.182- A commenter stated that it was clearly contemplated that
the right of rescission be based on calendar days, not business days. The
Department has clarified this in the rule, as adopted.
Section 80.182(d)- A commenter stated the rule should be adopted as an
addition to §80.124 so that all rules concerning deposits are listed
together. And in §80.124, there are already rules for deposits and down
payments on specially ordered homes. However, it should be noted that there
is a difference between an "Earnest Money" situation and a "binding contractual
agreement" mentioned in §80.182(d)(1). 1201.1505 specifically calls for
an earnest money contract and makes it clear that among its provisions there
should be the 3-day right rescission before the order is placed. In addition,
1201.1505 provides for there to be a binding loan commitment a lender if applicable.
The commenter stated the section is unnecessary since the statute is clear
on this issue, but if there has to be a rule the Department should use the
language provided by the Legislature. The Department agrees with moving this
subsection to §80.124 but is not acting on §80.124 at this time.
Section 80.182(e)- A commenter asked which disclosure this subsection was
referring to since the section deals with more than one disclosure. The Department
moved this subsection to §80.182(b) that refers to the 163 Disclosure.
Section 80.182 - A commenter asked for clarification as to which forms
needed to be in 12 point type. The Department has determined that the Section
162 and Section 163 disclosures must both be in at least twelve point type.
New §80.183- A commenter stated 1201.163 clearly states that this
disclosure is to provide the consumer with "estimates" as they continue to
gather more information about buying a home. There is nothing in the statute
that even implies that the 163 Disclosure has anything to do with "a binding
agreement" or "constitutes a firm offer by the retailer" to provide or do
anything. At the time this disclosure is given the consumer may still be considering
several different options and among those options is what kind of loan to
use. How can a form that presents things to consumers in general terms be
considered a "firm offer"? As long as §80.182 clearly states the use
and timing of the 163 Disclosure this whole section is not needed and should
be deleted. A commenter indicated that an attempt had been made to merge two
concepts: Provide the Sec. 163 notice 24 hours before the contract is entirely
executed and provide a copy of the proposed contract 24 hours before it is
to be executed. The Department deleted the original language relating to 24
hour advance copy of certain documents and replaced it with the rewritten
three day right of rescission rule that was previously proposed in §80.182.
The provision regarding what constitutes a "firm offer has been deleted from
the final rule as it is addressed in the statute
New §80.200(a)(1)- A commenter stated the same terms should be used
throughout the rule to avoid confusion. If the Department wants to use "seller
/ transferor", then "consumer" should probably be changed to buyer / transferee.
The Department will keep the term consumer, defined in the Act but using it
in conjunction with transferee, since transferee encompasses not only buyers
but other acquirers, such as heirs and devisees.
New §80.201 - After an extended discussion, including public commentary
at the February 6, 2004, Board meeting, it was decided that the Department
ought to require proof of no tax liens whenever an initial or revised Statement
of Ownership and Location is issued. This was based in large part on consideration
of the effect of HB 468 (77th Legislature) on the creation of tax liens for
tax years prior to 2001.
New §80.201(a)(2)(D)- A commenter stated this section makes reference
to a home that is relocated. What will be required for a new SOL when the
home is not relocated? The Department believes that this presents a policy
issue. The law does not appear to require verification of paid property taxes
if the home is not moved. Obviously, if there are tax liens recorded with
the department against the home, they would have to be discharged or consent
would be required. A home may be sold "in place" if the sale is either lawful
or exempt and no proof of a lawful move would be required. The Department
revised the section for clarification.
New §80.204(c)(1)- A commenter stated that the 1201.163 disclosure
is for consumer information purposes only and has nothing what so ever to
do with installations. This subsection should be deleted, but if it is allowed
to stay, 1201.163 is required specifically for "chattel" sales of manufactured
homes. Not land and home sales or not cash sales. How will the 163 Disclosure
be produced when a consumer-to-consumer sale takes place? The Department deleted
the subsection.
New §80.204(c)(2)- A commenter stated that the 1201.163 has nothing
to do with installations, but if allowed to stay, the last sentence could
be read to conflict with §80.182(e) which states that signed acknowledgments
must be kept of file for 25 months. The Department deleted the subsection.
Section 80.205(a)(4) -- A Commenter thought it was burdensome to require
separate filings for each location. It was indicated that this could cause
logistical problems for limit-site dealers moving inventory from location
to location. The Department recommended this because of the unique licensing
structure under the Act, requiring each sales site to be separately licensed
and bonded. The Department determined that the proposed language will remain
unchanged.
New §80.205(c)(1)(D)- A commenter asked why the Department needs a
certification that a repossessed or foreclosed home will not be located on
the same property as the previous owner. The commenter said these homes are
resold in place all the time. The Department revised the language to clarify
that it is possible for a home to be sold in place if the site of sale is
lawful (i.e., a licensed retail site or an exempt transaction).
New §80.205(c)(2)- A commenter stated that the taxes should already
be paid if the home was moved legally, but should the Department also make
reference to proof of paid taxes along with the release of lien information
on repossesses and foreclosed homes? The Department believes this is a policy
issue on requiring proof of paid taxes on a home that is sold in place and
on which no tax lien has been recorded. Of course if such a home is re-sold,
it must be sold in either a properly licensed transaction or an exempt transaction;
and if the sale is by a licensee, a warranty of good and marketable title
is required. The Department determined that the proposed language will remain
unchanged.
Section 80.207(a)(2)- A commenter stated that since the Department produces
forms called affidavits, it should be made clear whether the affidavit referred
to in this subsection is a Department form or a typed and notarized statement
produced by the owner. The Departments position is that the language does
not specify that the affidavit is a department form, it can be assumed that
the affidavit is not required to be made on a department form. No change in
the language is needed.
Section 80.207(b)- A commenter suggested alternate sentence structure:
A manufactured home that has been designated for "business use only" may be…."
Also this subsection seems to imply that once the Department inspects the
home, the owner may only elect to treat the home as personal property. If
that is not the case please consider rewording this subsection so that all
options are made clear. The Department agrees and revised the text to clarify
that the owner may elect to treat the home as either personal property or
real property.
New §80.209(a)- A commenter stated that the new SOL form should have
a space for the Date of Manufacturer to be listed if the date is known. The
information on size should be specific as to floor size or size including
the hitch. Under the Transferee information the form asks for "county where
home is installed." At the time of sale the home is usually not yet installed
so consider using "county where home will be installed". The department might
consider making this form into a legal sized document to allow improved spacing
of the information making the form more user friendly. Another commenter asked
that the date of manufacture not be added since it is not specified on a site
built home and the industry is attempting to treat manufactured homes similarly
to site built homes wherever possible. The Department added date of manufacture.
It is often requested from insurers, and including it on the SOL will help
reduce call-ins. The Department prefers letter size forms because of the requirements
for document microfilming. The Department agrees to include statutory language
to specify how the size should be reported on the application. Under the Transferee
information, the Department revised the "County Where Home Is Installed" language
to "County Where Home Is or Will Be Installed."
Except as noted below, the rules as proposed on September 19, 2003 are
adopted as final rules with the following non-substantive changes.
The text in §80.127(d) is rewritten for clarification.
New §80.181 is reworded for clarification.
Figure: 10 TAC §80.181(1)- Consumer Disclosure Statement (English
version) is revised to include a legend at the top of page that explains a
Spanish version is available on request and the last paragraph on the form
was revised taking out the requirement that the retailer maintain the acknowledgement
for at least 25 months.
Figure: 10 TAC §80.181(2)- Consumer Disclosure Statement (Spanish
version) is a new form that is the same text as the English version.
New §80.182(a) is revised for clarification and additional text is
added in paragraph (a)(2) to explain that retailers are not required to provide
the form in Spanish; however, the consumer can request a copy from the retailer
or Department.
Figure: 10 TAC §80.182(a)(1)- Choosing a Loan to Buy a Manufactured
Home (English version) is revised to include a legend at the top of page that
explains a Spanish version is available on request and the first and second
paragraphs were revised for clarification.
Figure: 10 TAC §80.182(a)(2)- Choosing a Loan to Buy a Manufactured
Home (Spanish version) is revised by rewording the first two paragraphs.
New §80.182(b) and (c) are changed to further explain the disclosure
requirements. The three day right of rescission information is rewritten and
moved to §80.183.
Figure: 10 TAC §80.182(c)(2)- Notice of Three Day Right of Rescission.
The form is deleted.
New §80.182(d) is deleted.
New §80.182(e) moved to §80.182(b).
The title and text of New §80.183 changed from 24 Hour Advance Copy
of Certain Documents to Three Day Right of Rescission. The three day right
of rescission proposed text is rewritten for clarification. The originally
proposed text relating to 24 Hour Advance Copy of Certain Documents is deleted.
New §80.200(b) is revised for clarification.
New §80.201(a)(2)(D) is revised for clarification.
New §80.204(c) is deleted.
New §80.205(c)(1)(D) is rewritten for clarification.
Section 80.207(b) is revised for clarification.
New §80.209 forms are revised for clarification..
Figure: 10 TAC §80.209(a)- Application for Statement of Ownership
and Location is revised for clarification purposes.
Figure: 10 TAC §80.209(b)- Release of Lien, Foreclosure of Lien or
Lien Assignments (Form B) is revised for clarification purposes.
The following is a restatement of the rules’ factual basis:
Section 80.127 is adopted (with changes) to clarify that a failure to provide
required warranty work on a timely basis is a violation of the Act.
New §80.181 is adopted (with changes) that implement new consumer
protection provisions adopted in SB 521 and requires a notice be given prior
to the taking of any credit application. This notice informs potential acquirers
of manufactured homes that home ownership involves other costs and responsibilities
besides making payments on any loan or other financing to buy the home. A
consumer’s failure to address such matters may result in their being
unable to enjoy all of the benefits of their home and may even subject them
to losing their home. Therefore, they should consider how they will address
all applicable requirements, not simply qualifying for purchase financing.
Figure: 10 TAC §80.181(1)- Consumer Disclosure Statement (English
version) is adopted (with changes).
Figure: 10 TAC §80.181(2)- Consumer Disclosure Statement (Spanish
version) is adopted (with changes).
New §80.182 is adopted (with changes) that implements the requirement
for an additional disclosure, prior to the execution of an agreement to purchase
a home. The decision to purchase and the decision how to finance the purchase
are often made together. This disclosure will provide consumers with important
information to consider in making a decision as to how to finance their purchase.
It will enable them to consider additional costs that may be involved in their
loan and additional detail about the likely costs of taxes, insurance, and
other necessary payments. The required disclosure is proposed as a bilingual
form.
Figure: 10 TAC §80.182(a)(1)- Choosing a Loan to Buy a Manufactured
Home (English version) is adopted (with changes).
Figure: 10 TAC §80.182(a)(2)- Choosing a Loan to Buy a Manufactured
Home (Spanish version) is adopted (with changes).
New §80.182(b) and (c) moves to §80.183 (relating to Three Day
Right of Rescission) which replaces the previously proposed new §80.183
that related to 24 Hour Advance Copy of Certain Documents. The three day right
of rescission is created by SB 521 and is adopted (with changes). The proposed
Right of Rescission form is deleted.
Figure: 10 TAC §80.182(c)(2)- Notice of Three Day Right of Rescission.
The form is not adopted.
New §80.183 relating to 24 Hour Advance Copy of Certain Documents
is replaced with Three Day Right of Rescission that was previously proposed
as new §80.182(c). The three day right of rescission is created by SB
521 and is adopted (with changes).
Renaming Subchapter G to Statements of Ownership and Location to comply
with changes made by SB 521 is adopted (without changes).
New §§80.200, 80.201, 80.204, 80.205 as well as conforming changes
to other portions of Subchapter G, are adopted (with changes) to implement
the change from issuance of title documents to the issuance of Statements
of Ownership and Location. The Statement of Ownership and Location will be
a statement by the Division of its records regarding the ownership, location,
recordation of certain liens, and election (by the owner) to treat the home
as real property or personal property. This will be a controlling and presumptive
record and may not be altered without evidence that liens have been discharged
or that lienholders have given consent. There is also a requirement that a
revision to the statement of location requires evidence of payment of property
taxes. The Division is especially interested in comments as to the practical
issues involved in implementing these requirements, including the ability
of lenders to protect their positions and the ability of consumers to be provided
promptly with evidence of ownership and other matters of record.
Section 80.203 is adopted (without changes) for the purpose of clarification.
Section 80.206 is adopted (without changes) to comply with changes made
by SB 521.
Section 80.207 is adopted (with changes) to comply with changes made by
SB 521.
New §80.209 is adopted (with changes) to implement the change from
issuance of title documents to the issuance of Statements of Ownership and
Location. The Statement of Ownership and Location will be a statement by the
Division of its records regarding the ownership, location, recordation of
certain liens, and election (by the owner) to treat the home as real property
or personal property. This will be a controlling and presumptive record and
may not be altered without evidence that liens have been discharged or that
lienholders have given consent.
Figure: 10 TAC §80.209(a)- Application for Statement of Ownership
and Location is adopted (with changes).
Figure: 10 TAC §80.209(b) - Release of Lien, Foreclosure of Lien or
Lien Assignments (Form B) is adopted (with changes).
Subchapter E. GENERAL REQUIREMENTS
10 TAC §80.127
The amended rule is adopted under the Texas Manufactured Housing
Standards Act, Occupations Code, Subtitle C, 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, §2306.603, which authorizes the director
to adopt rules as necessary to administer and enforce the manufactured housing
program through the Manufactured Housing Division.
The agency hereby certifies that the amended rule has been reviewed by
legal counsel and found to be within the agency's authority to adopt.
No other statute, code, or article is affected by the amended rule.
§80.127.Sanctions and Penalties.
(a)
In accordance with the provisions of Government Code, Chapter
2306, §2306.604, the director may assess and enforce penalties and sanctions
against a person who violates any applicable law, rule, regulation, or administrative
order of the department. The director may:
(1)
issue to the person a written reprimand that specifies
the violation;
(2)
revoke or suspend the persons license;
(3)
place on probation a person whose license is suspended;
or
(4)
assess an administrative penalty in an amount not to exceed
$1,000 for each violation in lieu of, or in addition to, any other sanction
or penalty.
(b)
In determining the amount of a sanction or penalty, the
board and the director shall consider:
(1)
the kind or type of violation and the seriousness of the
violation;
(2)
the history of previous violations; the kind or type of
previous violations, and the length of time between violations;
(3)
the amount necessary to deter future violations;
(4)
the efforts made to correct the violation or previous violations;
and
(5)
any other matters that justice may require.
(c)
Violations will be subject to sanctions and penalties as
set forth in Government Code, Chapter 2306.604. Revocation or suspension of
a license may be assessed only for multiple, consistent, and/or repeated violations.
For first-time violations of a department rule which does not relate to the
construction or installation of the home, a voluntary letter of compliance
will be issued in lieu of other sanctions.
(d)
When a licensee first receives notification of a claim
for warranty service, the licensee must respond timely to the request. A failure
to do so shall constitute a violation of these rules.
(1)
It is presumed that a response was timely if the required
warranty service is provided within forty (40) calendar days from the date
of the request; provided, however, that if the matter involves an imminent
safety hazard, it must be addressed as quickly as is reasonably possible.
(2)
The time to respond to a request for warranty service may
be extended by the Director in response to a request setting forth good cause
for the extension. Any such request must be made to the Director prior to
the expiration of the allotted time for response. Requests may be made by
U.S. First Class mail, by FAX, or by e-mail, or, if followed with written
confirmation sent U.S. First Class mail, by telephone.
(3)
If, after reasonable investigation, the licensee disputes
whether warranty service is required and the licensee is unable to resolve
the matter by agreement with the consumer, the licensee may request that the
Department perform an inspection of the home. The running of the time to respond
to the request for warranty service will be suspended from the time the request
for inspection is received until the Department performs the inspection and
issues its findings. When the Department concludes its review it will work
with the affected licensee(s) and consumer(s) to agree upon a reasonable time
to address its findings. In the event the parties cannot agree on a reasonable
time, the Director shall issue a revised order assigning a time for compliance.
Any such order shall be subject to appeal and a hearing. Any such hearing
shall be a contested case under Tex.Gov.Code, Chapter 2001.
(e)
All written notices and preliminary reports of violations
shall specify in detail the particular law, rule, regulation, or administrative
order alleged to have been violated along with a detailed statement of the
facts on which the allegation is based.
(f)
The respondent in an administrative hearing shall be entitled
to due process and a hearing under the provisions of Government Code, Chapter
2001 and Chapter 2306. The respondent and the director may enter into a compromise
settlement agreement in any contested matter prior to signing of the final
order.
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 February 13, 2004.
TRD-200401049
Timothy K. Irvine
Executive Director, Manufactured Housing Division of TDHCA
Texas Department of Housing and Community Affairs
Effective date: March 28, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 475-2206
10 TAC §§80.181 - 80.183
The new rules are adopted under the Texas Manufactured Housing
Standards Act, Occupations Code, Subtitle C, 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, §2306.603, which authorizes the director
to adopt rules as necessary to administer and enforce the manufactured housing
program through the Manufactured Housing Division.
The agency hereby certifies that the new rules have been reviewed by legal
counsel and found to be within the agency's authority to adopt.
No other statute, code, or article is affected by the new rules.
§80.181.Section 162 Notice.
Before accepting a completed credit application from a consumer, a
retailer (or any salesperson or other agent acting on behalf of a retailer)
shall provide the following disclosure.
(1) English version of Section 162 Notice:
(2) Spanish version of Section 162 Notice (the retailer is
not required to provide the form in Spanish; however, the consumer may request
a copy in Spanish from the retailer or from the Department):
§80.182.163 Disclosure.
(a)
In a chattel mortgage or consumer loan transaction, the
retailer shall deliver to the consumer, at least 24 hours before the execution
of the contract, the disclosure set forth in paragraph (1) of this subsection
and a copy of the contract to be executed with all information included, signed
by the retailer.
(1)
English version of disclosure:
(2)
Spanish version of disclosure (the retailer is not required
to provide the form in Spanish; however, the consumer may request a copy in
Spanish from the retailer or from the Department):
(b)
The disclosure must be given in writing in at least 12
point type. It may not be attached to any other disclosure or document. The
consumer must sign and date a copy of the disclosure to acknowledge that it
was provided.
§80.183.Three Day Right of Rescission.
(a)
The first calendar day after the day on which the applicable
contract is executed is the first day, and the three day right of rescission
expires unless notice has been given prior to midnight on the third calendar
day following the date of execution of the applicable contract.
(b)
The three day right of rescission may not be waived.
(c)
A licensee may rely on a signed acknowledgement from a
consumer, executed after the right of rescission has expired, confirming that
the right expired without being exercised.
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 February 13, 2004.
TRD-200401050
Timothy K. Irvine
Executive Director, Manufactured Housing Division of TDHCA
Texas Department of Housing and Community Affairs
Effective date: March 28, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 475-2206
10 TAC §§80.200, 80.201, 80.203 - 80.207, 80.209
The new and amended rules are adopted under the Texas Manufactured
Housing Standards Act, Occupations Code, Subtitle C, 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, §2306.603, which authorizes the director
to adopt rules as necessary to administer and enforce the manufactured housing
program through the Manufactured Housing Division.
The agency hereby certifies that the new and amended rules have been reviewed
by legal counsel and found to be within the agency's authority to adopt.
No other statute, code, or article is affected by the new and amended rules.
§80.200.Responsibility for Completion and Filing of an Application for a Statement of Ownership and Location.
(a)
When a person required to be licensed under the Standards
Act is involved in the sale or transfer of ownership of a manufactured home,
they must, no later than thirty (30) calendar days after the date of the closing
of the sales or transfer transaction, either:
(1)
Provide the transferee with an Application for Statement
of Ownership and Location completed as to all parts that the seller transferor
should be able to complete, including execution and the attachment of all
necessary supporting documentation, and deliver it to the consumer for completion
and filing; or
(2)
Obtain the transferee's notarized signature on a fully
completed application for Statement of Ownership and Location and file the
completed application, together with the required fee and all necessary supporting
documentation, with the Department.
(b)
The transferor must retain copies of the completed application
and all supporting documentation as evidence that it conveyed good and marketable
title to the manufactured home to the transferee. A contract to convey title
after completion of an extended payout, as opposed to a financed extended
payout secured by a lien on the manufactured home, does not constitute a conveyance
of good and marketable title. An extended payout is any repayment involving
more than one installment or any finance charge.
§80.201.Issuance of Statements of Ownership and Location.
(a)
Initial Statements.
(1)
The Department will issue an initial Statement of Ownership
and Location within ten (10) working days after receipt of a complete application,
accompanied by all documentation necessary to support the application.
(2)
In order to be deemed complete, an application for a Statement
of Ownership and Location must include, as applicable:
(A)
A completed and fully executed Application for Statement
of Ownership and Location on the Department's prescribed form;
(B)
The required fee;
(C)
If one or more liens are to be reflected on the Statement
of Ownership and Location, copies of documentation establishing the creation,
existence, and priority of each such lien;
(D)
If a manufactured home is relocated, satisfactory evidence
that there are no property tax liens on the home or that provision has been
made for them. Satisfactory evidence would include, but would not be limited
to, evidence that the relocation was effected with a TxDoT approved move or
a statement from a title company, lender, or escrow agent, executed by a person
purporting to be its duly authorized officer or representative, that money
sufficient to pay the taxes was being held by them and would be applied to
the payment of those taxes.
(b)
Revised Statements.
(1)
The Department will issue a revised Statement of Ownership
and Location within ten (10) working days after receipt of a complete application,
accompanied by all documentation necessary to support the application.
(2)
In order to be deemed complete, an application for a revised
Statement of Ownership and Location must include, as applicable:
(A)
A completed and fully executed Application for Statement
of Ownership and Location on the Department's prescribed form;
(B)
The required fee;
(C)
If one or more liens are to be reflect on the Statement
of Ownership and Location, copies of documentation establishing the creation,
existence, and priority of each such lien;
(D)
If one or more existing liens are to be released or transferred,
appropriate supporting documentation, including a properly executed and completed
release of lien form;
(E)
If a manufactured home is to be designated for use as a
dwelling after the home has been designated for business use only or salvage,
evidence of a satisfactory habitability inspection by the Department, accompanied
by the required fee;
(F)
If a manufactured home is relocated, satisfactory evidence
that there are no property tax liens on the home or that provision has been
made for them. Satisfactory evidence would include but would not be limited
to, evidence that the relocation was effected with a TxDoT approved move,
a paid taxes certificate from the county tax assessor for the county where
the home was located prior to the move, or an original, signed statement from
a title company, lender, or escrow agent, executed by a person purporting
to be its duly authorized officer or representative, that money sufficient
to pay the taxes was being held by them and would be applied to the payment
of those taxes;
(G)
In instances where title to a manufactured home is conveyed
in a transaction other than a transaction requiring a license under the Standards
Act, such as testamentary and non-testamentary transfers, private sales not
requiring a license, voluntary or court-ordered partitions, etc, originals
or certified copies of appropriate documentation to support any such transfer,
as required by the Department; and
(3)
Any change in a Statement of Ownership and Location shall
result in a new Statement of Ownership and Location being issued, and the
new Statement of Ownership and Location shall specify the effective date which
shall be either the date of the submission of the completed application or
such other date as the Director may determine is appropriately supported by
the information provided.
(c)
Replacing a Document of Title.
(1)
Upon receipt of a written request, applicable fee(s), and
any necessary additional information, including a notarized statement of election
of real or personal property status, the Department will replace a document
of title with a Statement of Ownership and Location.
(2)
If a manufactured home title showed that it was personal
property, that will be presumed to be its status until and unless a revised
Statement of Ownership and Location is applied for and issued. Likewise, if
a manufactured home has had a certificate of attachment issued and had title
cancelled to real property, that shall be presumed to be its status until
and unless a revised Statement of Ownership and Location is applied for and
issued.
§80.204.Installation Information.
(a)
The installation information, on forms approved by the
department, must accompany each application for a Statement of Ownership and
Location and shall contain the following information:
(1)
description of the home, including:
(A)
serial number;
(B)
HUD label number or Texas seal number;
(C)
size of home;
(D)
name of manufacturer;
(E)
Wind Zone, if available; and
(F)
map of the location of the home.
(2)
whether or not the home was, or will be, moved as a result
of the sale or transfer;
(3)
whether or not the home was, or will be, installed at a
new location as a result of the sale or transfer;
(4)
the location of the home immediately prior to the sale
or transfer;
(5)
if moved, or to be moved, the location of the home after
the move and the name and address of the person or company that moved, or
will move, the home; and
(6)
if installed, or to be installed, the location of the home
after installation; and the name and address of the person or company that
installed, or will install, the home.
(b)
If the home was installed as a result of the sale or transfer,
the installation fee required under §80.20(b) of this title (relating
to Fees) must be submitted along with the installation information (Notice
of Installation). The installation fee may be combined with the titling fee
for each home.
§80.205.Lien Information.
(a)
Inventory Financing Liens.
(1)
A lien and security interest on manufactured homes in the
inventory of a retailer, as well as to any proceeds of the sale of those homes,
is perfected by filing an inventory finance security form approved by the
department and in compliance with these sections.
(2)
The creditor-lender financing the inventory and the retailer
must execute a security agreement which expressly sets forth the rights and
obligations of the two parties in the inventory finance arrangement.
(3)
The inventory finance security form shall contain the following:
(A)
signatures of both the retailer and the creditor-lender;
(B)
the name, sales location, address, and license number of
the retailer; and
(C)
the name and address of the creditor-lender.
(4)
A separate form must be filed for each licensed sales location.
(5)
For manufactured homes for which no Statement of Ownership
and Location or Document of Title has been issued, the filing of the inventory-finance
security form perfects a security interest in all manufactured homes, whether
then owned or thereafter acquired, as well as to any proceeds of the sale
of those homes, provided that:
(A)
the home is financed by the creditor-lender;
(B)
the creditor-lender has advanced any funds for the home;
or
(C)
the creditor-lender has incurred any obligation for the
home.
(6)
This security interest attaches to a particular manufactured
home only when the act described in either paragraph (5)(A), (B), or (C) of
this subsection would either:
(A)
enable the retailer to acquire the manufactured home;
(B)
pay the existing balance of a creditor-lender for funds
secured by a security interest in the manufactured home;
(C)
in the event that the retailer and manufacturer are the
same entity, pay funds to the manufacturer-retailer after completion of the
manufacture of the manufactured home; or
(D)
in the event that the retailer has no debt owed against
the inventory, enable the retailer to use the manufactured home as security
for a new debt.
(7)
No provision in the security agreement between the parties
to an inventory financing arrangement shall in any way modify, change, or
supersede the requirements of this section for the perfection of security
interests in manufactured homes in the inventory of a retailer.
(b)
Release of Liens.
(1)
The lienholder of a lien recorded on a Statement of Ownership
and Location shall deliver a properly executed release of lien form prescribed
by the department to the owner of record within thirty (30) calendar days
of the satisfaction of the debt or obligation secured by the lien.
(2)
The lien recorded on a Statement of Ownership and Location
shall be released by the department upon receipt of a release of lien form
properly executed by the lienholder of record, and a new Statement of Ownership
and Location shall be issued.
(c)
Foreclosure or Repossession.
(1)
In the event of sale after either foreclosure or repossession
of a manufactured home that is not real property, the department shall issue
a new Statement of Ownership and Location upon receipt of a properly executed
application containing the following information:
(A)
The description of the home along with an indication of
whether the home is a foreclosure or repossession;
(B)
The name and address of the lienholder and name of the
person authorized to sign for the lienholder;
(C)
An indication of whether the home was repossessed by judicial
order or sequestration. A true copy of the order or bill of sale shall be
attached; and
(D)
A certification that:
(i)
the home will be sold from a licensed retailer's location;
or
(ii)
the seller is not required to be licensed under Subchapter
C of the Standards Act.
(2)
In the event of foreclosure or repossession of a manufactured
home that is not real property, the department will not issue a new Statement
of Ownership and Location until receipt of release of lien.
(d)
Right of Survivorship: If two or more eligible persons
are shown as purchasers or transferees, they may execute the right of survivorship
election on an application for a Statement of Ownership and Location. Such
election constitutes an agreement for the right of survivorship. If the survivorship
election is taken, then the department will issue a new Statement of Ownership
and Location to the surviving person(s) upon receipt of a copy of the death
certificate of the deceased person(s), and a properly executed application
for Statement of Ownership and Location, and the applicable fee.
§80.207.Reinstatement of Canceled Documents of Title.
(a)
A manufactured home which has been declared real estate,
may be converted and declared personal property upon inspection by the department
for habitability and upon receipt of the following:
(1)
a properly executed release of lien releasing any lien
resulting from a security interest in the home from the lender;
(2)
if no lien or security interest exists, an affidavit from
the owner of record, executed before a notary public that no lien or security
interest exists against the home;
(3)
a properly executed application for the reissuance of a
Statement of Ownership and Location and the required fee;
(4)
confirmation from a title insurance company authorized
to do business in Texas that no other liens exist on the manufactured home;
and
(5)
payment for a habitability inspection to ensure that the
home is habitable and payment for the reissuance of a Statement of Ownership
and Location.
(b)
A manufactured home which has been designated for business
use, may be used as a dwelling and elected as personal or real property upon
inspection by the department for habitability and upon receipt of the following:
(1)
payment for a habitability inspection; and
(2)
receipt of a properly executed application for reinstatement
accompanied by the proper fees.
§80.209.Statement of Ownership and Location Forms.
(a)
Application for Statement of Ownership and Location:
Figure: 10 TAC §80.209(a) (.pdf)
(b)
Form B (Release of Lien, Foreclosure of Lien or Lien Assignments):
Figure: 10 TAC §80.209(b) (.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 February 13, 2004.
TRD-200401051
Timothy K. Irvine
Executive Director, Manufactured Housing Division of TDHCA
Texas Department of Housing and Community Affairs
Effective date: March 28, 2004
Proposal publication date: September 19, 2003
For further information, please call: (512) 475-2206
Subchapter F. CONSUMER NOTICE REQUIREMENTS
Subchapter G. STATEMENTS OF OWNERSHIP AND LOCATION
Subchapter G. TITLING