Proposed Rules Title 10

TITLE 10. COMMUNITY DEVELOPMENT

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 (the "Department") proposes to amend 10 TAC, Chapter 80, §§80.3, 80.90, 80.93, and 80.100 relating to the regulation of the manufactured housing program. The amendments add additional rules and forms to comply with HB 1460 that was passed by the 80th Legislature (2007 Regular Session) and became effective on January 1, 2008.

Section 80.3(m). The subsection is amended relating to fee refunds by the Department to comply with §1201.059(d) of the Standards Act.

Section 80.90(g). The new subsection is for the holder or servicer of loan to elect a home real property when the title company or attorney fails to complete conversion. The new subsection is added to comply with §1201.2055(i)(3) of the Standards Act.

Section 80.90(h). The new subsection is for requiring an affidavit of fact when submitting an application for SOL pursuant to the abandonment provision in §1201.217 of the Standards Act.

Figure: 10 TAC §80.93(b) - The tax lien layout form is revised because the Department cannot accept dummy numbers (999-999-99) in lieu of a taxing entity number or central tax collector number when filing a lien.

Section 80.100(a). Amended the list of forms to revise existing forms and to add new forms to the list.

Figure: 10 TAC §80.100(b)(1) - Revised the Application for Manufacturer's License by adding a column for the date of birth.

Figure: 10 TAC §80.100(b)(2) - Revised the Application for License for a Retailer, Broker, Installer and/or Rebuilder by adding a column for the date of birth.

Figure: 10 TAC §80.100(b)(4) - Revised the Application for Salesperson's License by updating the education requirements information in the certification section.

Figure: 10 TAC §80.100(b)(16) - Revised the Notice of Installation form by removing the Installation Decal Number field because the proposal to issue decal numbers was not implemented when new rules were adopted in December of 2007, corrected the number of days required to submit the form from 15 to 7 days to comply with the Standards Act, and added a section for the Department to report the inspection results.

Figure: 10 TAC §80.100(b)(19) - Revised the Application for Statement of Ownership and Location by adding 2(b), 4(c), 4(d), home identification at the top of the 2nd page, and lienholder contact information in Block 8.

Figure: 10 TAC §80.100(b)(20) - Deleting Application for Correction to a Statement of Ownership and Location and replacing with new Affidavit of Fact for Real Property form.

Figure: 10 TAC §80.100(b)(24) - Replaced the Affidavit of Fact for Incomplete SOL with Addendum to Application for SOL that does not require the form to be notarized.

Figure: 10 TAC §80.100(b)(31) - Revised the Notice of Lien to Perfect a Lien (Other than Tax Lien) by removing the requirement to notarize signatures in Block 3 and adding Block 4 for lien assignments.

Figure: 10 TAC §80.100(b)(32) - Revised Notification of Filing Status as a Central Tax Collector by correcting the block number for Notarized Signature Required from Block 3 to Block 4 and the number on page 2 from Block 2 to Block 3.

Figure: 10 TAC §80.100(b)(35) - Revised form by adding requirement to attach list of related persons as required by §1201.103 of the Standards Act.

Figure: 10 TAC §80.100(b)(38) - New Probationary Installation (Form T) form to comply with §1201.104(f) of the Standards Act.

Figure: 10 TAC §80.100(b)(39) - New Statement from Tax Assessor-Collector form to meet requirements of §1201.206(g) of the Standards Act.

Figure: 10 TAC §80.100(b)(40) - New Notice of Intent to Acquire Ownership of an Abandoned Manufactured Home form to comply with §1201.217 of the Standards Act.

Figure: 10 TAC §80.100(b)(41) - New Affidavit of Fact for Abandonment form to comply with §1201.217 of the Standards Act.

Figure: 10 TAC §80.100(b)(42) - New Disclosure to Consumer relating to occupying a manufactured home before financing is closed required by §1201.513 of the Standards Act.

Figure: 10 TAC §80.100(b)(43) - New Application for Salesperson's License Renewal to comply with §1201.103 of the Standards Act.

Figure: 10 TAC §80.100(b)(44) - New Application for Educational Instruction Providers to comply with §1201.104(e) of the Standards Act and 10 TAC, Chapter 80, §80.41(c).

Joe A. Garcia, Executive Director of the Manufactured Housing Division of the Texas Department of Housing and Community Affairs, has determined that for the first five-year period that the proposed rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering these sections. There will be no effect on small or micro-businesses because of the proposed amendments. There are no anticipated economic costs to persons who are required to comply with the proposed rules.

Mr. Garcia also has determined that for each year of the first five years that the proposed rules are in effect the public benefit as a result of enforcing the amendments will be to provide clarification of procedures and compliance with the Standards Act.

Mr. Garcia has also determined that for each year of the first five years the proposed rules are in effect there should be no adverse effect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act (APA), Texas Government Code §2001.022.

If requested, the Department will conduct a public hearing on this rulemaking, pursuant to the Administrative Procedure Act, Texas Government Code §2001.029. The request for a public hearing must be received by the Department within 15 days after publication.

Comments may be submitted to Mr. Joe A. Garcia, Executive Director of the Manufactured Housing Division of the Texas Department of Housing and Community Affairs, P.O. Box 12489, Austin, Texas 78711-2489 or by e-mail at the following address joe.garcia@tdhca.state.tx.us. The deadline for comments is no later than 30 days from the date that these proposed rules are published in the Texas Register.

Subchapter A. CODES, STANDARDS, TERMS, FEES AND ADMINISTRATION

10 TAC §80.3

The amended sections are proposed 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, which authorizes the director to propose rules as necessary to administer and enforce the manufactured housing program through the Manufactured Housing Division.

No other statutes, codes, or articles are affected by the proposed rules.

§80.3.Fees.

(a) License Fees and Renewal Fees:

(1) $850 for each manufacturer's plant license;

(2) $550 for each retailer's sales license;

(3) $550 for each retailer's branch location sales license;

(4) $550 for each rebuilder's license;

(5) $350 for each broker's license;

(6) $350 for each installer's license; and

(7) $200 for each salesperson's license.

(b) Installation Fees:

(1) There is a reporting fee of $75 for the installation of a single section manufactured home and $25 for each additional section.

(2) The reporting fee must be submitted to the Department with the completed Notice of Installation (Form T) no later than seven (7) days after which the installation is completed, but not later than three (3) days for probationary installers.

(3) Fee distributions to local governmental entities performing inspection functions pursuant to contract with the Department shall be made in accordance with Department procedures and the provisions of the contract.

(c) Seal Fee: Except for an application by a tax appraiser or a tax assessor-collector, for which there is no fee, there is a fee of $35 for the issuance of a Texas Seal for one manufactured home section. Any person who sells, exchanges, lease purchases, or offers for sale, exchange, or lease purchase one or more sections of used HUD-Code manufactured homes manufactured after June 15, 1976, that do not each have a HUD label affixed, or one or more sections of a used mobile home manufactured prior to June 15, 1976, that do not each have a Texas Seal affixed shall file an application for statement and location to the Department for a Texas Seal and issuance of an updated Statement of Ownership and Location. The application shall be accompanied by the seal fee of $35 per section made payable to the Department.

(d) Education Fee: Each attendee at the regularly offered course of initial instruction in the law and consumer protection regulations for license applicants shall be assessed a fee of $250. Subject to availability of staff, the Department may provide additional initial instruction courses upon request for a fee of $250 per attendee plus reimbursement to the Department for the actual costs of the training session and any related costs, such as travel, meal, and lodging.

(e) There is a fee of $300 to process an application for a contract to be approved to provide an initial instruction for licensing course or a continuing education program under §1201.113 of the Standards Act.

(f) Industry Request. The manufacturer or retailer may request a consumer complaint home inspection. The request must be accompanied by the required fee of $150.00.

(g) There is a fee of $150 for the inspection of a manufactured home which is to be designated for residential use after having been previously designated for business use or which is elected as personal property after having been designated as real property. The purpose of the inspection is to determine if the home is habitable. The fee must accompany a written request for inspection and must be submitted either prior to or in connection with the submission of an Application for Statement of Ownership and Location.

(h) There is a fee of $200 for the plan review and inspection of a salvaged manufactured home which is to be rebuilt. The purpose of the inspection is to determine if the home is habitable as defined by §1201.453 of the Standards Act so that it may be designated for residential use.

(1) The fee and required notification shall be submitted in accordance with §80.36 of this chapter (relating to Rebuilder's Responsibilities and Requirements).

(2) The rebuilder shall also be charged for mileage and per diem incurred by Department personnel traveling to and from the location of the home.

(3) The Department shall invoice the rebuilder for the charges incurred, and no Statement of Ownership and Location shall be issued until all charges and fees have been paid.

(i) There is no fee for an initial inspection relating to a complaint. If a re-inspection is requested by a consumer or a licensee, a fee of $150 will be assessed against any licensee found, by final order, to have violated any warranty or any other requirements of the Standards Act or these rules made the subject of the complaint.

(j) Fees Relating to Statements of Ownership and Location. Each fee shall accompany the required documents delivered or mailed to the Department at its principal office in Austin.

(1) A fee of $55 will be required for the issuance of a Statement of Ownership and Location;

(2) A fee of $1.50 will be required for each additional requested certified copy other than copies provided at issuance as required by the Standards Act;

(3) If a correction of a document is required as a result of a mistake by the Department, there is no fee for the issuance of corrected document. However, if the error was not made by the Department, a request for correction of the error must be made on a completed Application for Statement of Ownership and Location and submitted to the Department along with the required fee of $55 and any necessary supporting documentation.

(4) When multiple applications are submitted, the Form M set forth in Subchapter I of this chapter (relating to Forms) must be completed and attached to the front of the applications to identify each application and reconcile the fee for each application with the total amount of the payment. Failure to provide this form, properly completed, will delay the application's being deemed complete for processing.

(k) Method of Payment.

(1) All checks shall be made payable to the Texas Department of Housing and Community Affairs or TDHCA.

(2) All license renewals may also be paid by credit card or ACH, if submitted through Texas Online.

(l) Loss of Check Writing Privileges. Any person who has more than one (1) time paid for anything requiring a fee under these rules with a check that is returned uncollectible, whether "NSF," closed account, refer to maker, or for any similar reason, is required to make all future payments, if any, by means of money order or cashier's check.

(m) The director may approve a refund of all or a portion of any fee collected if he or she makes a documented determination showing that:

(1) The fee was for a service applied for in error based on incorrect advice from the Department; [or]

(2) The fee represented a duplicate payment for a service for which money had already been collected by the Department or a licensee; or [.]

(3) A refund is justified and warranted.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 31, 2008.

TRD-200801684

Joe A. Garcia

Executive Director, Manufactured Housing Division

Texas Department of Housing and Community Affairs

Earliest possible date of adoption: May 11, 2008

For further information, please call: (512) 475-2206

Subchapter H. STATEMENTS OF OWNERSHIP AND LOCATION

10 TAC §80.90, §80.93

No other statutes, codes, or articles are affected by the proposed rules.

§80.90.Issuance of Statements of Ownership and Location.

(a) Application Requirements. In order to be deemed complete, an application for a Statement of Ownership and Location must include, as applicable:

(1) A completed and fully executed Application for Statement of Ownership and Location on the Department's prescribed current form;

(2) The required fee;

(3) If the statement of ownership and location is to reflect the recordation of a lien, other than a tax lien, for which the Department does not have the owner's consent, copies of documentation establishing the creation and existence of each such lien, and an affidavit of fact explaining the circumstances of the lien;

(4) When one or more existing liens are to be released, assigned, or foreclosed, appropriate supporting documentation;

(5) When an application for Statement of Ownership and Location indicates a change in ownership but no change in lien, supporting documentation that clearly establishes that the lien holder consented to that change; and

(6) When a manufactured home is to be designated for use as a dwelling after the home has been designated for business use, salvage, or as real property, evidence of a satisfactory habitability inspection by the Department.

(b) Right of Survivorship: If a right of survivorship election is made, 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.

(1) If a correction is required as a result of a Department error, it will be corrected at no charge.

(2) If a correction is requested because of an error made by a party other than the Department, the correction will not be made until the Department receives the following:

(A) A complete corrected application for Statement of Ownership and Location,

(B) Any necessary supporting documentation, and

(d) Upon issuance of a Statement of Ownership and Location, the Department will mail one certified copy to the owner and one certified copy to the lienholder. If additional certified copies are desired, an application for a certified copy must be submitted and accompanied by the additional fee.

(e) Exchanging a Document of Title for a Statement of Ownership and Location: The Department will issue a Statement of Ownership, with no change in status, to replace a title at no charge upon receipt of the original title and the physical location of the home. 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.

(f) Updating of Statements of Ownership and Location on Manufactured Homes Transferred as Real Property.

(1) When a manufactured home has become real property because the owner completed the conversion process required by the Standards Act, the home may be sold, transferred, or encumbered as real property by the customary means used for real property transactions. As long as the home remains real property at the same location, ownership of the home is confirmed in the same manner as any other real property, rather than by verifying Department records. A new Statement of Ownership and Location does not have to be applied for until and unless:

(A) the manufactured home is moved to a new location;

(B) the current owner of the manufactured home wishes to convert it to personal property status; or

(C) the manufactured home no longer meets the requirements to be classified as real property (such as the home being on property subject to a long term lease which is not assignable to the buyer or transferee).

(2) To convert a manufactured home from real property to personal property, the owner of the home must submit a completed Application for Statement of Ownership and Location to the Department with supporting documentation as follows:

(A) If the applicant is not the owner of record with the Department, satisfactory proof of ownership under a complete chain of title. Acceptable evidence would include, but not be limited to, authenticated copies of all intervening transfer documents, a court order confirming ownership, or title insurance policy in such owner's name issued by a title insurance company licensed to do business in Texas.

(B) Satisfactory evidence that any liens on the manufactured home have been discharged or that all lienholders have consented to the change.

(C) Evidence of either a satisfactory habitability inspection by the Department or an election to convert the status of the home to business use or salvage.

(3) To update the ownership on a manufactured home already elected and perfected as real property, and remaining in the same location as real property, the new owner of the home must submit a completed Application for Statement of Ownership and Location to the Department with supporting documentation as follows:

(B) Satisfactory evidence that any liens on the manufactured home have been discharged or that all lienholders have consented to the change.

(4) When a home is being converted to real property, a copy stamped "filed" by the county must be submitted to the Department as evidence that the requirements of §1201.2055 of the Standards Act have been satisfied and the real property election has been perfected. This must be done within sixty (60) days from the issuance date reflected on the Statement of Ownership and Location.

(g) When a title company or attorney's office fails to complete the conversion of a manufactured home to real property, the holder or servicer of the loan may apply for a statement of ownership and location electing real property status after-the-fact, providing that evidence of notice to all parties is sent via certified mail and that proof of such efforts is provided along with an affidavit of fact describing such efforts, pursuant to §1201.2055(i)(3) of the Standards Act.

(h) Submitting an application for Statement of Ownership and Location pursuant to the abandonment provision in §1201.217 of the Standards Act, should include an affidavit of fact, on the prescribed form, attesting to that all statutory notifications have been made to the appropriate parties, including the tax assessor-collector of the county where the home is located, and evidence that all notification was sent via certified mail.

§80.93.Recording Tax Liens on Manufactured Homes.

(a) Manually filed tax liens shall be filed with the Department using the form set forth in Subchapter I of this chapter (relating to Forms). No other form will be accepted for the manual filing of tax liens. The form must be properly completed.

(b) Electronically filed tax liens and tax lien releases shall be filed with the Department using the required format as provided in the following Tax Lien File Layout. No other format will be accepted for electronic filing of tax liens.

Figure: 10 TAC §80.93(b) (.pdf)

(c) For tax liens recorded after June 18, 2005, but prior to the rules that were effective on January 29, 2006, those tax liens relating to tax years prior to 2001 will be disregarded and will not be treated as having been recorded.

(d) A tax collector may file as a central tax collector under a single taxing entity ID number, in which case the liens recorded or released under that taxing entity ID number will extend to all liens created for tax obligations to the taxing entity for which the filer collects. In order, however, to file as a central collector, the filer must complete and provide to the Department the form set forth in Subchapter I of this chapter. A single filing for multiple taxing entities must reflect the aggregate amount of the tax liabilities to which the filing relates.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 31, 2008.

TRD-200801685

Joe A. Garcia

Executive Director, Manufactured Housing Division

Texas Department of Housing and Community Affairs

Earliest possible date of adoption: May 11, 2008

For further information, please call: (512) 475-2206

Subchapter I. FORMS

10 TAC §80.100

No other statutes, codes, or articles are affected by the proposed rules.

§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 Installation 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. [ ~~Application for Correction to Statement of Ownership and Location.~~]

(21) Affidavit of Fact.

(22) Affidavit of Error.

(23) Affidavit of Fact for Right of Survivorship.

(24) Addendum to Application for SOL. [~~Affidavit of Fact for Incomplete SOL Application.~~]

(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 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) Statement from Tax Assessor-Collector.

(40) Notice of Intent to Acquire Ownership of an Abandoned Home.

(41) Affidavit of Fact for Abandonment.

(42) Disclosure to Consumer (Possible Need to Vacate Home if Financing does not Close.)

(43) Application for Salesperson's License Renewal.

(44) Application for License Instruction Provider.

(b) Forms.

(1) Application for Manufacturer's License.

Figure: 10 TAC §80.100(b)(1) (.pdf)

(2) Application for Retailer, Broker, Installer and/or Rebuilder's License.

Figure: 10 TAC §80.100(b)(2) (.pdf)

(3) (No change.)

(4) Application for Salesperson's License.

Figure: 10 TAC §80.100(b)(4) (.pdf)

(5) - (15) (No change.)

(16) Notice of Installation (Form T).

Figure: 10 TAC §80.100(b)(16) (.pdf)

(17) - (18) (No change.)

(19) Application for Statement of Ownership and Location.

Figure: 10 TAC §80.100(b)(19) (.pdf)

(20) Affidavit of Fact for Real Property. [ ~~Application for Correction to Statement of Ownership and Location.~~]

Figure: 10 TAC §80.100(b)(20) (.pdf)

(21) - (23) (No change.)

(24) Addendum to Application for SOL. [~~Affidavit of Fact for Incomplete SOL Application.~~]

Figure: 10 TAC §80.100(b)(24) (.pdf)

(25) - (30) (No change.)

(31) Notice of Lien to Perfect a Lien (Other than Tax Lien) Form.

Figure: 10 TAC §80.100(b)(31) (.pdf)

(32) Notification of filing status as a Central Tax Collector.

Figure: 10 TAC §80.100(b)(32) (.pdf)

(33) - (34) (No change.)

(35) Application for License Renewal (other than a salesperson).

Figure: 10 TAC §80.100(b)(35) (.pdf)

(36) - (37) (No change.)

(38) Probationary Notice of Installation (Form T).

Figure: 10 TAC §80.100(b)(38) (.pdf)

(39) Statement from Tax Assessor-Collector.

Figure: 10 TAC §80.100(b)(39) (.pdf)

(40) Notice of Intent to Acquire Ownership of Abandoned Manufactured Home.

Figure: 10 TAC §80.100(b)(40) (.pdf)

(41) Affidavit of Fact for Abandonment.

Figure: 10 TAC §80.100(b)(41) (.pdf)

(42) Disclosure to Consumer of Possible Need to Vacate Home if Financing does not close.

Figure: 10 TAC §80.100(b)(42) (.pdf)

(43) Application for Salesperson's License Renewal.

Figure: 10 TAC §80.100(b)(43) (.pdf)

(44) Application for License Instruction Providers.

Figure: 10 TAC §80.100(b)(44) (.pdf)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 31, 2008.

TRD-200801686

Joe A. Garcia

Executive Director, Manufactured Housing Division

Texas Department of Housing and Community Affairs

Earliest possible date of adoption: May 11, 2008

For further information, please call: (512) 475-2206