| (a) The Department will monitor to determine if HTC,
HOME, BOND, HTF, NSP, TCAP, and Exchange properties comply with published
rent limits which include an allowance for tenant paid utilities.
For HTC, TCAP and Exchange buildings, if the residents pay utilities
directly to the Owner of the building or to a third party billing
company, and the amount of the bill is based on an allocation method
or "ratio utility billing system" (RUBS), this monthly amount will
be considered a mandatory fee. For HTC, TCAP and Exchange buildings,
if the residents pay utilities directly to the Owner of the building
or to a third party billing company, and the amount of the bill is
based on the tenant's actual consumption, Owner may account for the
utility in an allowance. The rent, plus all mandatory fees, plus an
allowance for those utilities paid by the resident directly to a utility
provider, must be less than the allowable limit. For HOME, BOND, HTF,
and NSP buildings, Owners may account for utilities paid directly
to the Owner or to a third party billing company in their utility
allowance. Where residents are responsible for some, or all, of the
utilities--other than telephone, cable, and internet--Development
Owners must use a utility allowance that complies with both this section
and the applicable program regulations. An Owner may not change utility
allowance methods or start charging residents for a utility without
written approval from the Department. Example
607(1): A Housing Tax Credit Development has been paying for
water and sewer since the beginning of the Compliance Period. In year
8, the owner decides to require residents to pay for water and sewer.
Prior written approval from the Department is required. Any such request
must include the Utility Allowance Questionnaire found on the Department's
website.
(b) Rural Housing Services (RHS) buildings or buildings
with RHS assisted tenants. The applicable utility allowance for the
Development will be determined under the method prescribed by the
RHS (or successor agency). No other utility method described in this
section can be used by RHS buildings or buildings with RHS assisted
tenants.
(c) HUD-Regulated buildings layered with any Department
program. If neither the building nor any tenant in the building receives
RHS rental assistance payments, and the rents and the utility allowances
of the building are reviewed by HUD (HUD-regulated building), the
applicable utility allowance for all rent restricted Units in the
building is the applicable HUD utility allowance. No other utility
method described in this section can be used by HUD-regulated buildings.
(d) Other Buildings. For all other rent-restricted
Units, Development Owners must use one of the methods described in
paragraphs (1) - (5) of this subsection:
(1) The utility allowance established by the applicable
Public Housing Authority (PHA) for the Section 8 Existing Housing
Program. The Department will utilize Texas Local Government Code,
Chapter 392 to determine which PHA is the most applicable to the Development.
If the PHA publishes different schedules based on building type, the
Owner is responsible for implementing the correct schedule based on
the Development's building type(s). Example
607(2): The applicable PHA publishes a separate utility allowance
schedule for Apartments (5+ units), one for Duplex/Townhomes and another
for Single Family Homes. The Development consist of twenty buildings,
ten of which are Apartments (5+ units) and the other ten buildings
are Duplexes. The Owner must use the correct schedule for each building
type. In the event the PHA publishes a utility allowance schedule
specifically for energy efficient units, the Owner must demonstrate
that the building(s) meet the housing authority's specifications for
energy efficiency on an ongoing basis. If the applicable PHA allowance
lists flat fees for any utility, those flat fees must be included
in the calculation of the utility allowance if the resident is responsible
for that utility. If an Owner chooses to implement a methodology as
described in paragraph (2), (3), (4), or (5) of this subsection, for
Units occupied by Section 8 voucher holders, the utility allowance
remains the applicable PHA utility allowance established by the PHA
from which the household's voucher is received. In general, if the
property is located in an area that does not have a municipal, county
or regional housing authority that publishes a utility allowance schedule
for the Section 8 Existing Housing Program, Owners must select an
alternative methodology. In the event the property is located in an
area without a clear municipal or county housing authority the Department
may permit the use of another housing authority's utility allowance
schedule on a case by case basis. Prior approval from the Department
would be required and the owner would be required to obtain approval
on an annual basis;
(2) A written estimate from a local utility provider.
If there are multiple utility companies that service the Development,
the local provider must be a residential utility company that offers
service to the residents of the Development requesting the methodology.
The Department will use the Texas Electric Choice website: http://www.powertochoose.org/
to verify the availability of service. If the utility company is not
listed as a provider in the Development's ZIP code, the request will
be denied. Additionally, the estimate must be signed by the utility
provider representative and specifically include all "component charges"
for providing the utility service. Receipt of the information from
the utility provider begins the ninety (90) day period after which
the new utility allowance must be used to compute gross rent;
(3) The HUD Utility Schedule Model. A utility estimate
can be calculated by using the "HUD Utility Schedule Model" that can
be found at http://www.huduser.org/portal/resources/utilmodel.html
(or successor Uniform Resource Locator). The rates used must be no
older than the rates in effect sixty (60) days prior to the beginning
of the ninety (90) day period in which the Owner intends to implement
the allowance. For Owners calculating a utility allowance under this
methodology, the model, along with all back-up documentation used
in the model, must be submitted to the Department, on a CD, within
the timeline described in subsection (f) of this section. The date
entered as the "Form Date" on the "Location" tab of the spreadsheet
will be the date used to begin the ninety (90) day period after which
the new utility allowance must be used to compute gross rent;
(4) An Energy Consumption Model. The utility consumption
estimate must be calculated by a properly licensed mechanical engineer
or an individual holding a valid Residential Energy Service Network
(RESNET) or Certified Energy Manager (CEM) certification. The individual
must not be related to the Owner within the meaning of §267(b)
or §707(b) of the Code. The utility consumption estimate must,
at minimum, take into consideration specific factors that include,
but are not limited to, Unit size, building orientation, design and
materials, mechanical systems, appliances, and characteristics of
building location. The ninety (90) day period after which the new
utility allowance must be used to compute gross rent will begin sixty
(60) days after the end on the last month of the twelve (12) month
period for which data was used to compute the estimate; and
(5) An allowance based upon an average of the actual
use of similarly constructed and sized Units in the building using
actual utility usage data and rates, provided that the Development
Owner has the written permission of the Department. This methodology
is referred to as the "Actual Use Method."
(e) For a Development Owner to use the Actual Use Method
they must:
(1) Provide a minimum sample size of usage data for
at least 5 Continuously Occupied Units of each Unit Type or 20 percent
of each Unit Type whichever is greater. Example
607(3): A Development has 20 three bedroom/one bath Units,
and 80 three bedroom/two bath Units. Each bedroom/bathroom equivalent
Unit is within 120 square feet of the same floor area. Data must be
supplied for at least five of the three bedroom/one bath Units, and
sixteen of the three bedroom/two bath Units. If there are less than
five Units of any Unit Type, data for 100 percent of the Unit Type
must be provided;
(2) Scan the information in subparagraphs (A) - (E)
of this paragraph onto a CD and submit it to the Department no later
than the beginning of the ninety (90) day period in which the Owner
intends to implement the allowance, reflecting data no older than
sixty (60) days prior to the ninety (90) day implementation period. Example 607(4): The utility provider releases
the information regarding electric usage at Westover Townhomes on
February 5, 2010. The data provided is from February 1, 2009 through
January 31, 2010. The Owner must submit the information to the Department
no later than March 31, 2010 for the information to be valid;
(A) An Excel spreadsheet listing each Unit for which
data was obtained to meet the minimum sample size requirement of a
Unit Type, the number of bedrooms, bathrooms and square footage for
each Unit, the household's move-in date, the actual kilowatt usage
for each month of the twelve (12) month period for each Unit for which
data was obtained, and the rates in place at the time of the submission;
(B) A copy of the request to the utility provider (or
billing entity for the utility provider) to provide usage data;
(C) All documentation obtained from the utility provider
(or billing entity for the utility provider) and/or copies of actual
utility bills gathered from the residents, including all usage data
not needed to meet the minimum sample size requirement and any written
correspondence from the utility provider;
(D) The rent roll showing occupancy as of the end of
the month for the month in which the data was requested from the utility
provider; and
(E) Documentation of the current utility allowance
used by the Development;
(3) Upon receipt of the required information, the Department
will determine if the Development Owner has provided the minimum information
necessary to calculate an allowance using the Actual Use Method. If
so, the Department shall calculate the utility allowance for each
bedroom size using the guidelines described in subparagraphs (A) -
(E) of this paragraph;
(A) If data is obtained for more than 20 percent or
5 of each Unit Type, all data will be used to calculate the allowance;
(B) If more than twelve (12) months of data is provided
for any Unit, only the data for the most current twelve (12) months
will be averaged;
(C) The allowance will be calculated by multiplying
the average units of measure for the applicable utility (i.e. kilowatts
over the last twelve (12) months by the current rate) for all Unit
Types within that bedroom size. For example, if sufficient data is
supplied for 18 two bedroom/one bath Units, and 12 two bedroom/two
bath Units, the data for all 30 Units will be averaged to calculate
the allowance for all two bedroom Units;
(D) The allowance will be rounded up to the next whole
dollar amount. If allowances are calculated for different utilities,
each utility's allowance will be rounded up to the next whole dollar
amount and then added together for the total allowance; and
(E) If the data submitted indicates zero usage for
any month, the data for that Unit will not be used to calculate the
Utility Allowance;
(4) The Department will complete its evaluation and
calculation within forty-five (45) days of receipt of all the information
requested in paragraph (2) of this subsection;
(5) Receipt of approval from the Department will begin
the ninety (90) day period after which the new utility allowance must
be used to compute gross rent; and
(6) For newly constructed Developments or Developments
that have Units which have not been continuously occupied, the Department,
on a case by case basis, may use consumption data for Units of similar
size and construction in the geographic area to calculate the utility
allowance.
(f) Effective dates. If the Owner uses the methodologies
as described in subsection (b), (c), or (d)(1) of this section, any
changes to the allowance can be implemented immediately, but must
be implemented for rent due ninety (90) days after the change. For
methodologies as described in subsection (d)(2) - (5) of this section,
the allowance cannot be implemented until the estimate is submitted
to the Department and is made available to the residents by posting
in a common area of the leasing office at the Development. This action
must be taken by the beginning of the ninety (90) day period in which
the Owner intends to implement the utility allowance. With the exception
of the methodology described in subsection (d)(5) of this section,
if a response is not received from the Department within the ninety
(90) day period, the Owner may temporarily use the submission as a
safe harbor until the Department provides written authorization (the
Owner cannot assume that the allowance is approved by the Department
but can operate in good faith prior to notification). Failure to submit
the proposed utility allowance to the Department and make it available
to the residents will result in a finding of noncompliance.
(g) Requirements for Annual Review. Owners utilizing
the methods described in subsections (b) and (c) of this section must
demonstrate that the utility allowance has been reviewed annually.
Any change in the method described in subsection (d)(1) of this section
can be implemented immediately, but must be implemented for rent due
ninety (90) days after the change. Owners utilizing the methods described
in subsection (d)(2) - (5) of this section must submit to the Department,
once a calendar year, copies of the utility estimate and simultaneously
make the estimate available to the Cont'd... |
