MHD Announcement: Deposits

The Manufactured Housing Division (MHD) promotes self-compliance through education by providing compliance reviews, training, guidance, and even individualized assistance to ensure that licensed holders are in compliance with establishes laws and rules. This style of regulation affords the license holder with the opportunity to understand what is required, take corrective action if necessary and maintain compliance to avoid any enforcement issues.

However, when a violation adversely affects the consumer, the MHD must take a different approach and act as a consumer protection agency resulting in remedy to the consumer and enforcement action against the license holder including fines, probation and even license revocation.

Recently, there has been a trend of instances where the retailer is not providing the required written disclosure to the consumer documenting the deposit, providing the name and address of the company accepting the deposit and advising them how to request a refund. This is a violation that will result in enforcement action.

Effective April 1, 2019, the MHD will begin placing an emphasis on deposit issues in our compliance reviews. In the interim, Retailer’s should verify that their files include the required disclosure for deposits taken and ensure that eligible deposits are refunded within the required time to avoid any enforcement action.

Applicable Law and Rule:

• TEX. ADMIN. CODE § 80.32(k) which states that a retailer accepting a deposit must give the consumer a written statement setting forth: (1) the amount of such deposit; (2) a statement of any requirements to obtain or limitations on any such refund; and (3) the name and business address of the person receiving such a deposit. (Copies of these documents must be whenever a retailer accepts a deposit from a consumer.)

• TEX. OCC. CODE § 1201.151(a), except as otherwise provided by this section, a retailer must refund a consumer's deposit not later than the 15th day after the date that a written request for the refund is received from the consumer.

• TEX. OCC. CODE § 1201.151(b), the deposit may be retained only if: (1) the consumer specially orders from the manufacturer a manufactured home that is not in the retailer's inventory; (2) the home conforms to the specifications of the special order and any representations made to the consumer; (3) the consumer fails or refuses to accept delivery and installation of the home by the retailer; AND (4) the consumer was given conspicuous written notice of the requirements for retaining the deposit. (All four circumstances must be met to retain up a portion of the deposit.)

• TEX. OCC. CODE § 1201.151(c), the retailer may not retain more than five percent of the estimated cash price of the specially ordered home and must refund any amount that exceeds five percent

• TEX. OCC. CODE § 1201.151 (d), this section does not apply to: (1) a deposit held in escrow in a real estate transaction; or (2) money stated to be a down payment in an executed retail sales contract

• TEX. OCC. CODE § 1201.151 (e), a deposit becomes a down payment upon execution of a sales purchase contract. Thereafter, if the consumer exercises the consumer's three-day right of rescission in accordance with Section 1201.1521, the retailer shall, not later than the 15th day after the date of the rescission, refund to the consumer all money and other consideration received from the consumer, with only the allowable deduction for real property appraisal and title work expenses in accordance with Section 1201.1511. (f) Retention of real property appraisal and title work expenses authorized by Subsection (e) is not allowed if the consumer exercises the right of rescission in accordance with 12 C.F.R. Section 1026.23.

The purpose of this announcement is to educate and inform the manufactured housing industry of potential issues and promote voluntary compliance to reduce consumer complaints and enforcement action.

For more information, please feel free to contact us at 877-313-3023 or via email at licensing@tdhca.texas.gov.

We look forward to serving you.