There has been some legal action of late that pertains to RUBS billing here in Texas. A number of properties are being sued, several cases have gone to trial, and a number of law firms smell ‘blood in the water’.
There is a high likelihood that you could be managing a property that could be in violation of, and subject to, the issues discussed here.
The below represents what we are hearing and what we know thus far, please forgive any errors and/or omissions:
There is language in the older TNRCC RUBS rules regarding water conservation and low water use toilets. HB 2404, revised in 2001 for Chapter 291, Section 291.127 outlines that any property desiring to implement a RUBS billing program must address their toilets and begin using low gpf toilets. There is some misunderstanding here regarding who is grandfathered in as the original language indicates any property with an active RUBS billing program in place prior to the 2001 revision was excluded from the low flow toilet mandate; however, the grandfathered exception does not survive a property sale. Properties were given 12 months from the 2001 revision date to make toilet flush changes. Since there is no case law in Texas regarding what to do about properties that are not in compliance, a few law firms are seeking to sign up residents, find a unit in violation, and file a class action lawsuit against the property indicating that property never had the authority to have a RUBS billing program in place after 2001.
The law firms are typically the traffic ticket law firms that send out thousands of postcard mailers. They are signing clients by re-treading through their own postcards mailing lists sent to apartment properties. For any apartment resident traffic ticket clients they signed up through those mailing efforts, the law firms feel they can now circumvent Texas Bar rules/laws regarding client solicitation, and are now reaching out to see if they can represent those clients as the initial client for class action lawsuits filed for RUBS billing HB2404 non-compliance. Often they are finding previous residents and using them as initial client as well as ‘soliciting’ whole streets of properties.