§ 52 — Gas, electric and steam service to tenants provided through shared meters

§ 52. Gas, electric and steam service to tenants provided through\nshared meters. 1. Definitions: As used in this section, the following\nterms shall have the following meanings:\n (a) "Owner" means and includes the owner or owners of the freehold of\nthe premises or lesser estate therein, mortgagee or vendee in\npossession, assignee of rents, receiver, executor, trustee, lessee,\nagent, or any other person, firm or corporation, directly or indirectly\nin control of a dwelling.\n (b) "Shared meter" means any utility meter that measures gas, electric\nor steam service provided to a tenant's dwelling and also measures such\nservice to areas outside that dwelling and such tenant pays charges for\nthe service to areas outside the dwelling measured through such meter.\n (c) "Dwelling" means any building or structure or portion thereof\nwhich is occupied in whole or in part as the home, residence or sleeping\nplace of one or more human beings, including any equipment located\noutside such building or structure or portion thereof which is under the\nexclusive use and control of the occupant, and is either rented, leased,\nlet or hired out, to be occupied, or is occupied as the residence or\nhome of one or more human beings.\n (d) "Utility" means any gas, electric and steam corporation and/or\nmunicipality providing service to residential customers.\n (e) "Shared meter customer" means any tenant who rents a dwelling from\nan owner that is served by a shared utility meter for which the tenant,\nrather than the owner, is the utility's customer of record.\n (f) "Extraordinary cost" means the cost, as determined by a qualified\nprofessional, of installing equipment necessary to eliminate a shared\nmeter in a dwelling or portion thereof which is in excess of the amount\nof rent for four months rental of such dwelling. The commission shall\nadopt additional rules for determining extraordinary cost based upon\nwhether the amount of service measured by the shared meter that is\nutilized outside the shared meter customer's dwelling is sufficient to\nwarrant the cost of such installation.\n (g) "Legal impediment" means a restriction which prevents separate\nmetering, rewiring, or repiping due to zoning ordinances which limit the\nnumber or type or location of meters in a building or due to the\nhistorical significance of the structure or such other legal\nrestrictions as determined by the commission in its rules.\n (h) "Shared area charges" means that portion of charges billed to the\nshared meter customer which remains after excluding the estimated\ncharges for service used by the shared meter customer and where\napplicable, a third party, for the period during which the owner\nmaintained a shared meter condition in violation of this section or six\nyears whichever is shorter.\n (i) "Third party involvement" means that a third party whose utility\nservice was to be measured through another meter had caused or\nbenefitted from a shared meter condition.\n 2. Owner's responsibility for service measured through a shared meter.\n(a) An owner shall eliminate any shared meter condition or, in the\nalternative, establish an account in the owner's name for all the shared\narea charges for service measured through a shared meter effective six\nyears prior to the discovery of or determination that a shared meter\ncondition exists, or the first day of the tenancy, or the date the\nshared meter condition began, or the sixtieth day after the owner knew\nor should have known that third party involvement exists, or the date\nthe owner assumed title to the dwelling, whichever is most recent in\ntime and for all future service measured by the shared meter. The\nutility shall, upon an owner's application, open such an account and\nbill the owner for all applicable shared area charges and all future\nservice measured by the shared meter through such account.\n (b) (i) In the event that a legal impediment or extraordinary cost\nprevents elimination of a shared meter condition or in the event that\nthe service measured through the shared meter is minimal, under\ncommission rules adopted, pursuant to subdivision eight of this section,\nthe owner, as an alternative to eliminating the shared meter condition,\nmay enter into a mutually acceptable written agreement with the shared\nmeter customer and where applicable, a third party, for apportioning the\ncharges for service measured through the shared meter; provided,\nhowever, that the shared meter customer shall pay only for the estimated\namount of service provided to the shared meter customer's dwelling, or\n (ii) In the event that there is an existing written agreement between\nthe owner and the shared meter customer, and where applicable, a third\nparty, for the apportionment of charges for service measured by a shared\nmeter prior to October twenty-fourth, nineteen hundred ninety-one, such\nagreement will remain in effect, as an alternative to eliminating the\nshared meter condition or establishing an account in the owner's name,\nuntil any lease or rental agreement for the rental of the dwelling\nexpires, provided, however, that the shared meter customer or third\nparty may request the commission or its designee to review the existing\nwritten agreement if such shared meter customer or third party believes\nthe terms are unfair or unreasonable. If the commission or its designee\nfinds that the terms of the existing written agreement are unfair or\nunreasonable, the commission or its designee shall void such agreement\nand assist the interested parties in negotiating and executing a\nmutually acceptable written agreement.\n (c) (i) In the event that a mutually acceptable written agreement is\nnegotiated and executed, the owner shall provide a copy of the agreement\nto the utility, the shared meter customer, and where applicable, a third\nparty.\n (ii) If the interested parties are unable to negotiate a mutually\nacceptable written agreement, the commission or its designee, upon a\ncomplaint by a customer or owner, shall order a remedy, consistent with\nthe relief provided in this section, as it deems proper. The commission\nor its designee shall have the authority to apportion estimated charges\nfor service measured by a shared meter among the owner, shared meter\ncustomer and any third party.\n 3. The provisions of this section: (a) may not be waived by an owner,\ntenant, or utility; and\n (b) shall not affect the validity of a lease or rental agreement in\neffect on or before the effective date of this section. For purposes of\nthis section, renewals and extensions of leases and rental agreements\nthat commence after the effective date of this section shall be deemed\nto be new leases and rental agreements.\n 4. Determination of shared meter condition. (a) Upon a customer's\nverbal or written complaint that a shared meter is measuring service to\nthe customer's dwelling and that the customer is responsible for the\ncharges for such service or upon receipt of other information indicating\nthat a shared meter may exist, a utility shall notify the owner in\nwriting of the owner's responsibilities under this section, that a\ncomplaint was received or information obtained that a shared meter may\nexist, and that the utility is required to conduct an investigation. If\nsuch utility is not the utility in ownership or control of the meters\nand related pipes, fittings, wires and other apparatus associated with\nthe establishment and measurement of service to such customer's\ndwelling, notice shall also be provided to such metering utility. Upon\nthe request of an owner or upon a complaint by a customer or upon\nreceipt of information indicating that a shared meter may exist, such\nmetering utility shall investigate and determine whether such service is\nor is not measured by a shared meter. Such metering utility may\ndetermine if separate metering or rewiring or repiping is possible and\nshall provide the owner with information describing how shared meter\nconditions can be eliminated. The investigation shall include, but not\nbe limited to, conducting appropriate tests, an examination of wiring,\npiping, meters and heating equipment in the building as may be needed,\nan estimate of gas, electricity or steam used in the shared meter\ncustomer's dwelling and in areas outside the dwelling, and a review of\nbilling records.\n (b) The determination shall be provided in writing, within thirty\nbusiness days of the date of the complaint or receipt of information or\nowner's request, to the customer, the owner, any other tenants receiving\nservice measured by the shared meter, and any other utility providing\nservice to such customer through such meter. Such written determination\nshall include a description of the specific areas outside the dwelling\nserved by the shared meter, the nature of the uses of the service, and\nthe proportional amount of service registered on the shared meter that\nis provided to the shared meter customer's dwelling and to areas outside\nthe dwelling. A notice shall be included with the determination\ninforming the recipients of the availability of the commission's\ncomplaint handling procedures, and providing the department's address\nand telephone number for filing objections to such determination.\n (c) Failure of an owner to provide access to any common area in the\nbuilding or to cooperate with any reasonable request made by the\ninvestigating utility shall result in a determination that the\ncustomer's dwelling is served by a shared meter, specifying the owner's\naction that such utility understood to be a failure to cooperate.\nFailure of a customer making a shared meter complaint to provide access\nto a dwelling controlled by the customer or to cooperate with any\nreasonable request made by the investigating utility shall cause the\nutility to suspend the investigation and to notify in writing the\ncustomer and the owner that the investigation is suspended, specifying\nthe customer's action that such utility understood to be a failure to\ncooperate. A utility duly acting under this paragraph is entitled to\nmake the determinations provided for and shall be held harmless from any\nsubsequent monetary claim by an owner that the dwelling was not served\nby a shared meter or by a shared meter customer that the dwelling was\nserved by a shared meter.\n (d) Any customer filing a complaint under this section or owner who\ndisagrees with a utility's determination may utilize the commission's\ncomplaint handling procedures to obtain a written departmental\ndetermination by complaining to the department within forty-five days\nafter receipt of the utility's determination. In the event that the\nutility fails to provide a determination on a complaint under this\nsection within the required time period, the department shall\ninvestigate, upon the shared meter customer's or owner's request, and\nissue a written determination. The commission or its designee shall have\nthe authority to apportion estimated charges for service measured by a\nshared meter among the owner, shared meter customer and any third party.\n 5. Change in billing. Notwithstanding any inconsistent provision of\nlaw, one hundred twenty days after notice is sent to the owner that the\nutility or the department has made a final determination that the shared\nmeter customer's dwelling is served by a shared meter in violation of\nsubdivision two of this section:\n (a) the utility shall verify that, pursuant to subdivision two of this\nsection, the owner has eliminated the shared meter condition or has\nentered into a mutually acceptable written agreement with the shared\nmeter customer and where applicable, a third party, for apportioning the\ncharges for service measured by the shared meter and has provided a copy\nto the utility, or, as an alternative to eliminating the shared meter\ncondition, has established a separate account in the owner's name as the\ncustomer of record for all applicable shared area charges and all future\nservice measured by the shared meter;\n (b) if the owner has not eliminated the shared meter or entered into\nsuch agreement or established such account or if the amount of the\nservice is not minimal under commission rules adopted pursuant to\nsubdivision eight of this section, the utility shall establish an\naccount in the owner's name as the customer of record for service\nmeasured through the shared meter and bill the owner for all applicable\nshared area charges and all future service measured through the shared\nmeter; provided, however, that the commission or its designee may grant\nan extension not to exceed ninety days to an owner if, in its judgment,\nextenuating circumstances beyond an owner's control prevented timely\ncompliance, or such shared meter is the subject of an ongoing department\nreview regarding the apportionment of estimated charges pursuant to\nsubparagraph (ii) of paragraph (c) of subdivision two of this section;\n (c) the utility shall refund to the customer or cancel shared area\ncharges; provided, however, that when third party involvement exists,\nthe utility shall credit the shared meter customer for all the estimated\ncharges of the third party;\n (d) when such determination follows a customer complaint regarding a\nshared meter condition or a utility discovery of a shared meter\ncondition that is not in response to an owner's request for a utility\ninspection for a shared meter condition, with respect to utility service\nbilled after December first, nineteen hundred ninety-six, the utility\nshall comply with the provisions of paragraphs (a), (b) and (c) of this\nsubdivision, and further bill the owner and refund to the shared meter\ncustomer an estimated amount of charges for twelve months of all service\nmeasured by the shared meter; provided, however, that this paragraph\nshall not apply to a shared meter condition if service measured through\nthe shared meter is minimal under commission rules adopted pursuant to\nsubdivision eight of this section. An owner so billed may petition the\ncommission or its designee for a determination that the amount of such\nbill is excessive and that such bill and refund be adjusted accordingly;\nprovided, however, neither the adjusted bill nor the adjusted refund\nshall be less than twenty-five percent of the total amount of the\noriginal bill. The commission is authorized to make such a determination\nand adjustment if it finds that a bill and refund of twelve months'\ncharges is unduly burdensome and unfair. In making such determination\nthe commission or its designee shall consider the total amount of the\nbill and refund in relation to the shared area charges over such twelve\nmonth period and any other equitable factors established by the\ncommission; and\n (e) the utility shall bill the third party, when third party\ninvolvement exists, instead of the owner, for the applicable estimated\ncharges for service used by the third party credited by the utility to\nthe shared meter customer.\n 6. Refunded and cancelled utility charges. (a) No owner may bill a\nshared meter customer or otherwise recover from such customer any\nportion of the cancelled charges or charges refunded to such customer\nand shall not bill such customer for any portion or percentage of any\nfuture shared meter bills in the owner's name; provided, however, that\nthis section shall not preclude an owner from increasing future rents by\na specific sum to the extent otherwise permitted by law.\n (b) A shared meter customer who receives a refund from a utility\npursuant to this section shall return a proportional share of that\nrefund to each person who had paid that shared meter customer for\nutility service associated with the payment so refunded. The utility\nshall be held harmless from the claim of any person for a share of any\npayment so refunded.\n 7. Remedies. Where the owner or shared meter customer demonstrates the\nexistence of third party involvement, the owner or shared meter customer\nshall be entitled respectively to recover the charges billed by the\nutility to the owner's account, or to the shared meter customer's\naccount, pursuant to this section in a civil action against the third\nparty in a court of competent jurisdiction.\n 8. Minimal service. Notwithstanding any provision of this section to\nthe contrary, the commission shall determine an appropriate quantity of\nservice on a shared meter that is utilized outside of the shared meter\ncustomer's dwelling which is to be considered minimal in commission\nrules and regulations.\n 9. Notice requirements. On or before December first, nineteen hundred\nninety-five, every utility shall notify its residential customers and\neach owner served by the utility of the requirements of this section.\nEach utility may request from its customers the names and addresses of\nthe owners or recipients of rent for dwellings occupied by the customers\nor obtain such names and addresses from any available public records in\norder to provide the notice required by this subdivision. Such notice\nshall be mailed in a postpaid wrapper under separate cover than bills\nfor service to the premises. Every utility shall also provide notice at\nleast annually to owners of dwellings, to the extent practicable, under\na plan submitted by the utility and approved by the department. Every\nutility shall also implement an outreach program subsequent to such\nwritten notice. Each utility shall submit a plan to provide notice\nwithin sixty days of the effective date of this subdivision. In\naddition, every utility shall notify each of its customers at least\nannually, of the requirements that apply to owners, shared meter\ncustomers and utilities pursuant to this section and shall include the\ndepartment's address and phone number for questions and complaints. In\naddition, each utility may arrange for the publication of notices in\nnewspapers or the broadcasting in other media of notices describing such\nrequirements. The notices shall be subject to the approval of the\ndepartment.\n 10. Treatment of refunds. (a) Where, as of the effective date of this\nsubdivision, an owner of a building consisting of one to five dwelling\nunits has been billed for service measured through a shared meter\nwithout an apportionment of charges for service used by the shared meter\ncustomer and, where applicable, a third party, the utility shall refund\nto the owner, upon the written request of the owner, any charges which\nrepresent service used in the shared meter customer's dwelling and,\nwhere applicable, a third party. Such written request must be submitted\nno later than December first, nineteen hundred ninety-seven, provided\nthat an owner may petition the commission or its designee for an\nextension upon a finding that such owner has not received timely or\nadequate notice of the availability of such refund. In any case where an\nowner has been billed but has not paid for such service, the utility\nshall only collect from the owner shared area charges. The utility shall\nnot attempt to charge the shared meter customer or the third party for\nany monies refunded to the owner pursuant to this section.\n (b) In any case where a shared meter customer is entitled, following a\nfinal determination of shared meter condition prior to the effective\ndate of this subdivision, to a refund but has not received such refund\nbecause the owner has not made payments for which the owner was billed,\nsuch shared meter customer shall receive his or her refund from the\nutility.\n (c) Notwithstanding any other provision of this section, in the case\nwhere a shared meter customer is entitled, following a final\ndetermination of a shared meter condition, to a refund or cancellation\nof shared meter charges and title to the dwelling has been transferred\nto a new owner, such shared meter customer shall receive his or her\nrefund from the utility for charges for service measured through a\nshared meter, excluding the estimated charges for service used in the\nshared meter customer's dwelling, for the period of time effective six\nyears prior to the discovery of or determination that a shared meter\ncondition exists, or the first day of the tenancy, or the date the\nshared meter condition began, whichever is most recent in time.\n (d) The commission shall investigate whether and to what extent\nrefunds provided pursuant to this subdivision were made necessary by\ninadequate notice to customers regarding the provisions of this section.\n 11. Other relief. Notwithstanding any other provision of this section,\nthe rights of a utility customer under this article to seek and obtain\nrelief for payments made for service not provided to his or her dwelling\nshall not be diminished in any manner. Unless otherwise specified in\nthis section, the rights of a utility to collect payment for service\nrendered but unpaid shall not be diminished in any manner.\n 12. Apportionment. The commission shall establish guidelines for\nestimating the amount of utility use in other space outside the shared\nmeter customer's dwelling and for apportioning costs required by this\nsection.\n