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This entry was published on 2014-09-22
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SECTION 52
Gas, electric and steam service to tenants provided through shared meters
Public Service (PBS) CHAPTER 48, ARTICLE 2
§ 52. Gas, electric and steam service to tenants provided through
shared meters. 1. Definitions: As used in this section, the following
terms shall have the following meanings:

(a) "Owner" means and includes the owner or owners of the freehold of
the premises or lesser estate therein, mortgagee or vendee in
possession, assignee of rents, receiver, executor, trustee, lessee,
agent, or any other person, firm or corporation, directly or indirectly
in control of a dwelling.

(b) "Shared meter" means any utility meter that measures gas, electric
or steam service provided to a tenant's dwelling and also measures such
service to areas outside that dwelling and such tenant pays charges for
the service to areas outside the dwelling measured through such meter.

(c) "Dwelling" means any building or structure or portion thereof
which is occupied in whole or in part as the home, residence or sleeping
place of one or more human beings, including any equipment located
outside such building or structure or portion thereof which is under the
exclusive use and control of the occupant, and is either rented, leased,
let or hired out, to be occupied, or is occupied as the residence or
home of one or more human beings.

(d) "Utility" means any gas, electric and steam corporation and/or
municipality providing service to residential customers.

(e) "Shared meter customer" means any tenant who rents a dwelling from
an owner that is served by a shared utility meter for which the tenant,
rather than the owner, is the utility's customer of record.

(f) "Extraordinary cost" means the cost, as determined by a qualified
professional, of installing equipment necessary to eliminate a shared
meter in a dwelling or portion thereof which is in excess of the amount
of rent for four months rental of such dwelling. The commission shall
adopt additional rules for determining extraordinary cost based upon
whether the amount of service measured by the shared meter that is
utilized outside the shared meter customer's dwelling is sufficient to
warrant the cost of such installation.

(g) "Legal impediment" means a restriction which prevents separate
metering, rewiring, or repiping due to zoning ordinances which limit the
number or type or location of meters in a building or due to the
historical significance of the structure or such other legal
restrictions as determined by the commission in its rules.

(h) "Shared area charges" means that portion of charges billed to the
shared meter customer which remains after excluding the estimated
charges for service used by the shared meter customer and where
applicable, a third party, for the period during which the owner
maintained a shared meter condition in violation of this section or six
years whichever is shorter.

(i) "Third party involvement" means that a third party whose utility
service was to be measured through another meter had caused or
benefitted from a shared meter condition.

2. Owner's responsibility for service measured through a shared meter.
(a) An owner shall eliminate any shared meter condition or, in the
alternative, establish an account in the owner's name for all the shared
area charges for service measured through a shared meter effective six
years prior to the discovery of or determination that a shared meter
condition exists, or the first day of the tenancy, or the date the
shared meter condition began, or the sixtieth day after the owner knew
or should have known that third party involvement exists, or the date
the owner assumed title to the dwelling, whichever is most recent in
time and for all future service measured by the shared meter. The
utility shall, upon an owner's application, open such an account and
bill the owner for all applicable shared area charges and all future
service measured by the shared meter through such account.

(b) (i) In the event that a legal impediment or extraordinary cost
prevents elimination of a shared meter condition or in the event that
the service measured through the shared meter is minimal, under
commission rules adopted, pursuant to subdivision eight of this section,
the owner, as an alternative to eliminating the shared meter condition,
may enter into a mutually acceptable written agreement with the shared
meter customer and where applicable, a third party, for apportioning the
charges for service measured through the shared meter; provided,
however, that the shared meter customer shall pay only for the estimated
amount of service provided to the shared meter customer's dwelling, or

(ii) In the event that there is an existing written agreement between
the owner and the shared meter customer, and where applicable, a third
party, for the apportionment of charges for service measured by a shared
meter prior to October twenty-fourth, nineteen hundred ninety-one, such
agreement will remain in effect, as an alternative to eliminating the
shared meter condition or establishing an account in the owner's name,
until any lease or rental agreement for the rental of the dwelling
expires, provided, however, that the shared meter customer or third
party may request the commission or its designee to review the existing
written agreement if such shared meter customer or third party believes
the terms are unfair or unreasonable. If the commission or its designee
finds that the terms of the existing written agreement are unfair or
unreasonable, the commission or its designee shall void such agreement
and assist the interested parties in negotiating and executing a
mutually acceptable written agreement.

(c) (i) In the event that a mutually acceptable written agreement is
negotiated and executed, the owner shall provide a copy of the agreement
to the utility, the shared meter customer, and where applicable, a third
party.

(ii) If the interested parties are unable to negotiate a mutually
acceptable written agreement, the commission or its designee, upon a
complaint by a customer or owner, shall order a remedy, consistent with
the relief provided in this section, as it deems proper. The commission
or its designee shall have the authority to apportion estimated charges
for service measured by a shared meter among the owner, shared meter
customer and any third party.

3. The provisions of this section: (a) may not be waived by an owner,
tenant, or utility; and

(b) shall not affect the validity of a lease or rental agreement in
effect on or before the effective date of this section. For purposes of
this section, renewals and extensions of leases and rental agreements
that commence after the effective date of this section shall be deemed
to be new leases and rental agreements.

4. Determination of shared meter condition. (a) Upon a customer's
verbal or written complaint that a shared meter is measuring service to
the customer's dwelling and that the customer is responsible for the
charges for such service or upon receipt of other information indicating
that a shared meter may exist, a utility shall notify the owner in
writing of the owner's responsibilities under this section, that a
complaint was received or information obtained that a shared meter may
exist, and that the utility is required to conduct an investigation. If
such utility is not the utility in ownership or control of the meters
and related pipes, fittings, wires and other apparatus associated with
the establishment and measurement of service to such customer's
dwelling, notice shall also be provided to such metering utility. Upon
the request of an owner or upon a complaint by a customer or upon
receipt of information indicating that a shared meter may exist, such
metering utility shall investigate and determine whether such service is
or is not measured by a shared meter. Such metering utility may
determine if separate metering or rewiring or repiping is possible and
shall provide the owner with information describing how shared meter
conditions can be eliminated. The investigation shall include, but not
be limited to, conducting appropriate tests, an examination of wiring,
piping, meters and heating equipment in the building as may be needed,
an estimate of gas, electricity or steam used in the shared meter
customer's dwelling and in areas outside the dwelling, and a review of
billing records.

(b) The determination shall be provided in writing, within thirty
business days of the date of the complaint or receipt of information or
owner's request, to the customer, the owner, any other tenants receiving
service measured by the shared meter, and any other utility providing
service to such customer through such meter. Such written determination
shall include a description of the specific areas outside the dwelling
served by the shared meter, the nature of the uses of the service, and
the proportional amount of service registered on the shared meter that
is provided to the shared meter customer's dwelling and to areas outside
the dwelling. A notice shall be included with the determination
informing the recipients of the availability of the commission's
complaint handling procedures, and providing the department's address
and telephone number for filing objections to such determination.

(c) Failure of an owner to provide access to any common area in the
building or to cooperate with any reasonable request made by the
investigating utility shall result in a determination that the
customer's dwelling is served by a shared meter, specifying the owner's
action that such utility understood to be a failure to cooperate.
Failure of a customer making a shared meter complaint to provide access
to a dwelling controlled by the customer or to cooperate with any
reasonable request made by the investigating utility shall cause the
utility to suspend the investigation and to notify in writing the
customer and the owner that the investigation is suspended, specifying
the customer's action that such utility understood to be a failure to
cooperate. A utility duly acting under this paragraph is entitled to
make the determinations provided for and shall be held harmless from any
subsequent monetary claim by an owner that the dwelling was not served
by a shared meter or by a shared meter customer that the dwelling was
served by a shared meter.

(d) Any customer filing a complaint under this section or owner who
disagrees with a utility's determination may utilize the commission's
complaint handling procedures to obtain a written departmental
determination by complaining to the department within forty-five days
after receipt of the utility's determination. In the event that the
utility fails to provide a determination on a complaint under this
section within the required time period, the department shall
investigate, upon the shared meter customer's or owner's request, and
issue a written determination. The commission or its designee shall have
the authority to apportion estimated charges for service measured by a
shared meter among the owner, shared meter customer and any third party.

5. Change in billing. Notwithstanding any inconsistent provision of
law, one hundred twenty days after notice is sent to the owner that the
utility or the department has made a final determination that the shared
meter customer's dwelling is served by a shared meter in violation of
subdivision two of this section:

(a) the utility shall verify that, pursuant to subdivision two of this
section, the owner has eliminated the shared meter condition or has
entered into a mutually acceptable written agreement with the shared
meter customer and where applicable, a third party, for apportioning the
charges for service measured by the shared meter and has provided a copy
to the utility, or, as an alternative to eliminating the shared meter
condition, has established a separate account in the owner's name as the
customer of record for all applicable shared area charges and all future
service measured by the shared meter;

(b) if the owner has not eliminated the shared meter or entered into
such agreement or established such account or if the amount of the
service is not minimal under commission rules adopted pursuant to
subdivision eight of this section, the utility shall establish an
account in the owner's name as the customer of record for service
measured through the shared meter and bill the owner for all applicable
shared area charges and all future service measured through the shared
meter; provided, however, that the commission or its designee may grant
an extension not to exceed ninety days to an owner if, in its judgment,
extenuating circumstances beyond an owner's control prevented timely
compliance, or such shared meter is the subject of an ongoing department
review regarding the apportionment of estimated charges pursuant to
subparagraph (ii) of paragraph (c) of subdivision two of this section;

(c) the utility shall refund to the customer or cancel shared area
charges; provided, however, that when third party involvement exists,
the utility shall credit the shared meter customer for all the estimated
charges of the third party;

(d) when such determination follows a customer complaint regarding a
shared meter condition or a utility discovery of a shared meter
condition that is not in response to an owner's request for a utility
inspection for a shared meter condition, with respect to utility service
billed after December first, nineteen hundred ninety-six, the utility
shall comply with the provisions of paragraphs (a), (b) and (c) of this
subdivision, and further bill the owner and refund to the shared meter
customer an estimated amount of charges for twelve months of all service
measured by the shared meter; provided, however, that this paragraph
shall not apply to a shared meter condition if service measured through
the shared meter is minimal under commission rules adopted pursuant to
subdivision eight of this section. An owner so billed may petition the
commission or its designee for a determination that the amount of such
bill is excessive and that such bill and refund be adjusted accordingly;
provided, however, neither the adjusted bill nor the adjusted refund
shall be less than twenty-five percent of the total amount of the
original bill. The commission is authorized to make such a determination
and adjustment if it finds that a bill and refund of twelve months'
charges is unduly burdensome and unfair. In making such determination
the commission or its designee shall consider the total amount of the
bill and refund in relation to the shared area charges over such twelve
month period and any other equitable factors established by the
commission; and

(e) the utility shall bill the third party, when third party
involvement exists, instead of the owner, for the applicable estimated
charges for service used by the third party credited by the utility to
the shared meter customer.

6. Refunded and cancelled utility charges. (a) No owner may bill a
shared meter customer or otherwise recover from such customer any
portion of the cancelled charges or charges refunded to such customer
and shall not bill such customer for any portion or percentage of any
future shared meter bills in the owner's name; provided, however, that
this section shall not preclude an owner from increasing future rents by
a specific sum to the extent otherwise permitted by law.

(b) A shared meter customer who receives a refund from a utility
pursuant to this section shall return a proportional share of that
refund to each person who had paid that shared meter customer for
utility service associated with the payment so refunded. The utility
shall be held harmless from the claim of any person for a share of any
payment so refunded.

7. Remedies. Where the owner or shared meter customer demonstrates the
existence of third party involvement, the owner or shared meter customer
shall be entitled respectively to recover the charges billed by the
utility to the owner's account, or to the shared meter customer's
account, pursuant to this section in a civil action against the third
party in a court of competent jurisdiction.

8. Minimal service. Notwithstanding any provision of this section to
the contrary, the commission shall determine an appropriate quantity of
service on a shared meter that is utilized outside of the shared meter
customer's dwelling which is to be considered minimal in commission
rules and regulations.

9. Notice requirements. On or before December first, nineteen hundred
ninety-five, every utility shall notify its residential customers and
each owner served by the utility of the requirements of this section.
Each utility may request from its customers the names and addresses of
the owners or recipients of rent for dwellings occupied by the customers
or obtain such names and addresses from any available public records in
order to provide the notice required by this subdivision. Such notice
shall be mailed in a postpaid wrapper under separate cover than bills
for service to the premises. Every utility shall also provide notice at
least annually to owners of dwellings, to the extent practicable, under
a plan submitted by the utility and approved by the department. Every
utility shall also implement an outreach program subsequent to such
written notice. Each utility shall submit a plan to provide notice
within sixty days of the effective date of this subdivision. In
addition, every utility shall notify each of its customers at least
annually, of the requirements that apply to owners, shared meter
customers and utilities pursuant to this section and shall include the
department's address and phone number for questions and complaints. In
addition, each utility may arrange for the publication of notices in
newspapers or the broadcasting in other media of notices describing such
requirements. The notices shall be subject to the approval of the
department.

10. Treatment of refunds. (a) Where, as of the effective date of this
subdivision, an owner of a building consisting of one to five dwelling
units has been billed for service measured through a shared meter
without an apportionment of charges for service used by the shared meter
customer and, where applicable, a third party, the utility shall refund
to the owner, upon the written request of the owner, any charges which
represent service used in the shared meter customer's dwelling and,
where applicable, a third party. Such written request must be submitted
no later than December first, nineteen hundred ninety-seven, provided
that an owner may petition the commission or its designee for an
extension upon a finding that such owner has not received timely or
adequate notice of the availability of such refund. In any case where an
owner has been billed but has not paid for such service, the utility
shall only collect from the owner shared area charges. The utility shall
not attempt to charge the shared meter customer or the third party for
any monies refunded to the owner pursuant to this section.

(b) In any case where a shared meter customer is entitled, following a
final determination of shared meter condition prior to the effective
date of this subdivision, to a refund but has not received such refund
because the owner has not made payments for which the owner was billed,
such shared meter customer shall receive his or her refund from the
utility.

(c) Notwithstanding any other provision of this section, in the case
where a shared meter customer is entitled, following a final
determination of a shared meter condition, to a refund or cancellation
of shared meter charges and title to the dwelling has been transferred
to a new owner, such shared meter customer shall receive his or her
refund from the utility for charges for service measured through a
shared meter, excluding the estimated charges for service used in the
shared meter customer's dwelling, for the period of time effective six
years prior to the discovery of or determination that a shared meter
condition exists, or the first day of the tenancy, or the date the
shared meter condition began, whichever is most recent in time.

(d) The commission shall investigate whether and to what extent
refunds provided pursuant to this subdivision were made necessary by
inadequate notice to customers regarding the provisions of this section.

11. Other relief. Notwithstanding any other provision of this section,
the rights of a utility customer under this article to seek and obtain
relief for payments made for service not provided to his or her dwelling
shall not be diminished in any manner. Unless otherwise specified in
this section, the rights of a utility to collect payment for service
rendered but unpaid shall not be diminished in any manner.

12. Apportionment. The commission shall establish guidelines for
estimating the amount of utility use in other space outside the shared
meter customer's dwelling and for apportioning costs required by this
section.