B-200167, JUL 7, 1981

B-200167, JUL 7, 1981

DIGEST: EMPLOYEE TRANSFERRED BETWEEN DUTY STATIONS IN CALIFORNIA REQUESTS REIMBURSEMENT OF A FINDER'S FEE IN LIEU OF A REAL ESTATE COMMISSION. RECORD SHOWS THAT SERVICES PERFORMED FOR EMPLOYEE WERE NOT THOSE OF A "FINDER" AS DEFINED BY CALIFORNIA LAW BUT WERE THOSE OF A CARETAKER. SINCE FTR PARA. 2-6.2D PRECLUDES REIMBURSEMENT FOR MAINTENANCE EXPENSES, CLAIM IS DENIED.

LELAND D. PEMBERTON:

BY A LETTER DATED AUGUST 26, 1980, MR. J. C. STENGLE, AN AUTHORIZED CERTIFYING OFFICER WITH THE DEPARTMENT OF AGRICULTURE'S NATIONAL FINANCE CENTER, REQUESTED AN ADVANCE DECISION ON THE RECLAIM VOUCHER OF MR. LELAND D. PEMBERTON FOR THE PAYMENT OF A FEE WHICH HE CHARACTERIZES AS A "FINDER'S FEE" IN CONNECTION WITH THE SALE OF HIS RESIDENCE. FOR THE REASONS STATED HEREIN THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.

THE RECORD SHOWS THAT MR. PEMBERTON, AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE WHOSE DUTY STATION WAS GRASS VALLEY, CALIFORNIA, RECEIVED A PERMANENT CHANGE OF DUTY STATION TO LEE VINING, CALIFORNIA. MR. PEMBERTON SOLD HIS RESIDENCE IN GRASS VALLEY WITHOUT THE AID OF A REAL ESTATE AGENT. HIS FORMER RESIDENCE REMAINED VACANT FROM THE TIME OF HIS TRANSFER IN AUGUST 1979 UNTIL ITS SALE IN NOVEMBER 1979. DURING THIS TIME MR. PEMBERTON PLACED ADS IN THE NEWSPAPER AND NEGOTIATED WITH PROSPECTIVE BUYERS. IN ADDITION, HE HIRED A FORMER NEIGHBOR, MATHILDA PRUDHOMME, "TO CARETAKE THE RESIDENCE BY MAINTAINING THE LANDSCAPING AND TO DETER VANDALISM AND MALICIOUS MISCHIEF, AND TO ANSWER INQUIRIES RESULTING FROM AN AD PLACED IN THE LOCAL NEWSPAPER AND SHOW THE RESIDENCE AND INTRODUCE POSSIBLE INTERESTED BUYERS TO MR. PEMBERTON." FOR THESE SERVICES MS. PRUDHOMME WAS PAID A FINDER'S FEE OF $795, ONE PER CENT OF THE SALES PRICE.

MR. PEMBERTON'S CLAIM FOR REIMBURSEMENT OF THE $795 FEE WAS DISALLOWED BY THE DEPARTMENT OF AGRICULTURE ON THE BASIS OF OUR DECISION JOHN F. CURLEY, B-190107, FEBRUARY 8, 1978. THAT DECISION HELD THAT AN EMPLOYEE MUST BE LEGALLY LIABLE UNDER APPLICABLE STATE LAW FOR A BROKER'S FEE OR REAL ESTATE COMMISSION IN ORDER TO BE ENTITLED TO REIMBURSEMENT UNDER PARA. 2- 6.2A OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7, MAY 1973).

TOGETHER WITH HIS RECLAIM VOUCHER MR. PEMBERTON HAS FURNISHED A LETTER FROM THE DEPARTMENT OF REAL ESTATE, STATE OF CALIFORNIA, INDICATING THAT THE SERVICES PERFORMED BY MS. PRUDHOMME WERE NOT REQUIRED TO BE PERFORMED BY A LICENSED BROKER AND, FURTHER, THAT PAYMENT OF A FINDER'S FEE IS LEGALLY ENFORCEABLE IN CALIFORNIA. AS INDICATED IN THAT LETTER THE CALIFORNIA COURTS HAVE HELD THAT ONE WHO SIMPLY FINDS AND INTRODUCES TWO PARTIES TO A REAL ESTATE TRANSACTION NEED NOT BE LICENSED AS A REAL ESTATE BROKER IN ORDER TO RECOVER A FINDER'S FEE. HOWEVER, THE FACTS OF THIS CASE DO NOT INDICATE THAT MS. PRUDHOMME'S ROLE WAS THAT OF A "FINDER" AS RECOGNIZED BY CALIFORNIA LAW. THE SUPREME COURT OF CALIFORNIA IN TYRONE V. KELLY, 507 P.2D 65 (1973) DEFINED A FINDER AS FOLLOWS:

"THE FINDER IS A PERSON WHOSE EMPLOYMENT IS LIMITED TO BRINGING THE PARTIES TOGETHER SO THAT THEY MAY NEGOTIATE THEIR OWN CONTRACT, AND THE DISTINCTION BETWEEN THE FINDER AND THE BROKER FREQUENTLY TURNS UPON WHETHER THE INTERMEDIARY HAS BEEN INVESTED WITH AUTHORITY OR DUTIES BEYOND MERELY BRINGING THE PARTIES TOGETHER, USUALLY THE AUTHORITY TO PARTICIPATE IN NEGOTIATIONS."

MS. PRUDHOMME DID NOT FIND ANY PROSPECTIVE BUYERS FOR MR. PEMBERTON. HER ROLE WAS MORE THAT OF A CARETAKER IN THAT SHE LOOKED AFTER THE PROPERTY AND SHOWED IT TO INTERESTED PARTIES. WHILE MS. PRUDHOMME MAY HAVE BEEN ENTITLED TO COMPENSATION FOR HER SERVICES, SHE DID NOT HAVE A LEGALLY ENFORCEABLE RIGHT TO A FINDER'S FEE. THEREFORE, IT IS UNNECESSARY TO DETERMINE WHETHER SUCH A FEE IS REIMBURSABLE AS A REAL ESTATE EXPENSE UNDER THE FEDERAL TRAVEL REGULATIONS.

REIMBURSEMENT OF THE TYPE OF SERVICE PERFORMED BY MS. PRUDHOMME - LOOKING AFTER THE PROPERTY - IS PRECLUDED. PARA. 2-6.2D OF THE FTR SPECIFICALLY DISALLOWS REIMBURSEMENT FOR MAINTENANCE. ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.