B-175938, NOV 16, 1972

B-175938, NOV 16, 1972

CIVILIAN PERSONNEL - PROMPT LEASE TERMINATION NOTICE - HOUSE HUNTING TRIP DECISION ALLOWING IN PART THE CLAIM OF CAROLYN S. KIRK FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH HER TRANSFER OF OFFICIAL DUTY STATION FROM CHICAGO, ILL., TO PHILADELPHIA, PA., AS AN EMPLOYEE OF OEO. AN EMPLOYEE WHO IS OBLIGATED TO PAY RENT ON A LEASE UNTIL THE LANDLORD RELETS THE PROPERTY, MAY BE REIMBURSED FOR SUCH AMOUNTS PAID UNDER OMB CIRCULAR NO. A-56, SECTION 4.2F, PROVIDED THAT SHE HAS NOT CONTRIBUTED TO THE EXPENSE BY FAILING TO GIVE PROMPT APPROPRIATE LEASE TERMINATION NOTICE AFTER SHE HAS DEFINITE KNOWLEDGE OF HER TRANSFER. AMOUNTS PAID FOR TRANSFER OF THE LEASE ARE REIMBURSABLE UNDER SECTION 4.2F. ORAL AUTHORIZATION FOR A HOUSE HUNTING TRIP FROM AN AUTHORIZED OFFICIAL WHICH WAS LATER VALIDATED BY WRITTEN AUTHORIZATION MAY BE SUFFICIENT TO ALLOW THE REIMBURSEMENT OF EXPENSES INCIDENT TO SUCH TRIP. SEE B-170329, OCTOBER 19, 1970.

TO MS. ANNORA F. FRAASA:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1972, WITH ENCLOSURES, REQUESTING OUR ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT THE ENCLOSED RECLAIM VOUCHER IN THE AMOUNT OF $631.05 IN FAVOR OF MRS. CAROLYN S. KIRK REPRESENTING REIMBURSEMENT FOR EXPENSES INCURRED IN CONNECTION WITH HER TRANSFER AND CHANGE OF OFFICIAL DUTY STATION FROM CHICAGO, ILLINOIS, TO PHILADELPHIA, PENNSYLVANIA, AS AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY (OEO).

THE RECORD SHOWS THAT THE PERSONNEL OFFICER, OEO, REGION III, TELEPHONED MRS. KIRK ON DECEMBER 2, 1970, TO INFORM HER OF HER SELECTION FOR THE POSITION OF CHIEF, METRO OPERATIONS DIVISION, AND TO TENDER HER AN OFFER OF THAT POSITION WHICH INVOLVED A TRANSFER TO PHILADELPHIA. MRS. KIRK TELEPHONED THE PERSONNEL OFFICER IN REGION III ON DECEMBER 3 AND ACCEPTED THE OFFER. SHE ALSO INFORMED HIM THAT SHE WOULD GO TO PHILADELPHIA THE FOLLOWING WEEK TO LOOK FOR HOUSING AND VISIT THE REGIONAL OFFICE. THE RECORD FURTHER SHOWS THAT MRS. KIRK TRAVELED TO PHILADELPHIA ON DECEMBER 6, 1970, AND RETURNED TO CHICAGO ON DECEMBER 9, 1970. DURING THAT PERIOD, MRS. KIRK SPENT SOME TIME IN THE REGIONAL OFFICE DISCUSSING THE DETAILS OF HER MOVE FROM CHICAGO AND PRESUMABLY SURVEYED THE HOUSING SITUATION IN PHILADELPHIA. SHE SIGNED THE TRAVEL AND TRANSPORTATION EMPLOYMENT AGREEMENT, AS REQUIRED BY 5 U.S.C. 5724(I), ON DECEMBER 8, 1970, WHILE IN PHILADELPHIA. THE OFFICIAL TRAVEL ORDERS FOR THE TRANSFER OF MRS. KIRK WERE ISSUED ON DECEMBER 23, 1970, AND SHE REPORTED TO HER NEW DUTY STATION ON JANUARY 10, 1971.

THE RECLAIM VOUCHER SUBMITTED FOR OUR CONSIDERATION CONSISTS OF A CLAIM FOR $211.05 FOR A HOUSE HUNTING TRIP TO PHILADELPHIA, ADMINISTRATIVELY DISALLOWED ON THE ORIGINAL VOUCHER ON THE GROUND THAT SUCH TRIP WAS PERFORMED PRIOR TO THE ISSUANCE OF WRITTEN TRAVEL ORDERS, AND A CLAIM FOR $420 FOR SETTLEMENT EXPENSES INCIDENT TO TERMINATION OF HER LEASE FOR THE APARTMENT AT THE OLD STATION. THIS LATTER ITEM, ORIGINALLY CLAIMED IN THE AMOUNT OF $275, WAS ADMINISTRATIVELY DENIED AS A DOUBTFUL CLAIM.

THE LEASE TERMINATION EXPENSES AS CLAIMED ON THE RECLAIM VOUCHER ARE AS FOLLOWS:

RENT PAID FROM JANUARY 11 TO JANUARY 31 AT $7.25 A DAY - $145

RENT PAID FROM FEBRUARY 1 TO FEBRUARY 28 - 225

FEE FOR TRANSFER OF LEASE - 50

$420

IT APPEARS FROM THE RECORD WITH RESPECT TO THE LEASE THAT MRS. KIRK ENTERED INTO A LEASE AGREEMENT ON SEPTEMBER 14, 1967, FOR THE RENT OF AN APARTMENT WHICH WAS TO COMMENCE ON NOVEMBER 1, 1967, AND EXPIRE ON SEPTEMBER 30, 1969, AT A RENT OF $225 PER MONTH.

THE TERMS OF THE AGREEMENT PROVIDED IN PERTINENT SECTIONS AS FOLLOWS:

"7. *** IN THE EVENT THIS LEASE IS ASSIGNED WITH THE CONSENT OF THE LESSOR, THE LESSEE AGREES TO PAY TO THE LESSOR THE SUM OF $50.00 TO REIMBURSE THE LESSOR FOR THE CHARGES OF THE RENTAL AGENT IN CONNECTION WITH SUCH ASSIGNMENT. ***

"17. AT THE TERMINATION OF THIS LEASE *** NOTHING HEREIN SHALL AFFECT LESSOR'S RIGHT, AT ITS ELECTION, TO TREAT LESSEE AS A HOLDOVER TENANT UNDER THE TERMS HEREOF."

THE LEASE DID NOT CONTAIN A SPECIFIC PROVISION FOR LIQUIDATED DAMAGES IN THE EVENT OF AN EARLY TERMINATION.

ALTHOUGH THE RECORD IS SILENT WITH RESPECT THERETO, IT IS ASSUMED THE LEASE WAS EXTENDED OR THAT MRS. KIRK BECAME A HOLDOVER TENANT AND AS SUCH OBLIGATED FOR A NEW 2-YEAR PERIOD UNDER THE LEASE. UPON HER RETURN FROM PHILADELPHIA MRS. KIRK EXECUTED, ON DECEMBER 11, 1970, A FORM ENTITLED "AUTHORITY TO SUBLET FOR TENANT" IN WHICH SHE GAVE THE LESSOR NOTICE OF VACATING THE PREMISES AS OF FEBRUARY 1, 1971, AND AUTHORIZED THE LESSOR TO RENT HER APARTMENT AT $240 PER MONTH. AT THE SAME TIME, SHE FURTHER AGREED TO PAY $50 FOR TRANSFERRING THE LEASE ON SAID PREMISES FOR HER.

ON FEBRUARY 5, 1971, AN AGENT FOR THE LESSOR INFORMED MRS. KIRK AS FOLLOWS:

"PLEASE BE ADVISED THAT WE HAVE A SIGNED LEASE ON YOUR APARTMENT AS OF MARCH 1, 1971.

"THE DEPOSIT SECURITY PAID BY YOU DOES NOT COVER THE FEBRUARY RENTAL. RENTAL FOR THE LAST MONTH OF THE LEASE SHOULD BE PAID AS USUAL AND THE DEPOSIT SECURITY HELD BY US WILL BE REFUNDED TO YOU IN THE FORM OF A CHECK AFTER MARCH 1ST."

IT APPEARS FROM THE FOREGOING THAT THE APARTMENT WAS NOT IN FACT SUBLET PURSUANT TO THE AGREEMENT OF DECEMBER 11, 1970, NOR WAS IT ASSIGNED WITHIN PROVISIONS OF THE LEASE AUTHORIZING ASSIGNMENT. INSTEAD THE APARTMENT APPEARS TO HAVE BEEN RENTED UNDER A NEW LEASE INASMUCH AS FEBRUARY RENT WAS VIEWED AS THE LAST MONTH AND HER SECURITY DEPOSIT WAS TO BE REFUNDED AFTER MARCH 1.

SECTION 4.2F OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, PROVIDES FOR REIMBURSEMENT OF EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE ON RESIDENCE QUARTERS OCCUPIED BY THE EMPLOYEE AT THE OLD OFFICIAL STATION. IT PROVIDES FOR REIMBURSEMENT OF SUCH EXPENSES WHEN:

"*** (1) APPLICABLE LAWS OR THE TERMS OF THE LEASE PROVIDE FOR PAYMENT OF SETTLEMENT EXPENSES, (2) SUCH EXPENSES CANNOT BE AVOIDED BY SUBLEASE OR OTHER ARRANGEMENT, (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE EXPENSE BY FAILING TO GIVE APPROPRIATE LEASE TERMINATION NOTICE PROMPTLY AFTER HE HAS DEFINITE KNOWLEDGE OF THE PROPOSED TRANSFER AND (4) THE BROKER'S FEES OR ADVERTISING CHARGES ARE NOT IN EXCESS OF THOSE CUSTOMARILY CHARGED FOR COMPARABLE SERVICES IN THAT LOCALITY. ***"

THE FIRST CONDITION FOR REIMBURSEMENT OF EXPENSES INVOLVED IN THE SETTLEMENT OF AN UNEXPIRED LEASE AS CONTAINED IN SECTION 4.2F IS NOT INTERPRETED AS REQUIRING THAT THE TERMINATED LEASE CONTAIN A SPECIFIC PROVISION FOR LIQUIDATED DAMAGES IN CASE OF AN EARLY TERMINATION THEREOF. IN THE ABSENCE OF A LIQUIDATED DAMAGE PROVISION IN ILLINOIS AND IN MOST OTHER JURISDICTIONS THE TENANT IS LIABLE FOR THE FULL RENT AS PROVIDED IN THE LEASE UNLESS THE LANDLORD AT HIS DISCRETION RELETS THE PROPERTY FOR THE BENEFIT OF THE TENANT. IN THE EVENT OF RELETTING THE AMOUNT REALIZED THEREFROM BY THE LANDLORD (LESS ANY EXPENSES) REDUCES THE AMOUNT OF RENT DUE FROM THE TENANT WHO FAILED TO COMPLETE HIS LEASE. 52 C.J.S. LANDLORD AND TENANT SEC. 497, 498. THE RECORD CONTAINS SUFFICIENT EVIDENCE TO SHOW THAT CONDITION 2 OF SECTION 4.2F HAS BEEN SATISFIED.

AS TO CONDITION 3, SINCE THE EMPLOYEE DID NOT AUTHORIZE THE SUBLETTING UNTIL ON OR AFTER FEBRUARY 1, 1970, THAT PORTION OF THE CLAIM FOR RENT IN JANUARY, $145, MAY NOT BE ALLOWED. THE BALANCE, HOWEVER, $225 RENT FOR FEBRUARY AND $50 FOR TRANSFER OF THE LEASE MAY BE ALLOWED AS MEETING THE REQUIREMENTS OF SECTION 4.2F.

AS TO THE CLAIM OF $211.05 FOR THE HOUSE HUNTING TRIP, WE HAVE BEEN INFORMED BY LETTER DATED AUGUST 24, 1972, FROM OEO, REGION III, THAT THE PERSONNEL OFFICER WHO CALLED MRS. KIRK ON DECEMBER 2, 1970, TO TENDER THE OFFER OF THE NEW POSITION HAD A DELEGATED AUTHORITY FROM THE DEPUTY REGIONAL DIRECTOR ALSO TO AUTHORIZE A HOUSE HUNTING TRIP TO PHILADELPHIA. THE DEPUTY DIRECTOR WAS AUTHORIZED TO APPROVE TRAVEL AUTHORIZATIONS. SOMEWHAT SIMILAR CIRCUMSTANCES WE HAVE HELD THAT AN ORAL AUTHORIZATION FOR A HOUSE HUNTING TRIP WHICH IS LATER VALIDATED BY WRITTEN AUTHORIZATION BY A PERSON AUTHORIZED TO DO SO MAY BE REGARDED AS SUFFICIENT AUTHORIZATION FOR ENTITLEMENT TO REIMBURSEMENT FOR A HOUSE HUNTING TRIP. SEE B-170329, OCTOBER 19, 1970, COPY ENCLOSED.

UNDER THE CIRCUMSTANCES OF THIS CASE, THE CLAIM FOR EXPENSES INCIDENT TO THE HOUSE HUNTING TRIP MAY BE PAID IF OTHERWISE CORRECT.

THE RECLAIM VOUCHER IS RETURNED HEREWITH FOR FURTHER PROCESSING IN ACCORDANCE WITH THE ABOVE.