B-140917, NOVEMBER 30, 1959, 39 COMP. GEN 401

B-140917: Nov 30, 1959

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MILITARY PERSONNEL - QUARTERS ALLOWANCE - SUBLEASING TO OTHER MILITARY PERSONNEL DEFENSE HOUSING UNITS WHICH ARE OCCUPIED BY MILITARY AND CIVILIAN PERSONNEL ON A RENTAL BASIS PURSUANT TO THE AUTHORITY IN THE LANHAM ACT OF OCTOBER 14. MAY BE SUBLET TO MILITARY PERSONNEL ON A RENTAL BASIS DURING PERIODS OF TEMPORARY ABSENCE AND THE DETERMINATION OF THE AMOUNT OF RENT UNDER THE SUBLEASE IS A MATTER BETWEEN THE PARTIES. A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO RECEIVE A QUARTERS ALLOWANCE WHILE OCCUPYING DEFENSE HOUSING FACILITIES ON A RENTAL BASIS MAY SUBLET THE QUARTERS TO ANOTHER MEMBER OF THE UNIFORMED SERVICES AND WHETHER OR NOT THE SUBLESSEE PAYS ANY RENTAL CHARGE. THE OCCUPANCY BY MEMBERS OF THE UNIFORMED SERVICES ON A RENTAL BASIS OF QUARTERS WHICH ARE CLASSIFIED AS INADEQUATE UNDER SECTION 407 (A) OF THE ACT OF AUGUST 30.

B-140917, NOVEMBER 30, 1959, 39 COMP. GEN 401

MILITARY PERSONNEL - QUARTERS ALLOWANCE - SUBLEASING TO OTHER MILITARY PERSONNEL DEFENSE HOUSING UNITS WHICH ARE OCCUPIED BY MILITARY AND CIVILIAN PERSONNEL ON A RENTAL BASIS PURSUANT TO THE AUTHORITY IN THE LANHAM ACT OF OCTOBER 14, 1940, 42 U.S.C. 1521, ET SEQ., MAY BE SUBLET TO MILITARY PERSONNEL ON A RENTAL BASIS DURING PERIODS OF TEMPORARY ABSENCE AND THE DETERMINATION OF THE AMOUNT OF RENT UNDER THE SUBLEASE IS A MATTER BETWEEN THE PARTIES, THERE BEING NO PRIVITY BETWEEN THE SUBLEASE AND THE GOVERNMENT AS ORIGINAL LESSOR. A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO RECEIVE A QUARTERS ALLOWANCE WHILE OCCUPYING DEFENSE HOUSING FACILITIES ON A RENTAL BASIS MAY SUBLET THE QUARTERS TO ANOTHER MEMBER OF THE UNIFORMED SERVICES AND WHETHER OR NOT THE SUBLESSEE PAYS ANY RENTAL CHARGE, THE MEMBERS (LESSOR AND SUBLESSEE) WOULD NOT LOSE THEIR RIGHT TO THE QUARTERS ALLOWANCE. THE OCCUPANCY BY MEMBERS OF THE UNIFORMED SERVICES ON A RENTAL BASIS OF QUARTERS WHICH ARE CLASSIFIED AS INADEQUATE UNDER SECTION 407 (A) OF THE ACT OF AUGUST 30, 1957, 42 U.S.C. 1594J (A), GIVES RISE TO A LANDLORD AND TENANT RELATIONSHIP BETWEEN THE GOVERNMENT AND THE LESSOR SO THAT THE LESSOR COULD SUBLET THE QUARTERS TO ANOTHER MEMBER OF THE UNIFORMED SERVICES ON A RENTAL BASIS WITHOUT LOSS OF THE QUARTERS ALLOWANCE.

TO THE SECRETARY OF DEFENSE, NOVEMBER 30, 1959:

REFERENCE IS MADE TO LETTER OF OCTOBER 1, 1959, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS INVOLVING THE SUBLETTING OF RENTAL QUARTERS BY MILITARY AND CIVILIAN OCCUPANTS DURING PERIOD OF TEMPORARY ABSENCE, TOGETHER WITH RELATED QUESTIONS INVOLVING ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS. THE QUESTIONS FOR DECISION ARE SET FORTH IN COMMITTEE ACTION NO. 251, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY MILITARY AND CIVILIAN OCCUPANTS SUBLET QUARTERS CURRENTLY ADMINISTERED AS RENTAL HOUSING ( LANHAM ACT ETC), TO MILITARY PERSONNEL DURING PERIODS OF TEMPORARY ABSENCE?

2. IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE MUST THE RENTAL CHARGE UNDER THE SUBLEASE (EXCLUSIVE OF RENTAL FOR PERSONALLY OWNED FURNITURE) NOT EXCEED THE RENTAL PAID BY THE SUBLESSOR TO THE GOVERNMENT?

3. IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE WOULD BOTH THE MILITARY SUBLESSOR AND SUBLESSEE BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHETHER OR NOT THEY PAY A RENTAL CHARGE?

4. WOULD THE ANSWERS BE THE SAME IN THE CASE OF PUBLIC QUARTERS PRESENTLY BEING OCCUPIED ON A RENTAL BASIS HAVING BEEN CLASSIFIED AS " INADEQUATE QUARTERS" UNDER THE AUTHORITY CONTAINED IN SECTION 407 OF THE ACT OF 30 AUGUST 1957 (71 STAT. 556/?

UNDER AUTHORITY OF THE LANHAM ACT OF OCTOBER 14, 1940, 54 STAT. 1125, AS AMENDED, 42 U.S.C. 1521, ET SEQ., CERTAIN MEMBERS OF THE ARMED FORCES AND CIVILIAN EMPLOYEES IN THE DEFENSE DEPARTMENT ASSIGNED TO DUTY AT NAVAL OR MILITARY RESERVATIONS, POSTS OR BASES MAY BE ASSIGNED DEFENSE HOUSING UNITS ON A RENTAL BASIS, BY THE HOUSING AND HOME FINANCE ADMINISTRATOR OR, ON PROJECTS TRANSFERRED TO THE JURISDICTION OF THE ARMY, AIR FORCE, OR NAVY DEPARTMENTS, BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED. PURSUANT TO THE ACT OF JULY 2, 1945, 59 STAT. 316, 37 U.S.C. 111A, PERSONNEL OF THE ARMED FORCES MAY OCCUPY ON A RENTAL BASIS ANY HOUSING FACILITIES OTHER THAN PUBLIC QUARTERS CONSTRUCTED FOR ASSIGNMENT TO AND OCCUPANCY WITHOUT CHARGE BY SUCH PERSONNEL, AND THEY ARE NOT TO BE DEPRIVED BY REASON OF SUCH OCCUPANCY OF THE MONEY ALLOWANCES TO WHICH THEY WOULD OTHERWISE BE ENTITLED FOR RENTAL OF QUARTERS.

WE HELD IN 35 COMP. GEN. 596, 599, THAT, WHERE CIVILIAN RENTAL HOUSING IS ASSIGNED TO A CIVILIAN EMPLOYEE ON A RENTAL BASIS, SUCH QUARTERS CONSTITUTED THE EMPLOYEE'S HOME, AND IN THE ABSENCE OF A STATUTE OR REGULATION TO THE CONTRARY, THE EMPLOYEE IS FREE TO SHARE THE QUARTERS WITH OTHERS OR TO PERMIT THEIR OCCUPANCY BY OTHERS WHILE HE IS ON LEAVE OF ABSENCE, AS HE SEES FIT. NO OBJECTION WAS SEEN TO THE TEMPORARY RENTAL OF SUCH QUARTERS TO AN OFFICER OF THE ARMED FORCES. THIS IS EQUALLY TRUE WHERE A MEMBER OF THE ARMED FORCES IS OCCUPYING A DEFENSE HOUSING UNIT ON A RENTAL BASIS. QUESTION NO. 1 IS THEREFORE ANSWERED IN THE AFFIRMATIVE.

"THE RELATION CREATED BY A SUBLEASE BEING FOR ALL GENERAL PURPOSES THE ORDINARY RELATION OF LANDLORD AND TENANT, THE RIGHTS, DUTIES, AND LIABILITIES AS BETWEEN SUBLESSOR AND SUBLESSEE ARE DETERMINED BY THE GENERAL RULES GOVERNING THE RIGHTS, DUTIES, AND LIABILITIES AS BETWEEN LANDLORD AND TENANT * * *.' 32 AM. JUR. 414. "BETWEEN A SUBLESSEE AND THE ORIGINAL LESSOR THERE IS NO PRIVITY EITHER OF CONTRACT OR OF ESTATE.' 32 AM. JUR. 423. IT FOLLOWS THAT THE AMOUNT OF RENT TO BE CHARGED UNDER A SUBLEASE IS A MATTER FOR AGREEMENT BETWEEN THE PARTIES TO THE SUBLEASE, THE AMOUNT OF RENT BEING PAID TO THE ORIGINAL LESSOR, A STRANGER TO THAT AGREEMENT, BEING IMMATERIAL. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3 REFERS TO "THE MILITARY SUBLESSOR.' WITHIN THE FRAMEWORK OF THE PRESENT SUBMISSION A MILITARY SUBLESSOR IS AN OCCUPANT OF GOVERNMENT QUARTERS ON A RENTAL BASIS WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. QUESTION 3 IS ANSWERED ON THE ASSUMPTION THAT IT PERTAINS ONLY TO THE "SUBLESSEE," THE INDIVIDUAL TEMPORARILY OCCUPYING, WITH THE REGULAR OCCUPANT'S PERMISSION, QUARTERS RENTED BY THE LATTER FROM THE GOVERNMENT.

ON THE ABOVE ASSUMPTION A RELATIONSHIP OF LANDLORD AND TENANT EXISTS BETWEEN THE GOVERNMENT AND THE REGULAR OCCUPANT, AND THE LATTER MAY IMPOSE A RENTAL CHARGE UPON A TEMPORARY OCCUPANT OF HIS LEASED QUARTERS OR PERMIT SUCH TEMPORARY OCCUPANCY WITHOUT CHARGE, AS HE SEES FIT. THE SITUATION HERE IS NOT COMPARABLE TO THAT CONSIDERED IN 35 COMP. GEN. 362, WHERE QUARTERS WERE FURNISHED AN EMPLOYEE, NOT ON A RENTAL BASIS, BUT AS AN INCIDENT OF A MASTER AND SERVANT RELATIONSHIP.

QUESTION 3 IS ANSWERED BY SAYING THAT WHETHER OR NOT THE "SUBLESSEE" PAYS ANY RENTAL CHARGE FOR HIS TEMPORARY OCCUPANCY IS NOT MATERIAL. UNDER EITHER ALTERNATIVE HE WOULD NOT LOSE THE RIGHT TO ANY BASIC ALLOWANCE FOR QUARTERS TO WHICH HE OTHERWISE WOULD BE ENTITLED.

SUBSECTION 407 (A) OF THE ACT OF AUGUST 30, 1957, 71 STAT. 556, 42 U.S.C. 1594J (A), PROVIDES THAT:

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, MEMBERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WITH DEPENDENTS, MAY OCCUPY ON A RENTAL BASIS, WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS, INADEQUATE QUARTERS UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, NOTWITHSTANDING THAT SUCH QUARTERS HAVE BEEN CONSTRUCTED OR CONVERTED FOR ASSIGNMENT AS PUBLIC QUARTERS. THE NET DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS AND THE FAIR RENTAL VALUE OF SUCH QUARTERS SHALL BE PAID FROM OTHERWISE AVAILABLE APPROPRIATIONS.

SUBSECTION 407 (C), 42 U.S.C. 1594J (C), PROVIDES THAT THE SECRETARY OF EACH OF THE DEPARTMENTS CONCERNED IS AUTHORIZED, SUBJECT TO STANDARDS ESTABLISHED PURSUANT TO REGULATIONS APPROVED BY THE PRESIDENT, TO DESIGNATE AS RENTAL HOUSING SUCH HOUSING AS HE MAY DETERMINE TO BE INADEQUATE AS PUBLIC QUARTERS. SUBSECTION 407 (E), 71 STAT. 557, 42 U.S.C. 1594J (E), PROVIDES THAT:

ALL HOUSING UNITS DETERMINED PURSUANT TO SUBSECTION (C) OF THIS SECTION TO BE INADEQUATE SHALL, PRIOR TO JULY 1, 1960, EITHER BE ALTERED OR IMPROVED SO AS TO QUALIFY AS PUBLIC QUARTERS, OR BE DEMOLISHED OR OTHERWISE DISPOSED OF.

DESPITE THE FACT THAT OCCUPANCY OF INADEQUATE QUARTERS ON A RENTAL BASIS AS AUTHORIZED BY SUBSECTION 407 (A) IS NECESSARILY ON A TEMPORARY BASIS--- SEE SUBSECTION 407 (E/--- SUCH OCCUPANCY DURING THE TERM OF ITS EXISTENCE GIVES RISE TO A LANDLORD AND TENANT RELATIONSHIP BETWEEN THE GOVERNMENT AND THE LESSOR.