B-167950, OCT. 1, 1969

B-167950: Oct 1, 1969

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WHERE EMPLOYEE WAS REIMBURSED ON BASIS OF 6 PERCENT RESIDENTIAL PROPERTY COMMISSION INSTEAD OF 10 PERCENT COMMERCIAL PROPERTY COMMISSION HE WAS REQUIRED TO PAY. IS ALLOWED. AS EMPLOYEE PURCHASED HOUSE FOR HIS RESIDENCE AT TIME IT WAS ZONED RESIDENTIAL AND LIVED THERE UNTIL HIS TRANSFER. FACT THAT IT WAS ZONED COMMERCIAL SUBSEQUENT TO HIS PURCHASE WOULD NOT AFFECT HIS RIGHTS UNDER 5 U.S.C. 5724(A) (4) AND BUREAU OF BUDGET CIR. ABOUT SEVENTEEN YEARS AGO THE PROPERTY IN CONJUNCTION WITH OTHER LOTS IN THE VICINITY WAS ZONED COMMERCIAL. THE PROPERTY WAS USED AS A RESIDENCE. AT THE TIME THE PROPERTY WAS PLACED WITH A REALTOR TO SELL. ATKINSON WAS INFORMED THAT THE COMMISSION ON THE SALE WOULD BE 10 PERCENT OF THE SELLING PRICE WHICH WAS IN LINE WITH CHARGES RECOMMENDED BY THE BOARD OF REALTORS IN NORTHERN VIRGINIA.

B-167950, OCT. 1, 1969

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--HOUSE SALE BROKER'S FEE REIMBURSEMENT OF ADDITIONAL REAL ESTATE COMMISSION ON SALE OF EMPLOYEE'S RESIDENCE INCIDENT TO PERMANENT CHANGE OF STATION, WHERE EMPLOYEE WAS REIMBURSED ON BASIS OF 6 PERCENT RESIDENTIAL PROPERTY COMMISSION INSTEAD OF 10 PERCENT COMMERCIAL PROPERTY COMMISSION HE WAS REQUIRED TO PAY, IS ALLOWED, AS EMPLOYEE PURCHASED HOUSE FOR HIS RESIDENCE AT TIME IT WAS ZONED RESIDENTIAL AND LIVED THERE UNTIL HIS TRANSFER; FACT THAT IT WAS ZONED COMMERCIAL SUBSEQUENT TO HIS PURCHASE WOULD NOT AFFECT HIS RIGHTS UNDER 5 U.S.C. 5724(A) (4) AND BUREAU OF BUDGET CIR. NO. A-56; AND BROKER'S FEE DID NOT EXCEED FEE NORMALLY CHARGED IN AREA FOR TYPE OF PROPERTY SOLD.

TO MR. GILBERT H. DAWSON:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 18, 1969, SERIAL: D5/1640F, WITH ENCLOSURES, CONCERNING REIMBURSEMENT OF AN ADDITIONAL REAL ESTATE COMMISSION ON THE SALE OF THE RESIDENCE OF MR. EDWARD E. ATKINSON, AN EMPLOYEE OF THE NATIONAL SECURITY AGENCY (NSA), INCIDENT TO A PERMANENT CHANGE OF STATION.

THE INFORMATION OF RECORD SHOWS THAT APPROXIMATELY EIGHTEEN YEARS AGO MR. ATKINSON PURCHASED A RESIDENCE IN ARLINGTON, VIRGINIA. ABOUT SEVENTEEN YEARS AGO THE PROPERTY IN CONJUNCTION WITH OTHER LOTS IN THE VICINITY WAS ZONED COMMERCIAL. DURING THE INTERVENING PERIOD OF TIME, THE PROPERTY WAS USED AS A RESIDENCE. THIS HAS BEEN CONFIRMED BY THE ZONING ADMINISTRATOR, OFFICE OF PLANNING OF ARLINGTON, VIRGINIA. AT THE TIME THE PROPERTY WAS PLACED WITH A REALTOR TO SELL, MR. ATKINSON WAS INFORMED THAT THE COMMISSION ON THE SALE WOULD BE 10 PERCENT OF THE SELLING PRICE WHICH WAS IN LINE WITH CHARGES RECOMMENDED BY THE BOARD OF REALTORS IN NORTHERN VIRGINIA. THE PREVAILING COMMISSIONS PAID TO REALTORS FOR THE SALE OF REAL PROPERTY IS 6 PERCENT ON THE SALE OF RESIDENTIAL PROPERTY AND 10 PERCENT ON THE SALE OF COMMERCIAL PROPERTY.

MR. ATKINSON SOLD HIS RESIDENCE FOR $45,000 AND WAS REIMBURSED ON THE BASIS OF 6 PERCENT COMMISSION ($2,700) INSTEAD OF THE 10 PERCENT COMMISSION ($4,500) HE WAS REQUIRED TO PAY. HE IS NOW CLAIMING THE DIFFERENCE OF $1,800. 5 U.S.C. 5724/A) (4) PROVIDES THAT "REIMBURSEMENT FOR BROKERAGE FEES ON THE SALE OF THE RESIDENCE * * * MAY NOT EXCEED THOSE CUSTOMARILY CHARGED IN THE LOCALITY WHERE THE RESIDENCE IS LOCATED.' SECTION 4.2A OF CIRCULAR NO. A-56 CONTAINS A SIMILAR RESTRICTION.

MR. ATKINSON PURCHASED THE HOUSE FOR HIS RESIDENCE AT THE TIME IT WAS ZONED RESIDENTIAL AND LIVED THERE UNTIL HIS TRANSFER. THE FACT THAT IT WAS ZONED COMMERCIAL SUBSEQUENT TO HIS PURCHASE WOULD NOT AFFECT HIS RIGHTS UNDER THE STATUTE AND REGULATIONS ISSUED PURSUANT THERETO. SINCE THE BROKER'S FEE DID NOT EXCEED THE FEE NORMALLY CHARGED IN THE AREA FOR THE TYPE OF PROPERTY SOLD THE CLAIM MAY BE ALLOWED, IF OTHERWISE PROPER. AS STATED IN YOUR LETTER REIMBURSEMENT OF EXPENSES FOR THE SALE OF THE RESIDENCE WOULD BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 4.2H OF CIRCULAR NO. A-56. THE ENCLOSURES ARE RETURNED HEREWITH.