B-172947, JUL 13, 1971

B-172947, JUL 13, 1971

CIVILIAN EMPLOYEE - REAL ESTATE EXPENSES - LEAVE TERMINATION DECISION ALLOWING THE CLAIM BY HARRY W. JOSLIN IN THE AMOUNT OF $151 REPRESENTING CHARGES FOR SETTLING AN UNEXPIRED LEASE INCIDENT TO A CHANGE OF OFFICIAL STATION. IN THE ABSENCE OF A LIQUIDATED DAMAGE PROVISION IN THE LEASE, IN MARYLAND THE TENANT IS LIABLE FOR THE FULL RENT UNLESS THE PROPERTY IS RELET THEREBY REDUCING THE AMOUNT DUE. THE PROVISIONS OF OMB CIR. NO. A-56, SECTION 4.2(F) ARE THUS SATISFIED AND THE CLAIM FOR $151 (APPROXIMATELY 1/2 MONTH'S RENT PLUS $50 REDECORATING COSTS) MAY BE ALLOWED.

TO MR. F. C. FENTON:

THIS REFERS TO YOUR LETTER OF APRIL 26, 1971, AD:FFV, WITH ENCLOSURES, REQUESTING A DECISION FROM OUR OFFICE WHETHER THE ENCLOSED RECLAIM VOUCHER IN THE AMOUNT OF $160.12 IN FAVOR OF MR. HARRY W. JOSLIN REPRESENTING REIMBURSEMENT FOR EXPENSES OF A REAL ESTATE TRANSACTION INCIDENT TO A PERMANENT CHANGE OF STATION MAY BE CERTIFIED FOR PAYMENT. YOU HAVE DOUBT CONCERNING THE PAYMENT OF $151 REPRESENTING CHARGES FOR SETTLING AN UNEXPIRED LEASE.

BY TRAVEL AUTHORIZATION DATED AUGUST 26, 1970, MR. JOSLIN WAS TRANSFERRED FROM WASHINGTON, D.C., TO PHOENIX, ARIZONA. MR. JOSLIN HAD ENTERED INTO A LEASE FOR THE RENTAL OF AN APARTMENT COVERING THE PERIOD MAY 1, 1970, TO APRIL 30, 1971, AT AN ANNUAL RENTAL OF $2,424 ($202 PER MONTH) PAYABLE MONTHLY IN ADVANCE AND IT CONTAINED NO PROVISION FOR TERMINATION. AUGUST 20, 1970, AFTER LEARNING OF THE TRANSFER MR. JOSLIN NOTIFIED THE MANAGER OF THE APARTMENT LOCATED IN BALTIMORE, MARYLAND, OF HIS INTENTION TO MOVE. HE VACATED THE APARTMENT ON SEPTEMBER 3, 1970.

MR. JOSLIN'S STATEMENT IN SUPPORT OF HIS CLAIM INDICATES THAT INITIALLY THE MANAGER OF THE APARTMENT REFUSED TO PERMIT TERMINATION OF THE LEASE EXCEPT BY PAYMENT OF A PENALTY EQUAL TO ONE MONTH'S RENT PLUS 10 PERCENT OF THE RENT PAYABLE DURING THE REMAINING LEASE TERM (8 MONTHS AT $202) OR $282.80. LATER THE MANAGER AGREED TO ACCEPT A SUBLESSEE ON PAYMENT OF A $50 PENALTY PLUS RENT TO THE DATE THE SUBLESSEE COMMENCED TO OCCUPY THE APARTMENT, TOGETHER WITH ASSURANCE THAT MR. JOSLIN WOULD MAKE GOOD ANY DEFAULT ON THE PART OF THE LESSEE. MR. JOSLIN PLACED A CLASSIFIED AD FOR A SUBLESSEE ON AUGUST 20, 1970, IN ACCORDANCE WITH THE MANAGER'S SECOND ORAL AGREEMENT.

SUBSEQUENTLY THE MANAGER ADVISED THAT HE WOULD CANCEL THE LEASE IF A NEW TENANT WAS FOUND WILLING TO ENTER INTO A NEW FULL TERM LEASE AT A HIGHER RENT AND UPON PAYMENT BY MR. JOSLIN OF A $50 PENALTY PLUS RENT TO THE DATE A LEASE WITH THE NEW TENANT BEGAN. THEREAFTER, ON OR ABOUT AUGUST 31, 1970, THE MANAGER FURTHER ADVISED THAT HE HAD NEGOTIATED A LEASE WITH ANOTHER TENANT BEGINNING SEPTEMBER 15, 1970, AND THAT MR. JOSLIN WOULD BE PERMITTED TO VACATE THE PREMISES UPON PAYMENT OF $151 (APPROXIMATELY 1/2 MONTH'S RENT PLUS $50).

UNDER SECTION 4.2F OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56 AN EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED FOR SETTLING AND UNEXPIRED LEASE WHEN:

" *** (1) THE TERMS OF THE LEASE PROVIDE FOR PAYMENT OF SUCH EXPENSES, (2) SUCH COSTS CANNOT BE AVOIDED BY SUBLEASING OR OTHER ARRANGEMENTS, AND (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE COST BY FAILING TO GIVE TIMELY NOTICE OF INTENT TO MOVE PROMPTLY AFTER HE HAS KNOWLEDGE OF THE TRANSFER TO A NEW OFFICIAL STATION."

THE PRESENT RECORD CONTAINS SUFFICIENT EVIDENCE TO SHOW THAT CONDITIONS 2 AND 3 OF SECTION 4.2F HAVE BEEN SATISFIED WITH RESPECT TO THE CLAIMANT'S LEASE. 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 MARYLAND 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.

IN THIS CASE WE ASSUME THE $50 IN ADDITION TO THE 1/2 MONTH'S RENT REPRESENTS EXPENSES OF THE LANDLORD FOR REDECORATING WHICH APPEARS REASONABLE. UNDER THE CIRCUMSTANCES THE $151 MAY BE REGARDED AS TANTAMOUNT TO A PAYMENT PROVIDED FOR BY THE TERMS OF THE LEASE.

THE VOUCHER WHICH IS RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.