Mary Beth Beckman-Najera-Mobile Home Sale-Broker's Fee

Matter of: Mary Beth Beckman-Najera-Mobile Home Sale-Broker's Fee File: B-258930 Date: September 19, 1995

If a mobile home used as a residence at the old duty station is sold separately from the land upon which it is located, a transferred employee may be reimbursed a fee or commission paid for the sale even if the broker or salesperson is not licensed to sell real estate. Burrell M. Baxter, B-190979, July 7, 1978, clarified. However, the applicable state law must be examined to determine if a license is required to sell a mobile home for another. A transferred employee, who used a mobile home as her residence at her old duty station in Arizona, authorized another individual to sell it for her, and claimed reimbursement for the fee paid as a residence sales expense. Under Arizona law, an individual who sells a mobile home for another, separately from real estate, is required to be licensed as a used house trailer or motor vehicle dealer. Unless the employee shows that the individual who sold the mobile home for her was so licensed in the State of Arizona, the claim may not be allowed.

DECISION

Ms. Mary Beth Beckman-Najera, an employee of the Forest Service stationed in Bellemont, Arizona, was transferred to Idyllwild, California, and reported for duty at her new station on May 20, 1991. Her residence in the vicinity of her old duty station was a mobile home located on a leased space in a trailer park. On May 10, 1991, the employee and her husband signed over title to the mobile home to another individual so that he
could sell it for them. The agreement was that the individual would
receive a commission of 10 percent of the selling price, plus expenses.
The mobile home was sold in August 1991 for $7,000 and Ms. Beckman-Najera
is claiming reimbursement for $710 representing the amount paid to the
agent as commission and expenses. The Forest Service did not approve her
claim because Arizona law requires that all real estate brokers or
salespersons be licensed and the individual who sold the mobile home for
her did not possess a real estate license.

The statutory authority for reimbursing residence sales expenses incident
to a transfer is contained in 5 U.S.C. Sec. 5724a(a)(4) (1988), and the
implementing regulations are found in the Federal Travel Regulation (FTR),
Part 302-6. [2] The provision which governs residence purchase or sale
transactions, includes a mobile home as a residence for this purpose. [3]
The term "mobile home" is defined in FTR section 302-1.4(i) to mean "any
type of house trailer or mobile dwelling constructed for use as a
residence and designed to be moved overland, either by self-propulsion or
towing." [4] Section 302-6.2(a) of the FTR [5] states that a "broker's
fee or real estate commission paid by the employee for services in selling
his/her residence is reimbursable. . . ." The issue, therefore, is
whether such a fee or commission may be reimbursed if the broker or
salesperson is not licensed to sell real estate.

Since the FTR provides that a mobile home is a residence for purposes of
reimbursement of expenses incurred in residence transactions by
transferred employees, it seems plain that the term "broker's fee" in FTR
section 302-6.2(a) includes a broker's fee paid for the sale of a mobile
home. However, in our decision Burrel M. Baxter, B-190979, July 7, 1978,
citing to earlier decisions of this Office, we stated the rule that
"claims incident to the sale of a mobile home are generally subject to the
same requirements that apply to the sale of a stationary home or
residence." [6] One such requirement is that, where the law of a
jurisdiction requires a real estate license to sell stationary residences
for others, the fee or commission paid by the employee may be allowed only
if the individual acting as salesperson or broker is licensed to sell real
estate. [7] Therefore, a literal application of the Baxter rule would
require denial of a fee paid to sell a mobile home unless the agent had a
real estate license. This is the reason given by the Forest Service for
disapproving the fee paid by the employee in the present case.

A literal application fails to consider that a mobile home is not real
estate and, therefore, that a real estate license normally is not required
to sell a mobile home. [8] To eliminate any doubt, we point out that
Baxter cites 49 Comp.Gen. 15 (1969) which allows payment of a broker's
fee for the sale of a mobile home, without imposing any requirement that
the broker be licensed to sell real estate. [9]

Accordingly, we will not apply Baxter literally to a mobile home sale. If
a mobile home residence is sold separately from the land upon which it is
located, an employee may be reimbursed the fee or commission paid for the
sale without any requirement that the broker or salesperson be licensed to
sell real estate. The Baxter rule is clarified to that extent. In our
opinion, FTR section 302-6.2(a) was not intended to preclude reimbursement
of a commission paid for the sale of a mobile home to a person who is not
licensed to sell real estate. However, the law of the state where the
mobile home is located must be examined to determine if a license is
required to sell a mobile home for another.

In the present case, Arizona law provides that a person who engages in
selling used house trailers or used motor vehicles on behalf of another
for which a fee is charged is required to be licensed. [10] Thus, if the
individual who sold the mobile home for Ms. Beckman-Najera was licensed to
sell used house trailers, she may be reimbursed the fee paid. [11] Absent
such a license, she may not be reimbursed.

1. Natividad Taitano, AOB, Acting Branch Chief, Pacific Southwest Region, San Francisco, California.

2. 41 C.F.R. Part 302-6 (1994).

3. 41 C.F.R. Sec. 302-6.1(b) (1994).

4. 41 C.F.R. Sec. 302-1.4(i) (1994).

5. 41 C.F.R. Sec. 302-6.2(a) (1994).

6. See also Katherine I. Tang, 65 Comp.Gen. 749 (1986), at 753.

7. John F. Curley, B-190107, Feb. 8, 1978; Mathew Biondich, B-197893, June 4, 1980; and Paul A. Pradia, B-219501, Jan. 13, 1986. See also Steve Alarid, B-257518, Nov. 15, 1994.

8. Ariz. Rev. Stat. Ann. Sec. 32-2122 (1989- effective April 1, 1990). The exception is the sale of a lot with a house trailer affixed and sold as a package which requires a real estate license. Op. Atty. Gen. [Arizona] No. 70-17, cited as a note to Ariz. Rev. Stat. Ann. Sec. 28-1301.

9. See also B-175285, July 9, 1973.

10. Ariz. Rev. Stat. Ann. 28-1301, and 28-1304.

11. Under FTR Sec. 302-6.2(a), the amount reimbursed may not be in excess of rates generally charged by brokers in the locality. Also, under FTR Sec. 302-6.2(g)(1), the total amount of reimbursement may not exceed 10 percent of the actual sale price ($7,000), or $700.