B-161320, APR. 12, 1968
Highlights
IN WHICH REIMBURSEMENT OF ADVERTISING EXPENSES WAS DENIED TO THE SELLER. SINCE IN THAT DECISION THERE WAS ALSO INVOLVED THE FACTOR THAT THE SELLER AND THE REAL ESTATE AGENT HAD EACH INCURRED ADVERTISING EXPENSES. 1967 (COPY ENCLOSED): "* * * IN THE ABSENCE OF A SHOWING OF A CUSTOM TO THE CONTRARY PREVAILING IN THE AREA OR A SPECIFIC PROVISION IN THE CONTRACT WITH THE BROKER THAT THE BROKER IS CHARGING LESS THAN THE CUSTOMARY FEE IN CONSIDERATION OF THE EMPLOYEE'S PAYING ADVERTISING OR OTHER COSTS. THE FEE PAID THE BROKER IS PRESUMED TO REPRESENT FULL PAYMENT FOR ALL COSTS AND SERVICES CONNECTED WITH THE PROCURING OF A PURCHASER FOR THE RESIDENCE.'. THE ENCLOSED VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.
B-161320, APR. 12, 1968
TO MR. PAUL J. GRAINGER:
WE REFER TO YOUR LETTER OF MARCH 13, 1968, REFERENCE 6540, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER COVERING CERTAIN ADVERTISING EXPENSES IN CONNECTION WITH THE SALE OF A RESIDENCE AT HIS OLD OFFICIAL DUTY STATION BY NEAL B. SMITH AN EMPLOYEE OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE AT COLORADO SPRINGS, COLORADO.
THE EMPLOYEE EXPENDED $6.30 FOR NEWSPAPER ADVERTISING IN AN EFFORT TO SELL THE PROPERTY HIMSELF, APPARENTLY PRIOR TO GIVING BELL REALTY COMPANY AN EXCLUSIVE ON AUGUST 9, 1967. THE RECORD INDICATES THAT THE BROKER RECEIVED A FULL 6 PERCENT FEE FOR SELLING THE HOUSE WITH NO REDUCTION DUE TO ADVERTISING EXPENSES INCURRED BY THE SELLER. THE BROKER ALSO ADVISES THAT HE UNDERTOOK NO ADVERTISING IN SELLING THE RESIDENCE AND INCURRED NO EXPENSES OF THAT NATURE.
YOU INQUIRE AS TO WHETHER THE FOREGOING FACTS DISTINGUISH THIS CASE FROM OUR DECISION B-161320, MAY 19, 1967, IN WHICH REIMBURSEMENT OF ADVERTISING EXPENSES WAS DENIED TO THE SELLER, SINCE IN THAT DECISION THERE WAS ALSO INVOLVED THE FACTOR THAT THE SELLER AND THE REAL ESTATE AGENT HAD EACH INCURRED ADVERTISING EXPENSES.
AS WE STATED IN OUR DECISION, B-161320, SEPTEMBER 5, 1967 (COPY ENCLOSED):
"* * * IN THE ABSENCE OF A SHOWING OF A CUSTOM TO THE CONTRARY PREVAILING IN THE AREA OR A SPECIFIC PROVISION IN THE CONTRACT WITH THE BROKER THAT THE BROKER IS CHARGING LESS THAN THE CUSTOMARY FEE IN CONSIDERATION OF THE EMPLOYEE'S PAYING ADVERTISING OR OTHER COSTS, THE FEE PAID THE BROKER IS PRESUMED TO REPRESENT FULL PAYMENT FOR ALL COSTS AND SERVICES CONNECTED WITH THE PROCURING OF A PURCHASER FOR THE RESIDENCE.'
THE FACT THAT A BROKER DOES NOT RESORT TO ADVERTISING THE PROPERTY FOR SALE OR THAT BROKERS GENERALLY IN SMALLER LOCALITIES DO NOT NEED TO DO SO WOULD NOT BE SUFFICIENT TO CONSTITUTE AN EXCEPTION TO THE ABOVE RULE. ACCORDINGLY, THE ENCLOSED VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.