B-151128, MAY 10, 1963

B-151128, MAY 10, 1963

TO LIEUTENANT COLONEL MCLENDON M. STALLINGS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1963, WITH ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 6, 1963, DISALLOWING $1,794.53 OF YOUR CLAIM FOR $2,079.76, FOR DAMAGES RESULTING FROM THE DEPARTMENT OF THE ARMY'S OCCUPANCY OF YOUR DWELLING LOCATED AT 3330 SOUTH 20TH STREET, ABILENE, TEXAS, UNDER ARMY LEASE NO. DA-41-443-ENG -5918.

UNDER DATE OF AUGUST 8, 1960, YOU AND YOUR WIFE, JOSEPHINE STALLINGS, ENTERED INTO THE ABOVE LEASE WITH THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, FORT WORTH DISTRICT, WHEREBY YOU LEASED THE SAID DWELLING TO THE ARMY AT THE RENTAL RATE OF $150 A MONTH FOR THE PERIOD AUGUST 8, 1960, THROUGH JUNE 30, 1961, WITH THE PROVISION, UNDER CERTAIN CONDITIONS, THAT THE LEASE WOULD REMAIN IN FORCE THEREAFTER FROM YEAR TO YEAR WITHOUT FURTHER NOTICE BUT IN NO EVENT SHOULD IT EXTEND BEYOND JUNE 30, 1966. APPEARS THAT UNDER THE MUTUAL CANCELLATION PRIVILEGES CONTAINED IN THE LEASE YOU NOTIFIED THE FORT WORTH DISTRICT ENGINEERS ON APRIL 11, 1962, THAT YOU DESIRED TO TERMINATE THE LEASE ON OR ABOUT JUNE 4, 1962, AND THAT SUCH DATE WAS MUTUALLY AGREEABLE TO YOU AND THE ARMY HOUSING OFFICER, PARTICULARLY SINCE THE ARMY HAD INTENDED TO VACATE THE PROPERTY ON OR ABOUT MAY 30, 1962. THE LEASE ACTUALLY WAS TERMINATED ON JUNE 4, 1962, AND ON JUNE 6, 1962, AN ARMY REPRESENTATIVE MADE A TERMINAL CONDITION SURVEY OF THE VACATED PREMISES. BY LETTER DATED JANUARY 8, 1963, THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT A CLAIM FOR $2,079.76 WHICH WAS MADE BY YOU FOR RESTORATION OF THE PROPERTY DUE TO DAMAGE ALLEGEDLY SUSTAINED TO THE PROPERTY DURING THE PERIOD OF THE ARMY'S OCCUPANCY. BY SETTLEMENT DATED FEBRUARY 6, 1963, YOUR CLAIM WAS ALLOWED IN THE AMOUNT OF $285.23 AS RECOMMENDED BY THE DEPARTMENT OF THE ARMY AND DISALLOWED IN THE AMOUNT OF $1,794.53 FOR THE REASONS SET FORTH IN THE SETTLEMENT.

IN YOUR LETTER DATED MARCH 6, 1963, REQUESTING REVIEW OF THE SETTLEMENT YOU STATE THAT NUMEROUS ITEMS OF DAMAGE TO THE PROPERTY WERE OF SUCH A NATURE THAT THEY WERE NOT APPARENT AT THE TIME THE ORIGINAL TERMINATION CONDITION SURVEY WAS MADE. YOU CONTEND THAT THE EXCESSIVE DEPRECIATION SUSTAINED AS THE RESULT OF THE OVER-ALL CONDITION OF YOUR PROPERTY WAS FAR ABOVE THAT NORMALLY EXPECTED FOR A HOUSE SLIGHTLY OVER FIVE YEARS OLD AND YOU FURNISH CERTAIN AFFIDAVITS INTENDED TO SUPPORT THIS CONTENTION.

UNDER PARAGRAPH 7 OF THE LEASE THE GOVERNMENT AGREED, UPON RECEIPT OF PROPER NOTICE, TO SURRENDER POSSESSION OF THE PREMISES WITHIN CERTAIN SPECIFIED PERIODS OF TIME IN AS GOOD A CONDITION AS THAT EXISTING AT THE TIME OF POSSESSION, REASONABLE AND ORDINARY WEAR AND TEAR EXCEPTED. THE GOVERNMENT HAD THE FURTHER RIGHT UNDER THIS PARAGRAPH TO MAKE A CASH SETTLEMENT TO YOU IN LIEU OF SUCH RESTORATIVE MEASURES AS MIGHT BE NECESSARY TO EFFECT A RETURN OF THE PROPERTY IN THE CONDITION AS CONTEMPLATED UNDER THE LEASE. THE RECORD SHOWS THAT IN CARRYING OUT ITS OBLIGATION UNDER THE LEASE IN THIS REGARD THE DEPARTMENT OF THE ARMY ON JUNE 6, 1962, OR ONLY TWO DAYS AFTER THE TERMINATION OF THE LEASE, HAD A REPRESENTATIVE MAKE A TERMINAL CONDITION SURVEY OF THE LEASED PROPERTY. IT IS REPORTED THAT THE ARMY REPRESENTATIVE MET AT THAT TIME WITH YOU AND MRS. STALLINGS AND DURING THE INSPECTION OF THE PROPERTY BOTH OF YOU WERE GIVEN EVERY OPPORTUNITY AND, IN FACT, WERE REQUESTED SEVERAL TIMES BY THE REPRESENTATIVE TO CALL HIS ATTENTION TO ALL ITEMS THAT YOU FELT HAD BEEN DAMAGED. IT IS FURTHER REPORTED THAT THE ONLY ITEMS MENTIONED BY YOU OR MRS. STALLINGS AT THAT TIME WHICH WERE NOT INCLUDED IN THE FINAL RESTORATION REPORT--- UPON WHICH THE AMOUNT OF DAMAGE OF $285.23 WAS ALLOWED AND PAID TO YOU--- WERE THE CONCRETE PATIO AND THE GARBAGE DISPOSAL WHICH APPEAR TO HAVE BEEN SETTLED BY MUTUAL AGREEMENT. THE DEPARTMENT OF THE ARMY ADVISES THAT YOU AND MRS. STALLINGS APPEARED TO BE VERY COOPERATIVE DURING THE OVER-ALL INSPECTION AND DEPARTED SEEMINGLY SATISFIED. THUS, THE RECORD BEFORE US SHOWS THAT THE ARMY NOT ONLY CONDUCTED THE TERMINAL CONDITION SURVEY PROMPTLY AFTER THE TERMINATION OF THE LEASE BUT THAT BOTH YOU AND MRS. STALLINGS WERE PRESENT AT THAT TIME AND WERE GIVEN EVERY OPPORTUNITY TO POINT OUT THE DAMAGED ITEMS FOR WHICH YOU BELIEVED THE GOVERNMENT WAS RESPONSIBLE. ALSO, WE CAN FIND NOTHING UNREASONABLE IN THE ARMY'S USE OF A 50 PERCENT DEPRECIATION FACTOR IN EVALUATING THE DAMAGE TO CERTAIN CARPETS AND DRAPERIES SINCE THESE ITEMS WERE SHOWN TO HAVE BEEN ALMOST SIX YEARS OLD. UNDER THESE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE DEPARTMENT OF THE ARMY COMPLETELY FULFILLED ITS LEGAL OBLIGATION WITH RESPECT TO THE RESTORATIVE MEASURES UNDER THE TERMS OF PARAGRAPH 7 OF THE LEASE.

MOREOVER, NO MERIT MAY BE GIVEN TO YOUR CONTENTION THAT SOME DEFECTS OR CONDITIONS THAT WERE NOT READILY APPARENT AT THE TIME OF THE TERMINAL SURVEY WERE LATER DISCOVERED BY YOU. TO PERMIT ALLEGATIONS BY YOU OF DAMAGE TO CERTAIN ITEMS SEVERAL MONTHS AFTER YOUR RESUMPTION OF OCCUPANCY AND AFTER YOU HAD THE OPPORTUNITY TO CALL ATTENTION TO SUCH DAMAGE AT THE TIME THAT THE TERMINAL CONDITION SURVEY WAS MADE CLEARLY WOULD NOT BE IN CONFORMANCE WITH THE USUAL PROCEDURES FOR DETERMINING THE LESSEE'S RESPONSIBILITY IN THIS REGARD. THIS WOULD APPEAR TO BE PARTICULARLY TRUE WHERE, AS HERE, IT IS NOTED THAT THE ADDITIONAL ITEMS OF DAMAGE AS CLAIMED BY YOU INCLUDED DAMAGE TO SUCH THINGS AS LINOLEUM FLOOR COVERING, CERAMIC TILE, FOLDING DOORS, GARAGE DOORS, ETC., ALL OF WHICH ALLEGED DAMAGE WOULD SEEM TO HAVE BEEN READILY APPARENT AT THE TIME THAT THE ORIGINAL INSPECTION UNDER THE TERMINAL CONDITION SURVEY WAS MADE.

ALSO, IT APPEARS THAT THE DIFFERENCES BETWEEN THE AMOUNT OF THE DAMAGES WHICH YOU ALLEGE HAVE BEEN SUSTAINED AND THE AMOUNT WHICH THE GOVERNMENT HAS ALLOWED ARE IRRECONCILABLE. IT IS OBVIOUS THE DEPARTMENT OF THE ARMY IS OF THE VIEW THAT YOUR CLAIM IS EXCESSIVE AND NOT WARRANTED BY THE FACTS. IN SUCH SITUATIONS IT IS THE LONG ESTABLISHED RULE OF OUR OFFICE, WHEN THERE IS A COMPLETE DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS AND THOSE STATED BY THE CLAIMANT, TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. SEE 16 COMP. GEN. 325; 18 ID. 799, 800; 31 ID. 288; AND 37 ID. 568, 570.