B-175916, JUL 3, 1972

B-175916, JUL 3, 1972

CIVILIAN EMPLOYEE - CHANGE OF STATION - SETTLEMENT EXPENSES DECISION ALLOWING CERTIFICATION OF A RECLAIM VOUCHER SUBMITTED BY DAVID ROBBINS, AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY, IN THE AMOUNT OF $100 REPRESENTING EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE INCIDENT TO A CHANGE OF STATION. UNDER THE CIRCUMSTANCES OF THIS CASE, THE VOUCHER WOULD APPEAR TO BE PROPER FOR PAYMENT UNDER SECTION 4.2F, OMB CIRCULAR NO. A-56, SINCE THE TERMS OF THE LEASE WERE SUCH THAT MR. ROBBINS COULD NOT HAVE AVOIDED PAYING THE AMOUNT.

TO MISS ANNORA F. FRAASA:

YOUR LETTER OF MAY 3, 1972, WITH ENCLOSURE, REQUESTS OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A RECLAIM VOUCHER SUBMITTED BY MR. DAVID ROBBINS, AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY, IN THE AMOUNT OF $100 REPRESENTING EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE ON RESIDENCE QUARTERS WHICH HE OCCUPIED AT HIS OLD OFFICIAL STATION PRIOR TO A TRANSFER OF HIS OFFICIAL STATION TO PHILADELPHIA, PENNSYLVANIA.

MR. ROBBINS ENTERED INTO A LEASE FOR AN APARTMENT AT "THE FORUM" FOR A TERM OF ONE YEAR, BEGINNING APRIL 1, 1970. MR. ROBBINS HAD APPARENTLY BEEN INFORMED OF HIS TRANSFER AS OF MAY 27, 1970, THE DAY HE SIGNED A TRAVEL AND TRANSPORTATION AGREEMENT. THE TRANSFER WAS EFFECTIVE AS OF AUGUST 2, 1970, THE TRAVEL APPARENTLY BEING PERFORMED ON AUGUST 1, 1970.

UNDER SECTION 4.2F OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56, DATED JUNE 26, 1969, AN EMPLOYEE, UPON TRANSFER TO A NEW DUTY STATION, IS ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE WHEN:

"*** (1) APPLICABLE LAWS OR THE TERMS OF THE LEASE PROVIDE FOR PAYMENT OF SETTLEMENT EXPENSES, (2) SUCH EXPENSES CANNOT BE AVOIDED BY SUBLEASE OR OTHER ARRANGEMENT, (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE EXPENSE BY FAILING TO GIVE APPROPRIATE LEASE TERMINATION NOTICE PROMPTLY AFTER HE HAS DEFINITE KNOWLEDGE OF THE PROPOSED TRANSFER ***."

ALTHOUGH THE LEASE SIGNED BY MR. ROBBINS MADE NO PROVISION FOR WHAT LIABILITY WOULD EXIST IF THE LEASE WERE PREMATURELY TERMINATED BY THE TENANT, THE SECURITY DEPOSIT AGREEMENT PROVIDED THAT "DETERMINATION OF THE FORFEITURE OF THIS DEPOSIT OR ANY PART THEREOF IS TO BE AT THE SOLE DISCRETION OF THE LANDLORD." WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE MANAGING AGENTS FOR THE APARTMENT BUILDING INVOLVED THAT MR. ROBBINS FORFEITED HIS SECURITY DEPOSIT FOR EXPENSES DUE TO LEASE CANCELLATION AND NOT FOR ANY OTHER PURPOSE AND THAT THIS IS THE USUAL PRACTICE WITH LEASES AT "THE FORUM" THAT ARE TERMINATED PREMATURELY. ALSO THE LEASE SPECIFICALLY FORBIDS THE TENANT TO SUBLEASE THE APARTMENT.

YOUR DOUBT AS TO THE PROPRIETY OF ALLOWING THE CLAIMED EXPENSE RESTS ON THE 30-DAY WRITTEN NOTICE PROVISION OF THE LEASE AND THE FACT THAT MR. ROBBINS HAS NOT SUBMITTED ANY EVIDENCE THAT HE GAVE SUCH NOTICE. THE PROVISION OF THE LEASE TO WHICH YOU REFER PROVIDES ONLY THAT A 30 DAY WRITTEN NOTICE IS REQUIRED IF THE TENANT INTENDS TO VACATE THE PREMISES AT OR SUBSEQUENT TO THE END OF THE TERM OF THE LEASE. NO PROVISION AT ALL IS MADE FOR PREMATURE TERMINATION OF THE LEASE. BECAUSE OF THE DISCRETION AFFORDED THE LANDLORD BY THE SECURITY DEPOSIT AGREEMENT AND BECAUSE THE LEASE WAS TERMINATED PREMATURELY, IN OUR OPINION, MR. ROBBINS WOULD NOT HAVE CONTRIBUTED TO THE EXPENSE FOR WHICH HE WAS LIABLE EVEN IF HE HAD FAILED TO GIVE PROMPT AND APPROPRIATE LEASE TERMINATION NOTICE. IN THIS CONNECTION, WE NOTE THAT THE SECURITY DEPOSIT AGREEMENT PROVIDES THAT NO PORTION OF THE SECURITY DEPOSIT IS TO BE CREDITED AGAINST THE RENT PAYABLE UNDER THE LEASE.

ACCORDINGLY, THE VOUCHER RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.