BNUMBER:  B-270296
DATE:  December 21, 1995
TITLE:  Andrea Brown-Temporary Quarters Subsistence Expense
Claim

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Matter of:Andrea Brown-Temporary Quarters Subsistence Expense Claim

File:     B-270296

Date:   December 21, 1995

DIGEST

Upon a permanent change of station, an employee and family initially 
occupied temporary quarters for 1 month and then moved into a duplex 
house rented pursuant to a 1-year lease.  Their household goods were 
moved in several weeks later.  Although the employee apparently had a 
verbal agreement with the landlord's agent that, notwithstanding terms 
of the 1-year lease, employee could cancel lease at any time, it is 
unlikely that such an unwritten agreement contrary to the terms of the 
written lease would be enforceable.  Based on these and other facts, 
the agency's determination that the employee's occupation of the house 
was not temporary is affirmed, and the denial of the employee's claim 
for additional subsistence expenses is sustained.

DECISION

Ms. Andrea B. Brown appeals our Claims Group settlement, Z-2869667, 
July 13, 1995, which disallowed her claim for reimbursement of 
temporary quarters subsistence expenses (TQSE) incident to a permanent 
change of station.  For the reasons set out below, the Claims Group 
settlement is affirmed.

BACKGROUND

Ms. Andrea Brown, a civilian employee of the Department of the Navy, 
was transferred from the Fleet and Industrial Supply Center (FISC), 
Charleston, South Carolina, to FISC Norfolk Detachment, King's Bay, 
Georgia, in October 1994.

Ms. Brown was authorized TQSE for 60 days.  She and her family 
occupied temporary quarters in St. Mary's, Georgia, in October 1994.  
Her claim for TQSE for October 30 through November 30, 1994, was 
allowed. 

On December 1, 1994, Ms. Brown's husband signed a 1-year lease 
agreement on a duplex house in St. Mary's.  Ms. Brown stated that she 
and her family occupied the duplex as suitable quarters while they 
learned the area and looked for a house to purchase, and pending her 
husband's return from an overseas assignment that he was beginning in 
January 1995.  Ms. Brown and her family occupied the house on December 
2, 1994.  Their household goods were delivered on December 31, 1994.  
A memorandum of a telephone conversation an agency representative had 
with Ms. Brown on March 28 notes that she stated it was her intention 
to fulfill the lease.  Ms. Brown later submitted a lease agreement on 
the same property for December 1994 only, which the Navy states she 
provided after being advised that the Navy considered the year's lease 
as establishing that the quarters were permanent in nature.  The Navy 
disallowed her claim on the basis that the duplex house she was 
renting was permanent quarters.  Our Claims Group sustained the 
disallowance for the period of December 2 through 28 on the same 
basis.

Ms. Brown appeals the determination of our Claims Group.  In support 
of her appeal, Ms. Brown has submitted a letter dated August 17, 1995, 
from the realtor who was the agent of the landlord of the duplex.  The 
letter states that (a) Ms. Brown has continued to search for new 
quarters and (b) Ms. Brown and the realtor had a verbal agreement that 
she could cancel the 1-year lease if she found suitable quarters 
elsewhere.

ANALYSIS

The payment of subsistence expenses while occupying temporary quarters 
is governed by part 5, chapter 2, of the Federal Travel Regulations 
(FTR), 41 C.F.R.  302-5.  An employee may not be reimbursed for 
temporary quarters and subsistence expenses after he or she occupies 
permanent quarters.  FTR  302-5.2(f).  However, occupancy of 
temporary quarters that eventually become the employee's permanent 
residence shall not prevent payment of the temporary quarters 
allowance if, in the agency's judgement, the employee shows 
satisfactorily that the quarters occupied were intended initially to 
be only temporary.  FTR  302-5.2(c).

What constitutes temporary quarters is not susceptible of any precise 
definition and that determination must be based upon the facts and 
circumstances involved in each case.  The threshold determination as 
to whether the quarters were initially temporary in nature is based on 
the intent of the employee at the time he moves into the dwelling.  
The factors to be considered in determining whether quarters are 
temporary or permanent are the duration of the lease, the movement of 
household goods into the quarters, the type of quarters, expressions 
of intent, attempts to secure a permanent dwelling, and the length of 
time the employee occupies the quarters.  Harrison J. Lane, B-183829, 
Jan. 2, 1976.

Regarding the duration of the lease, we have held that the execution 
of a 1-year lease on a dwelling at the employee's new duty station is 
a clear indication that the employee intends to occupy the rented 
quarters on other than a temporary basis.  Johnny M. Jones, 63 Comp. 
Gen. 531 (1984), affirmed on reconsideration, B-215228, Apr. 12, 1985.  
While in the present case the realtor's letter states that Ms. Brown 
and the realtor had an agreement (apparently verbal) that she could 
cancel the 1-year lease if she found suitable quarters elsewhere, such 
a cancellation would appear to have been only at the landlord's 
sufferance since the copy of the lease furnished us clearly commits 
the Browns to "the entire rental term" of the lease (1 year unless 
released in writing by the landlord).  It is doubtful whether such an 
unwritten agreement, inconsistent with the terms of a written lease, 
would be enforceable.  See Restatement (Second) of Contracts 215 
(1981).

Nor is evidence of continued search by an employee for a home to 
purchase sufficient, by itself, to establish the rented quarters as 
temporary.  See Johnny M. Jones, supra.  In the present case, under a 
1-year lease, Ms. Brown occupied a duplex house, which is a type of 
quarters that is usually permanent in nature, and as noted, when 
queried by the Navy, she stated her intention to rent the house for 
the term of the lease.  Her family's household goods were shipped to 
the duplex several weeks after her arrival.  Finally, the record gives 
no indication that Ms. Brown and her family subsequently vacated the 
duplex, but indicates that they continued to reside there at least 
through August 1995.

We believe the record supports the agency's determination that Ms. 
Brown's occupancy of the duplex did not constitute occupying temporary 
quarters for the purpose of entitlement to continuation of TQSE.  
Accordingly, the Claims' Group settlement is affirmed.

/s/Seymour Efros
for Robert P. Murphy
General Counsel