Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ July 31, 2000 _______________________________________________ GSBCA 15350-RELO In the Matter of ROBERT P. AZINGER, JR. Robert P. Azinger, Jr., Louisville, KY, appearing for Claimant. Ronald L. Buckman, Finance & Accounting Officer, Department of the Army, Corps of Engineers, Louisville, KY, appearing for Department of the Army. BORWICK, Board Judge. Robert P. Azinger, Jr., claimant, an employee of the United States Army Corps of Engineers, agency, was permanently transferred from St. Mary's, Georgia, to Louisville, Kentucky. The agency granted claimant reimbursement of real estate transaction expenses. Claimant sold his house in St. Mary's, Georgia, and, as part of the house settlement, assumed some of the buyer's transaction expenses. The agency concluded that claimant's assumption of the buyer's expenses was not customary in the community and thus unallowable under the Joint Travel Regulations (JTR). The agency reduced claimant's reimbursement of real estate transaction expenses by $1372. Claimant appealed the reduction to this Board. Claimant has submitted unrebutted evidence establishing that, at the time of the sale, a seller's assumption of the buyer's expenses was customary in St. Mary's, Georgia. Claimant is entitled to reimbursement of the $1372. On March 6, 2000, claimant sold his house; according to the agency, the settlement sheet of that date indicates that claimant paid the following buyer's costs: Loan Origination Fee $500.00 Appraisal Fee $275.00 Credit Report $15.00 Tax Service Fee $60.00 Underwriting Fee $125.00 Document Preparation Fee $100.00 Loan Purchase Review File $150.00 Mortgage Insurance Policy $147.00 Total $1372.00 The agency reduced claimant's reimbursement of real estate transaction expenses by $1372, the amount of the buyer's cost claimant had assumed. The agency reasoned that "a transferred employee may not be reimbursed for the buyer's closing cost he paid in the sale of his residence in the absence of evidence that such costs were customarily required to be paid by the seller in the locality at that time. Further, travel regulations establish the policy that the Government is not responsible for real estate losses or other problems associated with market conditions." (Emphasis supplied.) In presenting its claim to the Board, claimant submitted three letters from real estate professionals explaining that in the area, the seller's assumption of buyer's cost is customary. A letter from Atlantic Coast Title Services states that "in this area it is customary for the seller to pay for the buyer's closing costs. Typically, we see this situation in more than 75% of our closings." A letter from real estate attorneys states: "This is to advise you that in our area it is customary for the seller to pay the closing costs for the purchaser. In 90% of the closings that we do, the seller pays all closing costs and 50% of the sellers also pay the prepaid items for the purchaser." A letter from a local realtor, ERA Kings Bay Realty, states: "please be advised that in Camden County it is customary and reasonable in more than 75% of real estate transactions the seller pays the buyer's closing costs." The JTR provide that certain listed expenses "are reimbursable in connection with [a] residence sale (if customarily paid by a seller of a residence at the old PDS [permanent duty station]." JTR C14002-A.4. An expense is customarily paid, if, by long and unvarying habitual actions, constantly repeated, such payment has acquired the force of a tacit and common consent within a community. Christopher L. Chretien, GSBCA 13704-RELO, 97-1 BCA 28,701. We disagree with the agency's suggestion in this matter that a customary practice must be equivalent to a requirement. In Steven D. Ward, GSBCA 14036-RELO, 98-2 BCA 29,813, we accepted a realtor's statements that sellers paid buyers' costs in seventy-five to eighty percent of sales as establishing a sufficient frequency of the practice to be deemed customary. We have also accepted unrebutted statements from a mortgage company that it is customary within a community for sellers to pay all mortgage costs as sufficient evidence of customary practice within that community. David H. Moore, GSBCA 15091-RELO, 00-1 BCA 30,748; see also Dawn S. Daugherty, GSBCA 14065-RELO, 97-2 BCA 29,050. Here, claimant has presented sufficient unrebutted evidence of the customary practice in St. Mary's, Georgia. In St. Mary's, Georgia, sellers assume buyers' costs between seventy-five and ninety percent of the time. The agency's suggestion that in this case the claimant paid the buyer's costs because of unfavorable market conditions for sellers is not supported by the record. The agency does not suggest that the claimed costs are otherwise unallowable. Claimant is entitled to be reimbursed the additional $1372. __________________________ ANTHONY S. BORWICK Board Judge