Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405







                     ________________________



                         January 11, 2002

                     ________________________





                         GSBCA 15377-RELO





                In the Matter of CECILIA McNICOLL





     Cecilia McNicoll, Leadville, CO, Claimant.



     Rhonda M. Johnson, Office of the Chief Financial Officer, National Finance

Center, Department of Agriculture, New Orleans, LA, appearing for Department

of Agriculture.



WILLIAMS, Board Judge.



     This is our second opinion regarding this employee's relocation benefits. 

In Cecilia McNicoll, GSBCA 15111-RELO, 00-1 BCA   30,810 (McNicoll I), the

United States Department of Agriculture (USDA) had requested our opinion on

whether a claim for attorney fees and survey costs incurred in conjunction with

claimant's permanent change of station and purchase of a residence on

37.10 acres of land could be paid.  We ruled that the record contained insufficient

evidence to permit a quantification of the allowable reimbursement and returned

the matter to the agency for further development of the record and reimbursement

consistent with the guidelines we articulated.



     The agency transmitted questions to claimant and then forwarded the

answers to the Board, again requesting the Board's decision on what costs could

be reimbursed.  See Rule 502 (48 CFR 6105.2 (2000)).  Because the amounts

claimant seeks are not all reasonably related to the residence site and exceed

those customarily paid in the locality, we reduce them accordingly.



                            Background



     Claimant, Cecilia McNicoll, an employee with USDA, was transferred from

Missoula, Montana, to Leadville, Colorado, effective July 9, 1996.  On May 11,

1998, claimant purchased a 37.10-acre parcel with a residence for a price of

$100,000; this land had been part of a larger 147-acre parcel.  She paid attorney fees

of $4021 in conjunction with this transaction and seeks reimbursement of this amount.  The

attorney fees represent 32.108 hours between August 14, 1996, and May 27, 1998,  at a rate

of $125 per hour, plus recorder costs.  An itemized bill from the attorney includes entries

regarding a "survey to resolve title obligations,"  preparation of two warranty deeds, two

quitclaim deeds, two promissory notes, and references to "miscellaneous matters relating to

closing of ranch purchase."  Although claimant purchased only Parcel A, the buyer's closing

statement contains an entry for recording fees for Parcel B.



     In our initial decision in this case, we pointed out that there are two restrictions which

may limit recovery of attorney fees.  First, only fees for legal services which "reasonably

relate to the residence site" may be reimbursed.  Second, the attorney fees must be

customarily paid by the purchaser in the locale and may not exceed amounts customarily

charged in the locale.  McNicoll I, 00-1 BCA at 152,103.  Because the record on the initial

claim did not address these matters, we remanded the matter to the agency for

supplementation.  



     On remand, the record indicates that a minimum of thirty-five acres is necessary to

maintain a water right associated with a well in this locale and that a well was the sole source

of water for claimant's residence and was needed for domestic use.  Under zoning regulations

for claimant's area, a minimum lot size of thirty-five acres is required, or application must

be made to subdivide.  Further, claimant's property is not used for commercial purposes and

is at an elevation of over 10,000 feet, unsuitable for farming.  Under these circumstances, we

find that the 37.10 acres reasonably relates to the residence site.  However, according to the

detailed billing records of claimant's attorney, it is apparent that two parcels were sold,

claimant's 37.10 acres and the remainder of 147 acres, some 110 acres.  Legal services

associated with both sales were included in the attorney fees being claimed here.  In addition,

this was no ordinary residential sale, but rather, a very complex transaction involving the

drafting of an option contract with revisions and amendments, two warranty deeds, two joint

claim deeds, two promissory notes, and deeds of trust as well as correspondence with two

other attorneys, representing the seller and the purchaser of the adjacent 110-acre parcel.



     The fees for legal work on the adjacent parcel, such as preparation of additional deeds

and notes, do not relate to claimant's purchase and may not be reimbursed.  In Lake County,

Colorado, it is not customary for attorneys to charge a flat fee for residential closing.  Rather,

the legal work for standard residential closings is typically handled by title companies for a

a closing fee of $150 and a title fee of $120 plus recording costs.  In unusually complex

transactions such as this, Lake County attorneys bill at an hourly rate but were unable to

estimate a standard fee because each fee depends upon the complexities of a given

transaction.



     Although this was an unusually complex transaction and the attorney fees were

reasonable for the services performed, this Board cannot reimburse claimant for any fees

above the average legal fee for a typical residential sale -- here, fees for services which are

not typically performed by attorneys, but rather, by title companies.

 [Foot # 1 ] 

     

****************** Footnote Begin **********

[Foot # 1 ]       One local attorney indicated that he recommends that clients use title

companies for standard closings since they can do the work less expensively and more

efficiently.

****************** Footnote End ************



 In Stanley H. Levine, GSBCA 14909-RELO, 00-1 BCA   30,603 (1999), the Board denied

reimbursement for attorney fees above $650, the average attorney fee for a residential sale

in the Ft. Monmouth, New Jersey, locality.  Id., at 2 (citing Margaret Kasper, GSBCA 14411-

RELO, 99-1 BCA   30,119).  In Kasper, the Board denied reimbursement of additional

attorney fees above $600, the average customarily paid in the locality, incurred in connection

with a sale which never transpired.  99-1 BCA at 149,014 (citing Edward C. Brandt, GSBCA

13649-RELO, 97-2 BCA   29,054 (attorney fee of $75 allowed as apparently within

customary range paid in locality); Gregory A. Moore, B-249311, et al. (Feb. 4, 1993)

(reimbursement limited to $200, the amount of legal fees for real estate transactions

customarily paid in Iowa City, Iowa); accord David R. Petak, B-247860 (July 23, 1992)

(denial of legal fees over and above the amount customarily paid in Atlanta, Georgia)). 

Applying these principles here, claimant may recover $270, the average fee customarily paid

in Lake County, plus recording costs of $7.50.



Survey Costs   



     Although claimant only wanted to purchase 37.10 acres, because the seller offered a

147-acre lot, the entire 147 acres were surveyed at a cost of $3750 by J. W. Land Survey

Company.  The seller paid $1000 of the survey costs.  The record does not indicate whether

the purchaser of the 110-acre parcel bore any of this cost.  Claimant seeks reimbursement of

the entire $3750.  

     

     Claimant is not entitled to reimbursement of the $1000 portion of the survey costs, as

she did not incur this cost.  Marion L. Ladd, GSBCA 15138-RELO, 00-1 BCA   30,890;

Jacqueline B. Parrish, GSBCA 15085-RELO, 00-1 BCA   30,605.  



     Applicable regulation permits the reimbursement of the cost of making surveys when

required for legal or financing purposes, if two conditions are met: the costs are customarily

paid by the purchaser of a residence at the new duty station and the amount does not exceed

that customarily charged in the locality of the residence.  41 CFR 302.6.2(c); Dale W. Stakes,

GSBCA 14613-RELO, 98-2 BCA   29,976.  



     According to the title company, the costs of a survey are customarily paid by the buyer

in Lake County, Colorado.  The cost of a survey in this locale ranges from $250 to $1000. 

Claimant admits that a survey was performed of the full 147 acres, but claims this had to be

done in order for her to purchase the 37.10 acres.  Claimant has offered no proof for this

assertion.  This Board has consistently limited reimbursable survey charges to that portion

of the acreage surveyed which is reasonably related to the residence site.  William D. Genda

II, GSBCA 15227-RELO, 01-1 BCA   31,287; Larry D. Gatewood, GSBCA 15343-RELO,

01-1 BCA   31,211; Michael T. Matarrese, GSBCA 14769-RELO, 99-1 BCA   30,243.  As

such, claimant is entitled to 25% (37.1/147) of $2750, the survey costs she actually paid, or

$687.50.



                            Decision



     The claim is granted in part.  Claimant may be reimbursed $277.50 in real estate legal

expenses and $687.50 for survey costs.







                              ____________________________________

                              MARY ELLEN COSTER WILLIAMS

                              Board Judge