CBCA 7135

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON AUGUST 7, 2023 RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED; APPELLANT’S MOTION FOR SUMMARY JUDGMENT GRANTED IN PART; APPEAL GRANTED IN PART: July 25, 2023 CBCA 7135 THE HEIRS OF BAHAWOUDDIN, SON OF NEYAZ MOHAMMAD, Appellant, v. DEPARTMENT OF STATE, Respondent. Roia Shefayee of Wellspring Advisers, PC, Alameda, CA, counsel for Appellant. Erin M. Kriynovich, Office of the Legal Adviser, Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), VERGILIO, and SULLIVAN. SULLIVAN, Board Judge. The Heirs of Bahawouddin, Son of Neyaz Mohammad (the Heirs or appellant), filed a motion for summary judgment, seeking, as a matter of law, the payment of unpaid rent and the costs to rebuild a building on property leased to the Department of State (DOS or respondent). DOS filed a motion for partial summary judgment, asserting that the Heirs’ claim for the destruction of the building was untimely and contrary to the terms of the lease CBCA 7135 2 and that it did not owe the Heirs rent for the period after the lease was assigned. We grant DOS’ partial motion, grant in part the Heirs’ motion, and grant in part the appeal. Background In December 2013, DOS entered into a lease with the Heirs for residential property in Kabul, Afghanistan, referred to as the “Jill-Fab.” Appeal File, Exhibit 1 at 12.1 Mr. Mohammad Tariq Baha, appointed through a power of attorney, signed the lease on behalf of the Heirs. Id. at 12. The lease term was for ten years, starting March 1, 2014, and rent was $120,000 per year. Id. at 1-2. Several lease provisions control the resolution of the parties’ dispute. Article eight provided that DOS would return the property “as is” at the end of the lease and had the right to demolish any structure on the premises, at its own discretion, without any requirement to compensate the Heirs: C. The TENANT will not be responsible for restoring the Premises to any condition or for any changes or damages to the Premises. The Premises are leased in “as is” condition and may be returned in the “as is” condition as of the date of lease expiry or termination. D. The TENANT may demolish, at its discretion and cost, any buildings on the Premises, without paying compensation, with no responsibility to rebuild at a future time. Exhibit 1 at 4. Article nine provided that DOS may “assign its interest in the Premises . . . to any party without the prior consent of the LANDLORD” and that it would provide the Heirs with notice of the assignment. Id. at 5. The lease also contained two provisions pertaining to the choice of law to be employed in resolving any disputes arising under the lease. Article fifteen provided that “all disputes arising under or relating to this Lease shall be resolved exclusively under” the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), and that claims by the landlord “shall be submitted within [six] years after accrual of the claim.” Exhibit 1 at 7-8. If claims were found due, article fifteen also provided for DOS to pay CDA interest calculated from the date of receipt of the claim. Article sixteen provides that “[t]he terms of this lease shall be construed in accordance with the local laws of Afghanistan.” Id. at 10. 1 All exhibits are found in the appeal file, unless otherwise noted. CBCA 7135 3 On June 27, 2019, DOS assigned its interest in the lease to the Federal Republic of Germany (FRG). Exhibit 2 at 45. In the notice to the Heirs, DOS stated that all future rent payments would be made by FRG and that DOS would no longer have any further responsibility for or liability under the lease. Id. DOS made five annual payments pursuant to the lease, a total of $600,000, for rent owed through February 28, 2019. Appellant’s Statement of Undisputed Material Facts ¶ 3. In response to the claim, DOS acknowledged that it had not paid the rent owed from March 1, 2019, through the date of the assignment because of concerns about Mr. Baha’s authority to receive those payments. Exhibit 3 at 4. According to Mr. Baha, FRG made two additional payments, a total of $240,000. Declaration of Mohammad Tariq Baha (date) ¶ 20.