Many American government agencies lease office space from private property owners to perform their public duties. This raises the question of whether these institutions have public property policy and if constitutional rights are valid in these rented spaces. In this article, we will explore the legal and practical implications of this issue.
Public property policy is the set of rules and regulations that govern the acquisition, management, and disposal of federal real property assets. The General Services Administration (GSA) is the agency responsible for providing government-wide policy oversight and guidance for real property matters¹. The GSA also maintains a centralized inventory of real property under the custody and control of executive branch agencies, known as the Federal Real Property Profile (FRPP)⁴.
According to the GSA, leased space is defined as "space in privately owned buildings for which the Government has contractual rights to occupy through a lease agreement"⁴. As of fiscal year 2021, the federal government leased over 191 million square feet of space from private owners, accounting for about 28% of its total real property inventory⁴. The GSA itself manages about 60% of the leased space, while the rest is managed by other agencies⁴.
One of the main reasons why government agencies lease space from private owners is to reduce costs and increase flexibility. Leasing allows agencies to adjust their space needs according to their changing missions and budgets, without having to invest in long-term capital projects or maintenance². Leasing also enables agencies to access locations that are closer to their customers or stakeholders, or that offer better amenities or security².
However, leasing also poses some challenges and risks for government agencies and their employees. One of them is the potential conflict between public property policy and private property rights. When government agencies lease space from private owners, they enter into a contractual relationship that may limit their authority and autonomy over the rented space. For example, the lease agreement may restrict the agency's ability to modify, sublease, or terminate the space; or impose additional costs or liabilities on the agency².
Another challenge is the protection of constitutional rights in leased space. The Constitution guarantees certain rights and freedoms to individuals in relation to the government, such as freedom of speech, assembly, petition, religion, press, and due process. These rights are generally applicable on public property, such as federal buildings or parks, where the government exercises exclusive jurisdiction or control. However, these rights may not be fully recognized or respected on private property, where the owner has the right to exclude or regulate access by others³.
This creates a dilemma for government agencies that lease space from private owners. On one hand, they have to comply with public property policy and uphold constitutional rights as part of their public duty. On the other hand, they have to respect private property rights and abide by the lease agreement as part of their contractual obligation. How can they balance these competing interests and responsibilities?
There is no clear-cut answer to this question, as different situations may require different approaches and solutions. However, some general principles and guidelines can be followed by government agencies and their employees when dealing with leased space issues:
Review and understand the terms and conditions of the lease agreement before signing it. Negotiate with the owner to ensure that the lease agreement does not conflict with public property policy or constitutional rights, or seek legal advice if necessary.
Communicate with the owner and establish a good working relationship. Inform the owner of the agency's mission and activities, and seek their cooperation and consent for any changes or modifications to the space.
Respect the owner's rights and interests, and avoid any actions that may damage or interfere with their property or business. Pay rent on time, follow building rules and regulations, and report any problems or issues promptly.
Educate employees and visitors about their rights and responsibilities in leased space. Inform them of the nature and scope of the lease agreement, and any limitations or restrictions on their constitutional rights. Encourage them to exercise their rights respectfully and responsibly, and avoid any conflicts or disputes with the owner or other tenants.
Monitor and evaluate the performance and suitability of leased space. Assess whether leased space meets the agency's needs and expectations, and whether it complies with public property policy and constitutional rights. Seek feedback from employees and customers, and report any concerns or complaints to the agency's management or GSA.
Consider alternatives to leasing if leased space proves to be inadequate or problematic. Explore other options for acquiring or using space, such as buying, building, sharing, or teleworking. Compare the costs and benefits of each option, and make a decision based on the best interests of the agency and the public.
Leasing office space from private owners is a common practice among government agencies that offers many advantages but also poses some challenges. Government agencies have to balance public property policy and constitutional rights with private property rights and lease agreements when dealing with leased space issues. By following some general principles and guidelines, government agencies can ensure that leased space serves their public purpose and respects their private partners.
Sources
(1) General Services Administration (GSA) | USAGov. https://www.usa.gov/agencies/general-services-administration.
(2) Federal Real Property Public Data Set | GSA. https://www.gsa.gov/policy-regulations/policy/real-property-policy/asset-management/federal-real-property-profile-frpp/federal-real-property-public-data-set.
(3) Real Property Policy Division Overview | GSA. https://www.gsa.gov/policy-regulations/policy/real-property-policy.
(4) What Is Government-Owned Property? - Investopedia. https://www.investopedia.com/terms/g/government-owned-property.asp.
(5) Federal Property and Administrative Services Act of 1949. https://en.wikipedia.org/wiki/Federal_Property_and_Administrative_Services_Act_of_1949.
