The Applicant demonstrated that it has legal responsibility for the disaster repairs. Appeal Letter SENT VIA EMAIL Manuel Laboy Governor’s Authorized Representative Government of Puerto Rico P.O. Box 42001 San Juan, Puerto Rico 00940-2001 Mr. Ramón Negrón Cruz Principal, Asociacion Frailes Capuchinos, Inc. P.O. Box 21350 San Juan, Puerto Rico 00928 Re: Second Appeal – Asociacion Frailes Capuchinos, Inc., PA ID 127-U7ZNW-00, FEMA-4339-DR-PR, Grants Manager Project 121002, Legal Responsibility Dear Manuel Laboy and Ramón Negrón Cruz: This is in response to the Puerto Rico Central Office of Recovery, Reconstruction, and Resiliency’s (Recipient) letter dated April 19, 2023, which transmitted the referenced second appeal on behalf of Asociacion Frailes Capuchinos, Inc. (Applicant). The Applicant is appealing FEMA’s denial of funding for repairs to the San Francisco Chapel (Facility). As explained in the enclosed analysis, I have determined that the Applicant demonstrated that it has legal responsibility for the disaster repairs. Therefore, this appeal is granted. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals. Sincerely, /S/ Robert Pesapane Acting Division Director Public Assistance Division Enclosure cc: David Warrington Regional Administrator FEMA Region 2 Appeal Analysis Background From September 17 to November 15, 2017, Hurricane Maria caused severe damage throughout Puerto Rico.[1] Asociacion Frailes Capuchinos, Inc. (Applicant) requested Public Assistance (PA) funding to repair the San Francisco Chapel (Facility), which was originally constructed in 1756. FEMA prepared Grants Manager Project 121002 to document the Applicant’s request and identified disaster damage to the temple, offices, and residential areas of the Facility. With its project application, the Applicant submitted a certified copy of the minutes of a meeting that occurred in 1905, where the Third Order of St. Francis of Assisi (Franciscan Order), the owner of the Facility, granted perpetual use of the Facility to the Applicant via usufruct (1905 Agreement).[2] The 1905 Agreement allowed the Applicant to make improvements and modifications to the Facility at its own expense, but established that, “[t]he repairs to be made in the church and in the adjoining cloister will be paid for by the [Franciscan Order].”[3] The Applicant also provided a certified copy of the minutes from an October 30, 2010 meeting, in which the Franciscan Order ratified and confirmed the assignment made in 1905 in all its terms and conditions.[4] The Certification of Record from the 2010 meeting (2010 Agreement) stated that all conservation expenses and improvements of the Facility will be made by the Applicant without right of compensation, thereby allowing the Applicant to continue to use the Facility in perpetuity.[5] On December 3, 2021, FEMA denied the project, stating that the Applicant had not established legal responsibility for repairs of the Facility. FEMA stated that the documentation provided did not include clauses that made the Applicant responsible for structural repairs or those repairs necessary in case of fire, hurricane, earthquake, or any other disaster. First Appeal The Applicant submitted its first appeal, dated January 30, 2022, which included a certified sworn statement that detailed the chronology of how it came into possession of the Facility.[6] The Applicant also provided a copy of a private contract of assignment of rights (Assignment of Rights), dated September 23, 2021, in which the Franciscan Order assigned ownership of the Facility to the Applicant for $1.00 and acknowledged that the Applicant has enjoyed continuous and uninterrupted possession of the Facility since 1905.[7] The Applicant stated that it has had legal responsibility for the Facility without interruption since 1905 and provided maintenance records and other documentation of repairs it had performed to the Facility over the years.[8] On April 1, 2022, the Puerto Rico Central Office of Recovery, Reconstruction, and Resiliency (Recipient) transmitted the first appeal in support of the Applicant and stated that the amount in dispute is $2,000,000.00. The Recipient explained that, under Puerto Rico law, in instances where the usufruct document is silent or incomplete, the usufructuary (the Applicant) is responsible for ordinary repairs, which included repairs due to “deterioration or damage that come from the natural use of things, and are essential for their conservation,” and the owner (Franciscan Order) is responsible for extraordinary repairs.[9] According to the Recipient, this established the Applicant’s responsibility for ordinary repairs to the Facility. On July 8, 2022, FEMA sent the Applicant a request for information (RFI) requesting clarification from the Applicant regarding its responsibility for ordinary and extraordinary repairs based on the 1905 Agreement and 2010 Agreement. On August 6, 2022, the Applicant responded to FEMA’s RFI, reiterating that it had maintained and preserved the Facility for more than 70 years, through the present day. On December 23, 2022, the FEMA Region 2 Regional Administrator denied the appeal, finding that the Applicant had not established that it had legal responsibility for repairs to the Facility at the time of the declared incident.[10] FEMA acknowledged that the 2010 Agreement made it clear that the Applicant could possess the Facility in perpetuity and was responsible for all conservation expenses and improvements, but stated that this did not encompass disaster-related repairs in case of fire, hurricane, earthquake, or any other disaster. FEMA stated that, since the 2010 Agreement does not address responsibility for disaster-related repairs, under Puerto Rico law, the Applicant, as usufructuary, would be responsible for performing ordinary repairs, and the Franciscan Order, as the owner, would be responsible for extraordinary repairs. FEMA stated that, in accordance with the law, disaster-related repairs are not considered ordinary. Second Appeal On February 21, 2023, the Applicant submitted its second appeal, presenting new information that it is in the process of formalizing the registration of the title in the Property Registry of Puerto Rico, including information documenting its request for a time extension until its legal claim is completed. On April 19, 2023, the Recipient transmitted the Applicant’s appeal expressing its support. The Recipient states that the Applicant is submitting new evidence by which it intends to demonstrate its acquisition of title to the Facility through the legal concept of usucapion. The Recipient states that, per Article 777 of the Civil Code of Puerto Rico, usucapion is a way of acquiring dominion and other real rights of enjoyment by means of possession, in the manner and under the conditions determined by law.[11] The Recipient refers to Article 745 of the Civil Code of Puerto Rico, as amended, “[p]roperty is acquired by law, by occupation, discovery, accession, specification, usucapion, will or no-will succession, or as a consequence of certain contracts by tradition.”[12] The Recipient claims that, for more than 20 years, the Applicant has been in possession of the Facility as owners, which is defined in Puerto Rico law as “acting as the true owner by means of its actions or by the acts performed in relation to the property.”[13] Discussion FEMA may provide funding for the repair, restoration, reconstruction, or replacement of eligible private nonprofit facilities damaged or destroyed by a disaster.[14] To be eligible for funding, work must be the legal responsibility of the applicant requesting assistance and the applicant must provide proof that it owns or is otherwise legally responsible for the repairs at the time of the incident.[15] FEMA evaluates ownership and legal responsibility based on the terms of any written agreements, including deeds, title documents, and local government tax records.[16]An applicant may lease a facility owned by another party and in that case, FEMA reviews the lease agreement to determine legal responsibility for repair of damage caused by the incident.[17] Here, the written agreement regarding legal responsibility for the Facility is contained in the Certification of Record from 2010 that ratified the original agreement from 1905, which establishes that the Applicant is legally responsible for “all expenses of conservation and annexes” in perpetuity. There is nothing in the agreement that limits or defines conservation expenses; rather than being limited by specific definitions, the term “all conservation expenses in perpetuity,” can reasonably be understood to mean a wide range of expenses associated with caring for the Facility, including repairs from natural weather events, such as a hurricane. The original 1905 Agreement also established that the Franciscan Order would pay for “[t]he repairs to be made in the church and in the adjoining cloister.” It is unclear if this reference to “repairs to be made” pertained to work that was needed at the time the Facility was transferred to the Applicant in 1905, or whether the intent was that ongoing repairs in perpetuity would be paid for by the Franciscan Order. However, the Applicant has occupied the Facility since 1905 and has completed various repairs and improvements over the years, including: repairs of the bathroom roof and water tank, and communication systems; fungus removal and painting; restoration of doors and windows; and installing air conditioning units on the roof.[18] Additionally, there is no documentation in the record that indicates the Franciscan Order has been responsible for or has performed repairs. FEMA has taken this extensive history into consideration when interpreting any ambiguity regarding legal responsibility in the written agreements at issue. In addition to the Applicant’s documented history of repairs and improvements, the Assignment of Rights, completed after the disaster, serves to confirm the predisaster agreement. Recognizing that the Applicant has occupied that Facility for more than 115 years, the Franciscan Order transferred ownership of the Facility to the Applicant through the private agreement in consideration of $1.00 for the purpose that the Applicant enjoy it as the sole and legitimate owner. The Applicant certified that it is legally responsible for repair of the Facility, which is supported by the predisaster agreement and the Applicant’s actions over the years to maintain, improve, conserve, and restore the historic property. When viewed collectively, the record includes substantiating documentation supporting the Applicant’s claim of legal responsibility for the disaster repairs. Conclusion