B-128488, MAR. 11, 1957

B-128488, MAR. 11, 1957

TO MRS. LUCIE EL HAKIM:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1957, REQUESTING REVIEW OF SETTLEMENT OF JULY 19, 1956, WHICH DISALLOWED YOUR CLAIM FOR 20,000 SYRIAN POUNDS AS RENT FOR THE PERIOD BEGINNING JULY 1, 1952, AND ENDING OCTOBER 1, 1953, FOR THE PREMISES LOCATED AT 587 PARLIAMENT STREET, DAMASCUS, SYRIA, FORMERLY OCCUPIED BY THE UNITED STATES INFORMATION AND EDUCATION SERVICE UNDER LEASE NO. S-148-FA-22, DATED JULY 15, 1950.

THE ABOVE LEASE PROVIDES FOR A TERM BEGINNING AS OF DATE OF OCCUPANCY AND ENDING ON JUNE 30, 1952, AT AN ANNUAL RENTAL RATE OF 20,000 POUNDS (SYRIAN) PAYABLE IN ADVANCE SUBJECT TO A SIX PERCENT REDUCTION AND A LIMITATION RESTRICTING ANNUAL RENTAL PAYMENTS TO $6,060.61 PER ANNUM PRIOR TO SUCH DEDUCTION. PARAGRAPH 13 PROVIDES FOR A PROPORTIONATE REBATE OF THE RENTAL IN THE EVENT THE PREMISES SHOULD BE RENDERED PARTIALLY UNTENANTABLE ON ACCOUNT OF CIVIL DISTURBANCE OR OTHER CASUALTIES. THE RECORD SHOWS THAT ON MARCH 28, 1952, THE PREMISES WERE ALMOST TOTALLY DESTROYED BY A BOMB PLACED IN THE BASEMENT OF THE PREMISES BY UNKNOWN PARTIES. THE LESSEE'S OCCUPANCY FROM MARCH 28, 1952, TO JUNE 30, 1952, WHEN THE LEASE EXPIRED IS DESCRIBED AS PARTIAL. IN THE MEANTIME, YOU WERE NOTIFIED ORALLY AND IN WRITING THAT THE LEASE WOULD NOT BE RENEWED. THE PREMISES WERE VACATED ON JUNE 30, 1952, EXCEPT FOR CERTAIN SAFES LOCATED ON THE SECOND FLOOR. WHILE REHABILITATION OF THE PREMISES WAS NOT COMPLETED UNTIL OCTOBER 1, 1953, IT APPEARS THAT THE WORK HAD PROGRESSED SUFFICIENTLY TO PERMIT REMOVAL OF THE SAFES ON JULY 24, 1953. ALSO, THE RECORD SHOWS THAT PURSUANT TO PARAGRAPH 13 OF THE LEASE, DEMAND WAS MADE ON YOU FOR A REBATE OR REDUCTION IN THE RENT ON ACCOUNT OF THE UNTENANTABLE CONDITION OF THE PREMISES FOLLOWING THE BOMBING BUT THAT SUCH REBATE WAS REFUSED, NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 13 AUTHORIZING A REBATE UNDER SUCH CIRCUMSTANCES, AND THAT YOU CONSIDERED 80 PERCENT OF THE PREMISES AS UNFIT FOR OCCUPANCY.

IN REQUESTING REVIEW YOU CONTEND THAT THE LESSEE WAS NEGLIGENT IN WATCHING AND GUARDING THE PREMISES, AND YOU ASSERT THAT WHILE FORTY EMPLOYEES WERE ASSIGNED TO THE BUILDING THERE WAS NO PORTER OR WATCHMAN TO GUARD THE PREMISES, AT LEAST DURING THE NIGHT. ALSO, YOU ASSERT THAT THE PARTY OR PARTIES RESPONSIBLE FOR THE BOMBING ENTERED THROUGH AN OPEN DOOR AND THAT HAD THE DOOR BEEN LOCKED AS IT SHOULD HAVE UNDER THE PREVAILING CONDITIONS, IT WOULD HAVE BEEN IMPOSSIBLE FOR THE BOMBING TO HAVE OCCURRED. ON THE BASIS OF THE FACTS AS REPORTED IN YOUR LETTER, IT APPEARS TO BE YOUR VIEW THAT THE LESSEE WAS NEGLIGENT IN FAILING TO PROTECT THE LEASED PREMISES AND THAT SINCE THE DAMAGE TO THE BUILDING WAS ATTRIBUTABLE TO SUCH NEGLIGENCE THE UNITED STATES IS LIABLE FOR THE RENTAL CLAIMED.

AS A FURTHER ARGUMENT IN SUPPORT OF YOUR CLAIM YOU ASSERT, IN EFFECT, THAT THE NOTICES THAT THE LEASE WOULD NOT BE RENEWED FOR THE YEAR BEGINNING JULY 1, 1952, DID NOT OPERATE TO RELIEVE THE TENANT FROM LIABILITY FOR THE RENT ACCRUING ON THAT DATE FOR THE REASON THAT THE KEYS WERE NOT RETURNED TO YOU AT THAT TIME IN ACCORDANCE WITH SYRIAN LAW AND CUSTOM. IN THE CIRCUMSTANCES, IT IS CONTENDED THAT THE LESSEE'S FAILURE TO REMOVE THE SAFES OPERATED TO CONTINUE THE TENANCY AND THE LESSEE'S OBLIGATION FOR RENTAL UNTIL THEY WERE ACTUALLY REMOVED ON JULY 24, 1953. ALSO, YOU ASSERT THAT THE SAFES COULD HAVE BEEN REMOVED UPON EXPIRATION OF THE LEASE THROUGH THE WINDOWS, THE WOODEN STAIRCASE, ETC. FINALLY, YOU REFER TO THE COURT JUDGMENT AWARDED TO YOU BY THE SYRIAN COURT WHICH RENDERED A VERDICT IN YOUR FAVOR FOR THE BOMB DAMAGE AND YOUR PRIOR REFERENCES TO THE SYRIAN LAWS UNDER WHICH YOU CONTEND THE LESSEE IS LIABLE FOR THE RENT COVERED BY YOUR CLAIM.

THE RECORD SHOWS THAT PRIOR TO SUBMISSION OF THE CLAIM TO THIS OFFICE IT WAS CONSIDERED AND DISAPPROVED BY THE AMERICAN EMBASSY AT DAMASCUS AND THAT SUCH ACTION WAS AFFIRMED BY THE DEPARTMENT OF STATE ON SEVERAL OCCASIONS. AFTER YOUR CLAIM WAS ADMINISTRATIVELY DISAPPROVED FOR PAYMENT, YOU INSTITUTED COURT PROCEEDINGS IN THE SYRIAN COURT WHICH RESULTED IN A JUDGMENT IN YOUR FAVOR FOR PAYMENT OF THE BOMB DAMAGE. THE COURT DISMISSED YOUR CLAIM AGAINST THE UNITED STATES AMBASSADOR FOR RENT, THE COURT OBSERVING, IN EFFECT, THAT SINCE YOU WITHDREW YOUR CASE AGAINST THE LESSEE AND SINCE THE CLAIM FOR RENT IS GOVERNED BY THE TERMS OF THE LEASE, YOU HAD A LEGAL RIGHT TO ASSERT A CLAIM UNDER THE LEASE AT A LATER DATE.

WHILE YOU ALLEGE NEGLIGENCE AND WANT OF CARE ON THE PART OF THE LESSEE IN PROTECTING THE PROPERTY, SUCH ALLEGATIONS ARE DIRECTLY CONTRARY TO THE FACTS AS ADMINISTRATIVELY REPORTED. SPECIFICALLY, IT IS REPORTED THAT THE NORMAL PROCEDURE FOLLOWED AT THE POST CALLED FOR PERIODIC INSPECTIONS AND THAT PURSUANT TO SUCH PROCEDURE THE SECURITY GUARD WHO CONDUCTED AN INSPECTION OF THE NEIGHBORHOOD ABOUT THIRTY FIVE MINUTES PRIOR TO THE BOMBING REPORTED THAT HE HAD SEEN NOTHING TO WARRANT SUSPICION OF ANY NATURE. AS TO YOUR CONTENTIONS THAT THE FAILURE TO DELIVER THE KEYS AT THE EXPIRATION OF THE LEASE AND THE FAILURE TO REMOVE THE SAFES AT THAT TIME OPERATED TO OBLIGATE THE LESSEE FOR RENT AS A HOLDOVER TENANT UNTIL THE SAFES WERE REMOVED, IT MAY BE STATED THAT WHETHER THESE FACTORS MAY BE REGARDED AS CONSTITUTING A HOLDING OVER MUST BE CONSIDERED IN THE LIGHT OF THE ATTENDING CIRCUMSTANCES. WHILE IT IS RECOGNIZED THAT IT IS CUSTOMARY TO RETURN THE KEYS TO THE LESSOR UPON EXPIRATION OF THE LEASE, THE ADMINISTRATIVE OFFICE HAS JUSTIFIED ITS FAILURE TO DO SO IN THIS INSTANCE BECAUSE OF THE FACT THAT THE BUILDING WAS SUBSTANTIALLY DESTROYED, A FACT ADMITTED BY YOU. AS FURTHER JUSTIFICATIONS, IT IS ADMINISTRATIVELY REPORTED THAT THE DOOR LOCKS AND HANDLES WERE STOLEN FROM THE UNDAMAGED PORTION OF THE BUILDING. IT SHOULD BE POINTED OUT THAT TO THE EXTENT THE ADMINISTRATIVE VERSION OF THE FACTS DIFFER FROM THOSE REPORTED IN YOUR LETTER, THERE IS APPLICABLE HERE THE WELL ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT OF THE UNITED STATES, IN CASES OF DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, WHICH IS SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. WE FIND NO EVIDENCE IN THE RECORD WHICH WOULD JUSTIFY OUR OFFICE IN DISREGARDING THE FACTS AS ADMINISTRATIVELY REPORTED IN THIS INSTANCE.

WHILE THERE IS QUOTED IN YOUR LETTER AN EXCERPT FROM THE JUDGMENT OF THE COURT UNDER WHICH YOU WERE AWARDED COMPENSATION FOR THE DAMAGE TO THE PREMISES, IT IS NOT UNDERSTOOD WHAT BEARING THAT HAS ON YOUR PRESENT CLAIM. IN THE QUOTED EXCERPT THE COURT MERELY STATES, IN EFFECT, THAT THERE IS NO CIVIL LIABILITY ON THE PART OF THE SYRIAN GOVERNMENT OR THE MAYOR OF DAMASCUS FOR THE RENT CLAIMED BY YOU AND THAT YOUR CLAIM IN THAT RESPECT IS ONE FOR CONSIDERATION BETWEEN YOU AND THE LESSEE UNDER THE TERMS OF THE LEASE. THE ONLY LEGAL BASIS UPON WHICH THE LESSEE COULD BE HELD LIABLE AS A HOLDOVER TENANT UNDER THE LEASE HERE IS THAT IT FAILED TO REMOVE THE SAFES WITHIN A REASONABLE TIME AFTER THE EXPIRATION OF THE LEASE WITH DUE REGARD TO ALL THE ATTENDING CIRCUMSTANCES. GENERALLY, THE MATTER OF WHETHER LEAVING PROPERTY ON LEASED PREMISES OTHERWISE VACATED OBLIGATES THE LESSEE FOR RENT FOR A NEW TERM DEPENDS ON THE FACTS IN EACH CASE. IT IS WELL SETTLED THAT A NEW TERM IS NOT CREATED WHERE THE HOLDING OVER IS INVOLUNTARY AND DUE TO CIRCUMSTANCES OVER WHICH THE LESSEE HAS NO CONTROL, AND THERE IS NO SHOWING THAT THE LAW OF SYRIA IN THIS RESPECT IS ANY DIFFERENT FROM THAT OF THE UNITED STATES. HAVING REGARD FOR THE CIRCUMSTANCES UNDER WHICH THE SAFES WERE LEFT ON THE PREMISES AFTER THE EXPIRATION OF THE LEASE, AND SINCE THE RECORD SHOWS THAT THE SAFES WERE REMOVED AS SOON AS IT WAS ADMINISTRATIVELY DETERMINED THAT SUCH REMOVAL COULD BE SAFELY ACCOMPLISHED, THERE IS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM. HOWEVER, EVEN IF IT COULD BE CONSIDERED THAT A NEW TERM WAS CREATED, YOU WOULD NOT BE ENTITLED TO THE FULL AMOUNT OF THE RENTAL STIPULATED IN THE LEASE SINCE UNDER THE EXPRESS TERMS OF PARAGRAPH 13 THE LESSEE WOULD BE ENTITLED TO A REBATE OF THE RENTAL BASED UPON THE CONDITION OF THE PREMISES DURING THE HOLDOVER PERIOD.

AS TO YOUR REQUEST THAT YOUR CLAIM BE CONSIDERED ON AN EQUITABLE BASIS IF IT IS FOUND THERE IS NO LEGAL BASIS FOR THE CLAIM, IT MAY BE STATED THAT THE AUTHORITY OF THIS OFFICE UNDER SECTION 236, REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 20, DOES NOT EXTEND TO CLAIMS BASED SOLELY ON EQUITABLE OR MORAL CONSIDERATIONS.

IN VIEW OF THE FOREGOING, THE SETTLEMENT OF JULY 19, 1956, IS SUSTAINED.