A-33552, OCTOBER 3, 1930, 10 COMP. GEN. 149

A-33552: Oct 3, 1930

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SO AS TO MAINTAIN THEM IN THE SAME CONDITION THEY WERE IN AT THE BEGINNING OF THE TENANCY. 1930: I HAVE YOUR LETTER OF SEPTEMBER 26. AS FOLLOWS: THE UNITED STATES VETERANS' BUREAU IS OCCUPYING UNDER EXISTING LEASE. THE REMOVAL AND REPLACEMENT OF THE OLD SMOKESTACK AND BREECHING FOR BOILERS AT THE HOSPITAL IS NOW NECESSARY. IT WAS HELD BY THE BUREAU THAT THE WORK WOULD CONSTITUTE A MORE OR LESS PERMANENT IMPROVEMENT TO THE PREMISES NOT CONTEMPLATED BY THE TERMS OF THE LEASE. WAS ACCORDINGLY REQUESTED TO RENEW THE SMOKESTACK AND BREECHING WITHOUT EXPENSE TO THE BUREAU. YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER OR NOT. THE COST OF LABOR AND MATERIAL FOR THE WORK CONTEMPLATED IS A PROPER CHARGE AGAINST THE APPROPRIATIONS OF THE UNITED STATES VETERANS' BUREAU.

A-33552, OCTOBER 3, 1930, 10 COMP. GEN. 149

LEASES - IMPROVEMENTS AN AGREEMENT BY OFFICIALS OF THE GOVERNMENT TO MAINTAIN LEASED PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF A LEASE, HAS REFERENCE TO MINOR REPAIRS MADE NECESSARY BY THE USE, SO AS TO MAINTAIN THEM IN THE SAME CONDITION THEY WERE IN AT THE BEGINNING OF THE TENANCY, ORDINARY WEAR AND TEAR EXCEPTED, AND WOULD NOT INCLUDE THE REMOVAL OF AN OLD SMOKESTACK AND BREECHING AND THE FURNISHING AND ERECTION OF A NEW STACK AND NEW BREECHING, WHICH WOULD NOT BE A REPAIR, BUT AN IMPROVEMENT OF THE PROPERTY.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS OCTOBER 3, 1930:

I HAVE YOUR LETTER OF SEPTEMBER 26, 1930, AS FOLLOWS:

THE UNITED STATES VETERANS' BUREAU IS OCCUPYING UNDER EXISTING LEASE, FOR HOSPITAL PURPOSES, THE PROPERTY KNOWN AS THE CHRISTIAN CHURCH HOSPITAL, LOCATED AT 27TH STREET AND THE PASEO, KANSAS CITY, MISSOURI.

PARAGRAPH 7 OF THE LEASE (VBR-464) PROVIDES:

"7. THE LESSEE SHALL, UNLESS HEREIN SPECIFIED TO THE CONTRARY, MAINTAIN THE SAID PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THIS LEASE. THE LESSOR RESERVES THE RIGHT AT REASONABLE TIMES TO ENTER AND INSPECT THE PREMISES AND TO MAKE ANY NECESSARY REPAIRS TO THE BUILDING.'

THE REMOVAL AND REPLACEMENT OF THE OLD SMOKESTACK AND BREECHING FOR BOILERS AT THE HOSPITAL IS NOW NECESSARY, AND THE QUESTION HAS ARISEN AS TO WHETHER THE COST OF LABOR AND MATERIAL FOR THIS WORK CONSTITUTES A PROPER CHARGE AGAINST THE UNITED STATES VETERANS' BUREAU UNDER THE TERMS OF THE LEASE. AFTER CONSIDERING THE TERMS OF THE LEASE AND THE CHARACTER OF THE WORK IN QUESTION, IT WAS HELD BY THE BUREAU THAT THE WORK WOULD CONSTITUTE A MORE OR LESS PERMANENT IMPROVEMENT TO THE PREMISES NOT CONTEMPLATED BY THE TERMS OF THE LEASE, BEING MORE IN THE NATURE OF A REPLACEMENT THAN A REPAIR. THE CHRISTIAN CHURCH HOSPITAL ASSOCIATION, AS LESSOR, WAS ACCORDINGLY REQUESTED TO RENEW THE SMOKESTACK AND BREECHING WITHOUT EXPENSE TO THE BUREAU, BUT THE PRESIDENT OF THE ASSOCIATION REPLIED TO THE EFFECT THAT THE ASSOCIATION CONSTRUED THE LEASE TO MEAN THAT EXPENSES INCIDENT TO SUCH WORK SHOULD BE BORNE BY THE LESSEE.

YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER OR NOT, UNDER THE TERMS OF THE LEASE, THE COST OF LABOR AND MATERIAL FOR THE WORK CONTEMPLATED IS A PROPER CHARGE AGAINST THE APPROPRIATIONS OF THE UNITED STATES VETERANS' BUREAU. THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION IN CONNECTION WITH THE MATTER A COPY OF THE SPECIFICATIONS COVERING THE PROPOSED REPAIR OR REPLACEMENT.

THE PROVISIONS OF PARAGRAPH 7 OF THE EXISTING LEASE, INDICATE THAT IT WAS THE INTENTION OF THE PARTIES THAT THE UNITED STATES AS LESSEE SHOULD MAKE ORDINARY MINOR REPAIRS MADE NECESSARY BY THE USE SO AS TO KEEP THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION, THAT IS, MAINTAIN THEM IN THE SAME CONDITION THEY WERE IN AT THE BEGINNING OF THE TENANCY, ORDINARY WEAR AND TEAR EXCEPTED. SEE A-31388, DATED MAY 6, 1930. THE SPECIFICATIONS SUBMITTED PROVIDE FOR THE REMOVAL OF THE OLD SMOKE STACK AND BREECHING AND THE FURNISHING AND ERECTION OF A NEW STACK AND NEW BREECHING, THE TOTAL COST OF WHICH IS ESTIMATED AT $1,200.

IT HAS BEEN REPEATEDLY HELD THAT GOVERNMENT FUNDS MAY NOT BE USED TO MAKE IMPROVEMENTS IN PRIVATE PROPERTY HELD UNDER LEASE. MOREOVER, IN THE INSTANT CASE, IT IS NOT WITHIN THE POWER OR AUTHORITY OF ANY OFFICER OF THE VETERANS' BUREAU TO OBLIGATE THE GOVERNMENT TO DO MORE THAN TO REPAIR, WHICH MEANS TO RESTORE TO A SOUND OR GOOD STATE AFTER DECAY, INJURY, OR PARTIAL DESTRUCTION OF THE PROPERTY, AND NOT TO CHANGE EITHER THE FORM OR MATERIAL FOR THE STRUCTURE. 36 C.J. 139, SECTION 778. THE ERECTION OF A NEW SMOKE STACK AND NEW BREECHING FOR THE SAME, AS HEREIN PROPOSED, WOULD NOT BE A REPAIR, BUT AN IMPROVEMENT OF THE PROPERTY. 6 COMP. DEC. 943; 2 COMP. GEN. 606. ACCORDINGLY, THE APPROPRIATION FOR THE VETERANS' BUREAU IS NOT AVAILABLE FOR THE PROPOSED EXPENDITURE.