A-61329, JULY 31, 1936, 16 COMP. GEN. 92

A-61329: Jul 31, 1936

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GOVERNMENT LIABILITY FOR DAMAGE TO LEASED PROPERTY THERE IS NO AUTHORITY FOR PAYMENT OF THE COST OF RESTORATION OF A BUILDING LEASED BY THE GOVERNMENT FOR USE AS A POST OFFICE. WHERE THE PERIOD OF OCCUPANCY IS IN EXCESS OF 12 YEARS AND THE LESSOR MADE PRACTICALLY NO REPAIRS DURING THE ENTIRE PERIOD OF OCCUPANCY. THE DAMAGES COMPLAINED OF ARE ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED AND THE PERIOD INVOLVED. AS FOLLOWS: REFERENCE IS MADE TO PREVIOUS CORRESPONDENCE RELATING TO THE CLAIM OF CORWIN S. THE INSPECTORS TO WHOM THE MATTER WAS REFERRED FOR INVESTIGATION HAVE REPORTED THAT PRACTICALLY ALL OF THE ITEMS INCLUDED IN THE CLAIM COVER DAMAGE DUE TO ORDINARY WEAR AND TEAR DURING THE TWENTY-ONE YEARS THE GOVERNMENT HAS OCCUPIED THE BUILDING.

A-61329, JULY 31, 1936, 16 COMP. GEN. 92

GOVERNMENT LIABILITY FOR DAMAGE TO LEASED PROPERTY THERE IS NO AUTHORITY FOR PAYMENT OF THE COST OF RESTORATION OF A BUILDING LEASED BY THE GOVERNMENT FOR USE AS A POST OFFICE, WHERE THE PERIOD OF OCCUPANCY IS IN EXCESS OF 12 YEARS AND THE LESSOR MADE PRACTICALLY NO REPAIRS DURING THE ENTIRE PERIOD OF OCCUPANCY, AND THE DAMAGES COMPLAINED OF ARE ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED AND THE PERIOD INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, JULY 31, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 22, 1936, AS FOLLOWS:

REFERENCE IS MADE TO PREVIOUS CORRESPONDENCE RELATING TO THE CLAIM OF CORWIN S. SHANK, LESSOR OF THE PREMISES OCCUPIED BY THE UNIVERSITY STATION OF THE SEATTLE, WASHINGTON, POST OFFICE, FOR RESTORATION OF THE PREMISES ON THE THEORY THAT THE DAMAGE THERETO HAS BEEN DUE TO THE ACTS OR NEGLIGENCE OF GOVERNMENT EMPLOYEES.

ALTHOUGH MR. SHANK'S CLAIM INCLUDES ITEMS AGGREGATING $643.46, THE INSPECTORS TO WHOM THE MATTER WAS REFERRED FOR INVESTIGATION HAVE REPORTED THAT PRACTICALLY ALL OF THE ITEMS INCLUDED IN THE CLAIM COVER DAMAGE DUE TO ORDINARY WEAR AND TEAR DURING THE TWENTY-ONE YEARS THE GOVERNMENT HAS OCCUPIED THE BUILDING; FURTHERMORE, THAT THE LESSOR HAS FAILED TO MAKE OTHER THAN MINOR REPAIRS DURING THE ENTIRE PERIOD OF OCCUPANCY. IT IS THEIR CONCLUSION THAT THE GOVERNMENT SHOULD PAY FOR THE DAMAGE TO THE PLASTER WALLS CAUSED BY THE OPERATION OF HAND TRUCKS AND THE ATTACHMENT OF NOTICES OF VARIOUS KINDS TO THE WALLS OF THE WORKROOM. IT IS ESTIMATED THAT THE COST OF REPAIRING THIS DAMAGE SHOULD NOT EXCEED $20. THEY ALSO RECOMMEND THAT THE GOVERNMENT ASSUME RESPONSIBILITY FOR THE REPLACEMENT OF FIVE CLEAR GLASS WINDOWS AT A COST OF APPROXIMATELY $8.75 AND TWO PANES OF OBSCURE GLASS COSTING $5.

IT IS REQUESTED THAT YOU ADVISE WHETHER THE ITEMS LISTED ABOVE MAY BE RESTORED AND THE EXPENSE INCIDENT TO SUCH RESTORATION CHARGED TO THE RENT, LIGHT, AND FUEL APPROPRIATION.

THE RECORDS OF THIS OFFICE SHOW THAT THE LEASE DATED DECEMBER 4, 1924, UNDER WHICH THESE PREMISES ARE BEING OCCUPIED, HAS BEEN EXTENDED FROM TIME TO TIME, THE LAST EXTENSION BEING FOR A PERIOD OF 1 YEAR FROM JULY 1, 1936, AT AN ANNUAL RENTAL OF $2,250. THE LESSOR'S CLAIM FOR RESTORATION OF THE PREMISES AS PROVIDED FOR UNDER PARAGRAPH 8 OF THE LEASE WAS CONSIDERED IN MY DECISION OF JULY 10, 1935, TO YOU, AND IN HOLDING THAT THERE IS NO AUTHORITY OF LAW FOR CHARGING THE GOVERNMENT FOR ANY OF THE ITEMS OF ALLEGED DAMAGE TO THE LEASED PREMISES REFERRED TO IN THE POSTAL INSPECTOR'S REPORT OF NOVEMBER 14, 1934, IT WAS STATED AS FOLLOWS:

REGARDLESS OF WHETHER THE CONDITION OF THE PREMISES AT THE EXPIRATION OF THE INVOLVED LEASE WAS DUE TO NATURAL WEAR AND TEAR RESULTING FROM THE PURPOSES FOR WHICH THE PREMISES WERE LEASED--- IN WHICH EVENT THERE WOULD UNDER NO CIRCUMSTANCES BE ANY LIABILITY ON THE PART OF THE GOVERNMENT TO REPAIR OR RESTORE--- OR WHETHER IT WAS DUE TO OTHER CAUSES FOR WHICH THE GOVERNMENT MIGHT BE LIABLE TO RESTORE OR REPAIR UNDER THE LEASE IF A PROPER NOTICE THEREOF HAD BEEN GIVEN, SUCH LIABILITY, IF ANY, WOULD BE DEPENDENT UPON AN APPROPRIATE NINETY-DAY WRITTEN NOTICE FROM THE LESSOR TO RESTORE OR REPAIR. ON THE EVIDENCE OF RECORD, IT DOES NOT APPEAR THAT THE LESSOR NOTIFIED THE GOVERNMENT OF HIS INTENTION TO REQUIRE RESTORATION OF THE PREMISES TO PREVIOUS CONDITION "90 DAYS BEFORE THE TERMINATION OF THE LEASE.' THIS REQUIREMENT OF THE LEASE, HAVING BEEN MADE A CONDITION PRECEDENT TO ANY OBLIGATION ON THE GOVERNMENT TO RESTORE, MAY NOT BE WAIVED.

THE MATTER OF WHETHER THE LESSOR'S ORIGINAL NOTICE AS RENEWED ON AUGUST 6, 1935, REQUESTING RESTORATION UNDER PARAGRAPH 8 OF THE LEASE CONSTITUTED SUFFICIENT NOTICE UNDER A PROPOSAL AND ACCEPTANCE AGREEMENT DATED AUGUST 1, 1935, EXTENDING THE LEASE FOR A PERIOD NOT TO EXCEED ONE YEAR FROM JULY 1, 1935, AT AN INCREASED RENTAL OF $2,250 WAS CONSIDERED IN MY LETTER OF NOVEMBER 29, 1935, TO YOU. YOU WERE ADVISED AT THAT TIME THAT THE MATTER APPEARED TO BE ONE FOR THE CONSIDERATION OF THE POST OFFICE DEPARTMENT FOR AN INSPECTION OF THE PREMISES BEFORE THE EXPIRATION OF THE PERIOD COVERED BY THE EXTENSION AGREEMENT AND A COMPARISON OF THEIR CONDITION EXISTING AT THAT TIME WITH THEIR CONDITION EXISTING AT THE TIME OF GOVERNMENT'S ENTERING ON SAME, REASONABLE AND ORDINARY WEAR AND TEAR, AND DAMAGES BY THE ELEMENTS AND BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAD NO CONTROL EXCEPTED.

YOU NOW REQUEST TO BE ADVISED WHETHER CERTAIN ITEMS OF THE "DAMAGE * * * DUE TO THE ACTS OR NEGLIGENCE OF GOVERNMENT EMPLOYEES" MAY BE RESTORED AND THE EXPENSE INCIDENT TO SUCH RESTORATION CHARGED TO THE APPROPRIATION "RENT, LIGHT, AND FUEL.'

IN THE POSTAL INSPECTORS' REPORT REFERRED TO ABOVE IT IS STATED AS FOLLOWS:

5. THERE ARE TWO PANELS OF OBSCURE GLASS, ONE 20 INCHES BY 30 INCHES, AND THE OTHER 23 INCHES BY 26 INCHES, IN THE SCREEN LINE THAT HAVE BEEN BROKEN BY CARELESSNESS ON THE PART OF PATRONS. THERE ARE FIVE PANELS OF PLAIN GLASS IN THE WORKROOM WINDOWS, EACH 24 INCHES BY 24 INCHES, WHICH HAVE BEEN BROKEN DUE TO THE CARELESSNESS OF THE EMPLOYEES IN THE STATION.

7. THE WALLS ARE COVERED WITH WOOD LATH AND PLASTER, THE SAME BEING TRUE OF THE THREE COLUMNS EXTENDING FROM THE FLOOR TO THE CEILING. THE PLASTER HAS BEEN KNOCKED OFF THE WALL FOR SEVERAL FEET HIGH, AND IN NUMEROUS INSTANCES NAILS HAVE BEEN DRIVEN INTO THE PLASTERING, TO WHICH CORDS WERE ATTACHED FOR THE PLACING OF LIGHTS AT CONVENIENT POINTS, AND FOR OTHER PURPOSES. THE DAMAGE TO THE PLASTERING EXTENDS UP APPROXIMATELY EIGHT FEET ABOVE THE FLOOR, AND IN ORDER TO PUT THE WALLS IN FIRST-CLASS CONDITION, THE BROKEN PLASTER SHOULD BE REMOVED, AND THE WALLS REPLASTERED TO A HEIGHT OF NOT LESS THAN EIGHT FEET. IN THE LOBBY PORTION OF THE OFFICE, THE DAMAGE TO THE PLASTERING EXTENDS ALMOST TO THE CEILING, WHICH IS 14 FEET HIGH, THE ENTIRE WALL BEING DISCOLORED WITH INK SPOTS AND NAIL HOLES, AND SHOULD BE REPLASTERED TO THE CEILING. THE TOTAL SURFACE THAT WOULD REQUIRE REPLASTERING IN THE EAST, NORTH, AND WEST WALLS OF THE BUILDING IS APPROXIMATELY 1,747 SQUARE FEET. IT IS MY OPINION THAT THE DEPARTMENT SHOULD ASSUME FINANCIAL RESPONSIBILITY FOR THE REPLASTERING OF THESE WALLS AS OUTLINED ABOVE.'

THE INSPECTORS' REPORT DOES NOT ESTABLISH THAT ANY OF THE DAMAGES REFERRED TO THEREIN WERE CAUSED BY OTHER THAN REASONABLE AND ORDINARY WEAR AND TEAR, OR CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAD NO CONTROL. THE FACT THAT CERTAIN WINDOW PANES WERE BROKEN AND THAT THERE WAS DAMAGE TO THE PLASTER WALLS CAUSED BY THE OPERATION OF HAND TRUCKS AND THE ATTACHMENT OF NOTICES OF VARIOUS KINDS TO THE WALLS OF THE WORKROOM DOES NOT ESTABLISH OR EVEN INDICATE NEGLIGENCE. SUCH DAMAGES ARE REASONABLY TO BE EXPECTED IN THE USE OF A BUILDING AS A POST OFFICE. ALSO, WHILE THE RENTAL OF $1,200 PER ANNUM AS FIXED IN THE ORIGINAL LEASE WAS INCREASED TO $2,100 IN THE FIRST AND SECOND RENEWALS, AND TO $2,250 UNDER THE LAST RENEWAL, IT APPEARS THAT THE LESSOR HAD MADE PRACTICALLY NO REPAIRS DURING THE ENTIRE PERIOD OF OCCUPANCY OF MORE THAN 12 YEARS.

ACCORDINGLY, IN VIEW OF THE FACTS HEREINBEFORE STATED, THE ALLEGED DAMAGES TO THE BUILDING APPEAR ONLY SUCH AS MIGHT BE PRESUMED TO RESULT FROM ITS REASONABLE USE FOR THE PURPOSE FOR WHICH LEASED, AND IT MUST BE HELD THAT THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES TO PAY ANY PART OF THE AMOUNT CLAIMED THEREFOR.