A-62109, JULY 20, 1935, 15 COMP. GEN. 51

A-62109: Jul 20, 1935

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1935" IS NOT AVAILABLE FOR PRUNING OF TREES. HE STATES THAT IF THESE REPAIRS ARE ADEQUATELY MADE. IN VIEW OF YOUR SEVERAL DECISIONS POINTING OUT THE RULE THAT PUBLIC FUNDS ARE NOT TO BE USED FOR THE IMPROVEMENT OF LEASED PROPERTY. THE SECOND PARAGRAPH OF THE LEASE UNDER WHICH THESE PREMISES ARE OCCUPIED PROVIDES AS FOLLOWS: FURTHERMORE. IT IS AGREED THAT THE PARTY OF THE FIRST PART (LESSOR) WILL PROMPTLY AND FOR HIS OWN ACCOUNT REPAIR ANY DAMAGES TO THE SAID PREMISES WHICH MAY RESULT FROM TIME TO TIME FROM ORDINARY WEAR AND TEAR. THAT THE PARTY OF THE SECOND PART IS RELIEVED OF ALL RESPONSIBILITY FOR SUCH DAMAGES AS WELL AS FOR DAMAGES WHICH MAY BE CAUSED BY STORM. IT IS PRESUMED THAT UPON THE GOVERNMENT'S ENTRY UNDER THE LEASE THE PREMISES WERE IN A TENANTABLE CONDITION AND SUITABLE FOR THE PURPOSES FOR WHICH THEY WERE LEASED.

A-62109, JULY 20, 1935, 15 COMP. GEN. 51

LEASES - PERMANENT IMPROVEMENTS APPLYING THE GENERAL RULE THAT APPROPRIATED FUNDS MAY NOT BE USED FOR PERMANENT IMPROVEMENTS TO PRIVATE PROPERTY OCCUPIED BY AN AGENCY OF THE UNITED STATES, THE APPROPRIATION "CONTINGENT EXPENSES, FOREIGN SERVICE, 1935" IS NOT AVAILABLE FOR PRUNING OF TREES, FURNISHING SOIL, REPLACING FLOWERS AND SHRUBS AND RESODDING SUCH AS WOULD ENHANCE THE VALUE OF THE PROPERTY AND ACCRUE TO THE LESSOR AT THE TERMINATION OF THE LEASE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JULY 20, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 15, 1935, F.A. 124:144/162, AS FOLLOWS:

ON JULY 1, 1934, THE AMERICAN LEGATION AT GUATEMALA OCCUPIED NEW PREMISES, RENTED UNDER CONTRACT OF LEASE NO. S24FA-15 DATED MAY 21, 1934, FOR A PERIOD OF FIVE YEARS FROM JULY 1, 1934.

THE AMERICAN MINISTER AT GUATEMALA HAS REQUESTED AN ALLOTMENT OF $450 DURING THE CURRENT AND COMING FISCAL YEARS WHICH HE DEEMS ESSENTIAL FOR THE APPROPRIATE MAINTENANCE OF THE LEGATION GROUNDS. HE HAS INCLUDED IN HIS REQUEST SUCH ITEMS AS PRUNING FORTY LARGE TREES, REPAIRING THE DRIVEWAY AND FOOTPATHS, CORRECTING DEFECTIVE DRAINAGE, FURNISHING SOIL, REPLANTING FLOWERS AND SHRUBS, RESODDING, AND REPAIR OF THE WALL ABOUT THE PROPERTY. HE STATES THAT IF THESE REPAIRS ARE ADEQUATELY MADE, NO FURTHER EXPENDITURES OF IMPORTANCE FOR THIS PURPOSE SHOULD BE NECESSARY DURING THE PERIOD OF THE LEASE.

IN VIEW OF YOUR SEVERAL DECISIONS POINTING OUT THE RULE THAT PUBLIC FUNDS ARE NOT TO BE USED FOR THE IMPROVEMENT OF LEASED PROPERTY, THE DEPARTMENT HAS CAUTIONED THE MINISTER TO MAKE NO EXPENDITURES WHICH MIGHT BE CONSTRUED AS "IMPROVEMENTS.' THE MINISTER WOULD APPRECIATE YOUR SPECIFIC DECISION WHETHER ANY OF THE ITEMS MENTIONED WOULD BE CONSTRUED BY YOUR OFFICE AS ,IMPROVEMENT.' THE EXPENDITURE, IF APPROVED, WOULD BE CHARGED TO THE APPROPRIATION "CONTINGENT EXPENSES, FOREIGN SERVICE.'

THE SECOND PARAGRAPH OF THE LEASE UNDER WHICH THESE PREMISES ARE OCCUPIED PROVIDES AS FOLLOWS:

FURTHERMORE, IT IS AGREED THAT THE PARTY OF THE FIRST PART (LESSOR) WILL PROMPTLY AND FOR HIS OWN ACCOUNT REPAIR ANY DAMAGES TO THE SAID PREMISES WHICH MAY RESULT FROM TIME TO TIME FROM ORDINARY WEAR AND TEAR, AND THAT THE PARTY OF THE SECOND PART IS RELIEVED OF ALL RESPONSIBILITY FOR SUCH DAMAGES AS WELL AS FOR DAMAGES WHICH MAY BE CAUSED BY STORM, WAR, FIRE, EARTHQUAKE, AND OTHER CAUSES BEYOND HIS CONTROL.

IT IS PRESUMED THAT UPON THE GOVERNMENT'S ENTRY UNDER THE LEASE THE PREMISES WERE IN A TENANTABLE CONDITION AND SUITABLE FOR THE PURPOSES FOR WHICH THEY WERE LEASED.

THE APPROPRIATION REFERRED TO IN THE LAST PARAGRAPH OF YOUR LETTER PROVIDES AS FOLLOWS:

FOR STATIONERY, BLANKS, RECORD AND OTHER BOOKS, SEALS, PRESSES, FLAGS, SIGNS, REPAIRS, INCLUDING MINOR ALTERATIONS, REPAIRS, SUPERVISION, PRESERVATION AND MAINTENANCE OF GOVERNMENT-OWNED DIPLOMATIC AND CONSULAR PROPERTIES IN FOREIGN COUNTRIES, AND PROPERTIES ACQUIRED UNDER THE ACT APPROVED MAY 7, 1926, AS AMENDED (U.S.C., SUPP. VI, TITLE 22, SECS. 291, 296), AND INCLUDING ALSO CUSTODIAL SERVICE, WATER, MATERIALS, SUPPLIES, TOOLS, SEEDS, PLANTS, SHRUBS, AND SIMILAR OBJECTS; * * *.

WHILE THE APPROPRIATION PROVIDES FOR THE PURCHASE OF "SEEDS, PLANTS, SHRUBS, AND SIMILAR OBJECTS" UNDER THE LANGUAGE OF THE APPROPRIATION SUCH PURCHASES APPEAR TO BE CONFINED TO THE ,REPAIRS, SUPERVISION, PRESERVATION, AND MAINTENANCE OF GOVERNMENT-OWNED DIPLOMATIC AND CONSULAR PROPERTIES IN FOREIGN COUNTRIES.'

AS WAS STATED IN MY DECISION OF JANUARY 22, 1935, A-59599, TO YOU, IT HAS LONG BEEN THE RULE THAT APPROPRIATED FUNDS MAY NOT BE USED FOR PERMANENT IMPROVEMENTS TO PRIVATE PROPERTY OCCUPIED BY AN AGENCY OF THE UNITED STATES.

IT WOULD APPEAR THAT UNDER THE PROVISIONS OF THE LEASE QUOTED ABOVE THE REPAIRING OF THE DRIVEWAY AND FOOTPATHS, CORRECTING DEFECTIVE DRAINAGE, AND REPAIR OF THE WALL ABOUT THE PROPERTY WOULD BE INCLUDED IN THE REPAIRS WHICH, UNDER THE TERMS OF THE LEASE, SHOULD BE MADE BY THE OWNER. THE PRUNING OF THE TREES, FURNISHING SOIL, REPLANTING FLOWERS AND SHRUBS, AND RESODDING MUST BE REGARDED AS IMPROVEMENTS SUCH AS WOULD ENHANCE THE VALUE OF THE PROPERTY AND ACCRUE TO THE LESSOR AT THE TERMINATION OF THE LEASE. THEREFORE, YOU ARE ADVISED THAT THE APPROPRIATION "CONTINGENT EXPENSES, FOREIGN SERVICE, 1935" IS NOT AVAILABLE FOR THE PROPOSED EXPENDITURES.