B-168157, MARCH 3, 1970, 49 COMP. GEN. 532

B-168157: Mar 3, 1970

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FROM LIABILITY TO REPAIR DAMAGES CAUSED BY "ACTS OF A STRANGER" IS THE RESPONSIBILITY OF THE LESSOR. THE PURPOSE FOR WHICH THE PREMISES WERE LEASED AND THE LEASE PROVISIONS RELATING TO REPAIRS. 1970: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. THE LESSORS WERE INFORMED BY THE POSTMASTER OF THE LEASED FACILITY OF BROKEN WINDOWS CAUSED BY VARIOUS ACTS OF VANDALISM AMOUNTING IN THE AGGREGATE TO ESTIMATED REPLACEMENT COSTS OF $621.26. IT APPEARS THAT TWO OF THE BREAKAGES WERE CAUSED BY BB GUN PELLETS WHILE AS TO THE THIRD BREAKAGE THERE WAS NO EVIDENCE OF VANDALISM. IT IS YOUR POSITION THAT ALTHOUGH THE BREAKAGES WERE CAUSED BY ACTS OF THIRD PERSONS. WHICH IS AN EXCEPTION TO THE GOVERNMENT'S REPAIR RESPONSIBILITY.

B-168157, MARCH 3, 1970, 49 COMP. GEN. 532

LEASES -- REPAIRS AND IMPROVEMENTS -- GOVERNMENT'S OBLIGATION THE REPAIR OF WINDOW BREAKAGE BY VANDALS AND OTHERWISE IN A BUILDING OCCUPIED AS A POST OFFICE UNDER A 30-YEAR LEASE THAT EXEMPTED THE LESSEE, THE GOVERNMENT, FROM LIABILITY TO REPAIR DAMAGES CAUSED BY "ACTS OF A STRANGER" IS THE RESPONSIBILITY OF THE LESSOR, EVEN IF THE LEASE DOES NOT PROVIDE AFFIRMATIVELY THAT THE LESSOR SHALL BE LIABLE FOR SUCH REPAIRS. ON THE BASIS OF THE ABSENCE OF "FEDERAL LAW" ON THE ISSUE, CONFLICT IN STATE COURT DECISIONS AS TO THE LEGAL LIABILITY OF THE LESSEE, THE LENGTH OF THE LEASE TERM, THE PURPOSE FOR WHICH THE PREMISES WERE LEASED AND THE LEASE PROVISIONS RELATING TO REPAIRS, THE EXCEPTIONS TO THE GOVERNMENT'S LIABILITY FOR REPAIRS SHOULD BE STRICTLY APPLIED AND THE GOVERNMENT AS LESSEE EXEMPTED FROM LIABILITY TO MAKE THE REPAIRS, EXCEPT FOR THE BREAKAGE NOT CAUSED BY VANDALISM.

TO LLOYD S. JACOBSON, MARCH 3, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1969, WITH ENCLOSURES, REQUESTING, ON BEHALF OF HARRY N. FORMAN AND ROSE C. FORMAN, OUR DECISION REGARDING THEIR LIABILITY AS LESSORS FOR REPAIRS TO THE MUNCIE, INDIANA, POST OFFICE.

THE LEASE, DATED OCTOBER 3, 1963, PROVIDED THAT THE POST OFFICE DEPARTMENT WOULD LEASE CERTAIN PREMISES SITUATED IN MUNCIE, INDIANA, AND OWNED BY THE LESSORS, FOR A PERIOD OF 30 YEARS AT AN ANNUAL RENTAL OF $72,600, PAYABLE IN EQUAL INSTALLMENTS AT THE END OF EACH CALENDAR MONTH. THE LEASE FURTHER PROVIDED FOR SIX 5-YEAR RENEWALS AT THE OPTION OF THE GOVERNMENT AT RENTAL RANGING FROM $60,000 TO $40,000 PER ANNUM.

BY LETTER OF SEPTEMBER 30, 1969, THE LESSORS WERE INFORMED BY THE POSTMASTER OF THE LEASED FACILITY OF BROKEN WINDOWS CAUSED BY VARIOUS ACTS OF VANDALISM AMOUNTING IN THE AGGREGATE TO ESTIMATED REPLACEMENT COSTS OF $621.26. IT APPEARS THAT TWO OF THE BREAKAGES WERE CAUSED BY BB GUN PELLETS WHILE AS TO THE THIRD BREAKAGE THERE WAS NO EVIDENCE OF VANDALISM. YOU STATE, IN EFFECT, THAT WHILE THE LEASE PROVIDES (IN PARAGRAPH 7(A)) THAT THE GOVERNMENT HAS NO LIABILITY TO REPAIR DAMAGES CAUSED BY "ACTS OF A STRANGER," THE LEASE DOES NOT PROVIDE AFFIRMATIVELY THAT THE LESSOR SHALL BE LIABLE FOR SUCH REPAIRS. YOU CONTEND THAT THE LEASE MUST BE INTERPRETED UNDER APPLICABLE INDIANA LAW, AND YOU CITE BOTH INDIANA AND OTHER AUTHORITIES FOR THE PROPOSITION THAT A LEASE PROVISION EXEMPTING THE LESSEE FROM MAKING REPAIRS NECESSITATED BY SPECIFIC CAUSES DOES NOT OBLIGATE THE LESSOR TO MAKE SUCH REPAIRS. IN ESSENCE, THEREFORE, IT IS YOUR POSITION THAT ALTHOUGH THE BREAKAGES WERE CAUSED BY ACTS OF THIRD PERSONS, WHICH IS AN EXCEPTION TO THE GOVERNMENT'S REPAIR RESPONSIBILITY, THERE IS NO PROVISION IN THE LEASE THAT THE LESSOR MUST MAKE SUCH REPAIRS, AND THAT UNDER THE INDIANA LAW THERE WOULD BE NO LIABILITY ON THE LANDLORD IN THE ABSENCE OF AN EXPRESS COVENANT. IN THIS REGARD, YOU REFER TO 51C C.J.S. 966, LANDLORD AND TENANT, SEC. 368(9), WHICH STATES AS FOLLOWS:

A TENANT'S COVENANT TO REPAIR MAY BE LIMITED IN NATURE AND EXTENT, AND THE EXCEPTIONS OF PARTICULAR REPAIRS IN THE COVENANT WILL BE OBSERVED; BUT THE FACT THAT THE TENANT AGREES TO MAKE SPECIFIED REPAIRS WILL NOT IMPOSE ON THE LANDLORD THE OBLIGATION TO MAKE REPAIRS NOT SO SPECIFIED, NOR DOES AN AGREEMENT EXEMPTING THE TENANT FROM MAKING REPAIRS NECESSITATED BY SPECIFIED CAUSES OBLIGATE THE LANDLORD TO MAKE SUCH REPAIRS.

IN CONSTRUING THE MEANING OF THE COVENANT IN A LEASE OBLIGATING THE GOVERNMENT, AS A LESSEE, TO MAINTAIN THE PREMISES, THE APPLICABLE LAW IS FEDERAL RATHER THAN STATE, ALTHOUGH IN THE ABSENCE OF CASES IN POINT, THE COURTS MAY PROPERLY TURN FOR GUIDANCE TO THE GENERAL LAW OF LANDLORD AND TENANT. SEE BROOKLYN WATERFRONT TERMINAL CORPORATION V UNITED STATES, 117 CT. CL. 62, 90 F. SUPP. 943, 948 (1950). THE ISSUE PRESENTED HERE HAS NOT BEEN, AS FAR AS WE HAVE BEEN ABLE TO ASCERTAIN, RESOLVED BY APPLICATION OF "FEDERAL LAW." THE STATE COURT DECISIONS ANNOTATED AT 51C C.J.S., LANDLORD AND TENANT, SEC. 368(9), ARE IN CONFLICT AS TO THE LEGAL LIABILITY OF THE LESSEE IN SIMILAR SITUATIONS. THERE IS, HOWEVER, SOME AUTHORITY FOR THE PROPOSITION THAT WHERE A LEASE STIPULATES THAT THE LESSEE WILL MAKE ALL NECESSARY REPAIRS, WITH CERTAIN SPECIFIED EXCEPTIONS, THE LEASE EXEMPTS THE LESSOR FROM MAKING ANY REPAIRS OTHER THAN THOSE EXPRESSLY EXCEPTED, BUT NOT FROM MAKING REPAIRS IF THEY ARE NEEDED AND CALLED FOR BY THE LESSEE. SEE JERSEY SILK & LACE STORES V BEST SILK SHOPS, 235 N.Y.S. 277 (1929); CF. FERRO V FERRANTE, 240 A. 2D 722 (1968). HOWEVER, CONSTRUING ALL PROVISIONS OF THE LEASE TOGETHER, CONSIDERING THE LENGTH OF THE LEASE TERM AND THE PURPOSE FOR WHICH THE PREMISES WERE LEASED, AND THE LEASE PROVISIONS RELATING TO REPAIRS, WE THINK IT REASONABLE TO CONCLUDE THAT THE EXCEPTIONS TO THE GOVERNMENT'S LIABILITY FOR REPAIRS SHOULD BE STRICTLY APPLIED. WITH THIS BROAD VIEW IN MIND, IT IS CLEARLY INDICATED THAT THE LESSOR IS OBLIGATED TO MAKE ANY REPAIRS AS TO WHICH THE LESSEE IS EXEMPTED FROM LIABILITY.

IT IS HIGHLY IMPROBABLE THAT THE PARTIES COULD HAVE INTENDED TO LEAVE ANY SIGNIFICANT CATEGORY OF NEEDED REPAIRS IN LIMBO TO GO UNMADE OR SIMPLY TO BE MADE BY THE PARTY MOST NEEDFUL OF THEM. UNDER ALMOST ANY CIRCUMSTANCES, THE PARTY MOST NEEDFUL OF EFFECTING PROMPT REPAIRS WOULD BE THE LESSEE, AND IT WOULD BE INCONSISTENT AND ILLOGICAL TO EXEMPT THE GOVERNMENT FROM MAKING BROAD CATEGORIES OF REPAIRS WHILE AT THE SAME TIME REQUIRING THE GOVERNMENT TO PAY FOR SUCH REPAIRS IF IT WANTED REPAIRS MADE. UNDER PARAGRAPH 7(A) OF THE LEASE, THERE ARE ONLY TWO KINDS OF REPAIR FOR WHICH THE LESSOR IS RESPONSIBLE; THOSE FOR WHICH THE GOVERNMENT IS EXEMPTED FROM LIABILITY, SUCH AS DAMAGES CAUSED BY ACTS OF A STRANGER, AND THOSE REQUIRED DUE TO DEFECTS IN BUILDING CONSTRUCTION, AS TO WHICH NOTICE IS GIVEN THE LANDLORD WITHIN THE FIRST YEAR OF THE LEASE TERM. HOLD OTHERWISE WOULD DEFEAT ENTIRELY THE GOVERNMENT'S EXEMPTIVE RIGHTS WHICH ARE SUPPORTED BY THE LEASE CONSIDERATION OVER A 30-YEAR TERM.

ACCORDINGLY, THE COST OF REPAIRS ($482.05) TO BROKEN WINDOWS CAUSED BY "ACTS OF A STRANGER" IS AN OBLIGATION OF THE LESSOR UNDER THE LEASE TERMS. SEE 20 ALR 2D 1331. HOWEVER, THE COST OF REPAIRING A WINDOW ($139.21) AS TO WHICH THERE IS NO EVIDENCE OF VANDALISM IS AN OBLIGATION OF THE GOVERNMENT UNDER PARAGRAPH 7(A) OF THE LEASE.

THE POST OFFICE DEPARTMENT IS BEING ADVISED OF THIS DECISION.