B-18855, JULY 31, 1941, 21 COMP. GEN. 90

B-18855, JULY 31, 1941, 21 COMP. GEN. 90

LEASES - REPAIRS AND IMPROVEMENTS - LESSOR'S LIABILITY FOR PLASTERING AND PAINTING PLASTER REPAIRING AND PAINTING WORK ARE OBLIGATIONS OF THE LESSOR UNDER A LEASE WHICH REQUIRES THE LESSOR, WITH CERTAIN ENUMERATED EXCEPTIONS, NOT INCLUDING PLASTERING AND PAINTING, TO REPAIR AND TO MAINTAIN THE LEASED PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THE LEASE.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, JULY 31, 1941:

I HAVE YOUR LETTER OF JULY 14, 1941, AS FOLLOWS:

ON JULY 1, 1939, THE PUBLIC BUILDINGS ADMINISTRATION OF THIS AGENCY ENTERED INTO A LEASE WITH JUST US S. WARDELL, RECEIVER FOR THE DISTRICT NATIONAL BANK OF WASHINGTON, FOR THE OCCUPANCY OF THE BUILDING KNOWN AS THE PREMIER APARTMENTS, LOCATED AT 718 18TH STREET NW.

THIS LEASE HAS BEEN RENEWED FROM TIME TO TIME, AND AT PRESENT THE GOVERNMENT OCCUPIES THE PREMISES UNDER A TENANCY WHICH EXPIRES ON JUNE 30, 1942. IN ACCORDANCE WITH THE PROVISIONS OF AN ORDER OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA THE PROPERTY IN QUESTION WAS SOLD AND TRANSFERRED TO CHARLES H. TOMPKINS AND HIS WIFE, LIDA R. TOMPKINS BY A DEED DATED DECEMBER 31,1940.

THE PREMIER APARTMENT BUILDING HAS BEEN RENTED BY THE GOVERNMENT SINCE DECEMBER 21, 1935, AT THE MAXIMUM RENTAL PERMITTED UNDER THE PROVISIONS OF THE ECONOMY ACT, AND WITH THE EXCEPTION OF THE PRESENT OWNERS, THE LESSOR HAS ALWAYS ASSUMED THE RESPONSIBILITY FOR THE PAINTING OF THE ROOMS AND CORRIDORS WHEN CALLED UPON TO DO SO BY THE GOVERNMENT. HOWEVER, IN RESPONSE TO A RECENT REQUEST OF THE PUBLIC BUILDINGS ADMINISTRATION UPON THE PRESENT OWNERS TO DO CERTAIN PLASTER REPAIRING AND PAINTING WORK IN THE BUILDING IN QUESTION, MR. TOMPKINS DECLINED TO PERFORM SUCH WORK, STATING THAT IN HIS INTERPRETATION OF THE LEASE THE RESPONSIBILITY FOR SUCH PAINTING AND PLASTERING RESTED WITH THE GOVERNMENT, AS THE LESSEE. WITH REFERENCE TO THE RESPONSIBILITY OF THE LESSORS FOR MAKING ALTERATIONS AND REPAIRS TO THE PREMIER APARTMENTS, SECTIONS 6 AND 9 OF THE LEASE PROVIDE AS FOLLOWS:

"6. THE LESSOR SHALL FURNISH TO THE GOVERNMENT, DURING THE OCCUPANCY OF SAID PREMISES, UNDER THE TERMS OF THIS LEASE, AS PART OF THE RENTAL CONSIDERATION, THE FOLLOWING:

"THE LESSOR AGREES THAT HE WILL COMPLY WITH ALL THE MUNICIPAL ORDINANCES, REGULATIONS, AND STATUTES RELATING TO BUILDINGS AND THEIR EQUIPMENT IN THE DISTRICT OF COLUMBIA, AND THAT HE WILL DISCHARGE AT HIS EXPENSE ALL TAXES, DUTIES OR CHARGES LEVIED OR TO BE LEVIED ON SAID PREMISES DURING SAID TERM, EXCEPT WATER RENTS, GAS, AND ELECTRIC CURRENT CHARGES.

"THE LESSOR WILL PROVIDE VENETIAN BLINDS OR AWNINGS ON ALL WINDOWS ON THE SOUTH SIDE OF THE BUILDING AND WILL MAKE ALL REPAIRS TO SAID BUILDING DURING THE TERM OF THIS LEASE OR EXTENSION THEREOF DUE TO FAULTY CONSTRUCTION OR ORDINARY WEAR AND TEAR, AND WILL MAINTAIN IN EFFICIENT WORKING CONDITION ALL ELEVATORS, PLUMBING, LIGHTING, AND HEATING APPARATUS, INSOFAR AS THE SAME MAY BECOME DEFECTIVE THROUGH ORDINARY WEAR AND TEAR OR WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE GOVERNMENT OR OF ITS AGENTS OR EMPLOYEES, EXCEPTING MINOR REPAIRS TO WINDOW AND DOOR GLASS, ELECTRIC LIGHTING, HEATING, AND PLUMBING EQUIPMENT, WHICH SHALL, AS A PART OF THE CONSIDERATION OF RENTAL, BE MADE BY THE GOVERNMENT AT ITS EXPENSE.

"IT IS ALSO AGREED THAT THE GOVERNMENT SHALL NOTIFY THE LESSOR OF ANY REPAIRS WHICH SHOULD BE MADE AT THE EXPENSE OF THE LESSOR AND, IF SUCH REPAIRS ARE NOT MADE WITHIN A PERIOD OF TIME WHICH THE GOVERNMENT CONSIDERS TO BE REASONABLE, THE LATTER WILL BE AUTHORIZED TO MAKE SUCH REPAIRS AND CHARGE SAME TO THE LESSOR, AND IF SUCH CHARGE IS NOT PROMPTLY PAID, THE GOVERNMENT SHALL BE AUTHORIZED TO DEDUCT THE AMOUNT OF SUCH CHARGES FROM THE AMOUNTS DUE THE LESSOR AS RENTAL UNDER THE TERMS OF THIS LEASE.

"9. THE LESSOR SHALL, UNLESS HEREIN SPECIFIED TO THE CONTRARY, MAINTAIN THE SAID PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THIS LEASE, EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES. FOR THE PURPOSE OF SO MAINTAINING THE PREMISES, THE LESSOR RESERVES THE RIGHT AT REASONABLE TIMES TO ENTER AND INSPECT THE PREMISES AND TO MAKE ANY NECESSARY REPAIRS THERETO.'

IT IS UNDERSTOOD THAT GENERALLY THE LANDLORD IS UNDER NO OBLIGATION WHATEVER TO KEEP THE PREMISES IN REPAIR IN THE ABSENCE OF AN EXPRESS STIPULATION BINDING HIM TO DO SO. HOWEVER, IT IS BELIEVED THAT THE WORDING OF SECTIONS 6 AND 9 IS SPECIFIC AND DEFINITE ENOUGH TO REQUIRE THE LESSOR IN THIS CASE TO PERFORM THE PAINTING AND PLASTERING WORK REQUESTED.

IN VIEW OF THE POSITION TAKEN BY THE PRESENT LESSORS, YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THIS AGENCY IS JUSTIFIED IN REQUESTING MR. TOMPKINS AND HIS WIFE TO PERFORM THE PLASTERING AND PAINTING WORK UNDER THE TERMS OF THIS LEASE, AND IN THE EVENT OF HIS REFUSAL WOULD THIS AGENCY BE PERMITTED TO PERFORM THIS WORK AND DEDUCT THE COST THEREOF FROM THE RENTAL AS PROVIDED IN SECTION 6 OF THE LEASE IN QUESTION?

A COPY OF THE LETTER FROM OUR OFFICE, UNDER DATE OF JUNE 20, REQUESTING THE WORK TO BE PERFORMED BY THE LESSORS, TOGETHER WITH A COPY OF MR. TOMPKINS' REPLY IS ENCLOSED FOR YOUR INFORMATION.

THE COPY OF YOUR LETTER OF JUNE 20 TO THE LESSOR, REFERRED TO IN YOUR SUBMISSION, WAS NOT RECEIVED IN THIS OFFICE.

IT HAS BEEN HELD THAT THE TERM "REPAIR" INCLUDES ANYTHING THAT IS REASONABLY NECESSARY TO KEEP UP THE PREMISES. 54 C.J. 396, AND FOOTNOTES THEREUNDER. ALSO, IT HAS BEEN HELD THAT PAINTING OF PREMISES, INTERIOR OR EXTERIOR, IS ORDINARILY CLASSED AS A REPAIR TO BE MADE BY THE LESSOR. COMP. GEN. 215.

UNDER THE FAMILIAR MAXIM OF CONSTRUCTION "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS" THE EXCEPTION FROM THE LESSOR'S LIABILITY IN PARAGRAPH 6 OF THE LEASE QUOTED IN YOUR LETTER OF CERTAIN REPAIRS ENUMERATED AFTER THE WORD "EXCEPTING" AND THE SPECIFIC PROVISION THAT THE REPAIRS SO EXCEPTED SHALL BE MADE BY THE GOVERNMENT AT ITS EXPENSE IMPLIES THAT ALL OTHER ITEMS OF REPAIR NOT SPECIFICALLY ENUMERATED AMONG SUCH EXCEPTIONS WILL REMAIN THE RESPONSIBILITY OF THE LESSOR. MANNERS V. MOROSCO, 258 FED. 557, 560. MOREOVER, PARAGRAPH 9 OF THE LEASE SPECIFICALLY PROVIDES THAT THE LESSOR SHALL, UNLESS THEREIN SPECIFIED TO THE CONTRARY,"MAINTAIN THE SAID PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THIS LEASE, EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES.'

TO "MAINTAIN" MEANS TO PRESERVE OR KEEP IN AN EXISTING STATE OR CONDITION, AND EMBRACES ACTS OF REPAIR AND OTHER ACTS TO PREVENT A DECLINE, LAPSE, OR CESSATION FROM THAT STATE OR CONDITION, AND HAS BEEN TAKEN TO BY SYNONYMOUS WITH REPAIR. 36 WORDS AND PHRASES, PERMANENT EDITION, 953.

EVEN IF THERE WERE ANY DOUBT OTHERWISE THAT PLASTERING AND PAINTING, NECESSARY BY REASON OF FAIR WEAR AND TEAR, TO KEEP THE PREMISES IN A TENANTABLE CONDITION ARE OBLIGATIONS OF THE LESSOR, THE PRACTICAL CONSTRUCTION PUT UPON THE PROVISIONS OF PARAGRAPHS 6 AND 9 OF THE LEASE BY THE ORIGINAL PARTIES THERETO SHOULD BE GIVEN DUE WEIGHT IN CONSTRUING SAID LEASE. INTERURBAN LAND CO. V. CRAWFORD, 183 FED. 630, 635. UNDER SUCH PRACTICAL CONSTRUCTION SUCH MAINTENANCE AND REPAIR ITEMS AS PAINTING AND PLASTERING ARE CLEARLY OBLIGATIONS OF THE LESSOR.

ACCORDINGLY, ON THE BASIS OF THE FACTS AS REPORTED IN YOUR LETTER YOU ARE ADVISED THAT AS THE COVENANTS BY THE ORIGINAL LESSOR TO REPAIR AND TO MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THE LEASE, WITH CERTAIN EXCEPTIONS, RUN WITH THE LAND AND BIND THE GRANTEE OF THE REVERSION, IT WOULD APPEAR THAT THE FEDERAL WORKS AGENCY IS LEGALLY JUSTIFIED IN REQUESTING THE PRESENT LESSORS TO PERFORM THE PLASTERING AND PAINTING WORK AND IN THE EVENT OF THEIR REFUSAL THE WORK MAY BE PERFORMED AND THE LESSORS CHARGED AS PROPOSED IN YOUR LETTER. 15 COMP. GEN. 1064.