B-31358, JANUARY 6, 1943, 22 COMP. GEN. 599

B-31358, JANUARY 6, 1943, 22 COMP. GEN. 599

LEASES - APPORTIONMENT OF RENT AND FRACTIONAL PERIOD COMPUTATIONS WHILE NO ADJUSTMENT IN RENT OR OTHER CHARGES IS ORDINARILY AUTHORIZED IN THE EVENT OF THE TERMINATION OF A TENANCY OR CHANGE IN RENTAL RATE BETWEEN RENT DAYS WHERE THE RENTAL OR OTHER CHARGES ARE PAYABLE IN ADVANCE UNLESS THE CONTRACT OR LEASE PROVIDES OTHERWISE, AN APPORTIONMENT OF RENT CHARGES IS AUTHORIZED WHERE THE GOVERNMENT, AS LESSOR, ANTICIPATING ITS NEED FOR POSSESSION OF A PORTION OF THE LEASED PREMISES BETWEEN RENT DAYS, EFFECTS AN ARRANGEMENT, PRIOR TO THE RENT DUE DATE, WHEREBY PAYMENT OF THE MONTH'S RENTAL IS WITHHELD BY THE LESSEE SUBJECT TO LATER ADJUSTMENT TO CONFORM TO THE REDUCED RENTAL WHICH WAS TO BECOME EFFECTIVE UPON THE SURRENDER OF THE INVOLVED PORTION OF THE PREMISES. IN COMPUTING RENTAL FOR FRACTIONAL PARTS OF A MONTH WHERE THE OCCUPANCY UNDER A RENTAL AGREEMENT AND THE RENTAL RATE IS ON A MONTHLY BASIS AND THE PERIOD INVOLVED INCLUDES PARTS OF TWO CALENDAR MONTHS CONTAINING A DIFFERENT NUMBER OF DAYS, THE NUMERATOR OF THE FRACTION IS THE ACTUAL NUMBER OF DAYS OF OCCUPANCY IN THE FRACTIONAL PERIOD AND THE DENOMINATOR IS THE ACTUAL NUMBER OF DAYS IN THE RENTAL MONTH, OR IN OTHER WORDS, THE NUMBER OF DAYS IN THE MONTH IN WHICH THE BILLING PERIOD EGINS; THUS, IF THE BILLING DATE BEGINS IN A 30 DAY CALENDAR MONTH, THE DENOMINATOR IS 30 EVEN THOUGH THE PERIOD COVERED BY THE BILL SHOULD EXTEND INTO A 31 DAY CALENDAR MONTH. IN COMPUTING RENTAL FOR A FULL MONTH WHERE THE RENTAL RATE HAS BEEN ALTERED BETWEEN RENT DAYS OR PAYMENT DATES UNDER A RENTAL AGREEMENT WHERE THE RENTAL RATE IS ON A MONTHLY BASIS AND THE PERIOD INVOLVED INCLUDES PARTS OF TWO CALENDAR MONTHS CONTAINING A DIFFERENT NUMBER OF DAYS, THE DENOMINATOR FOR EACH FRACTIONAL PORTION OF THE PERIOD OF OCCUPANCY UNDER THE TWO RENTAL RATES IS THE ACTUAL NUMBER OF DAYS IN THE RENTAL MONTH, OR IN OTHER WORDS, THE NUMBER OF DAYS IN THE MONTH IN WHICH THE BILLING PERIOD BEGINS, AND THE NUMERATOR FOR EACH FRACTIONAL PORTION IS THE ACTUAL NUMBER OF DAYS OF OCCUPANCY UNDER EACH ONE OF THE TWO RENTAL RATES.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, JANUARY 6, 1943:

I HAVE YOUR LETTER OF DECEMBER 22, 1942, AS FOLLOWS:

REFERENCE IS MADE TO THE RENTAL AGREEMENT ENTERED INTO BETWEEN THE GRAND PLAZA PARKING AREA, INC., AND THE TREASURY DEPARTMENT, UNDER DATE OF NOVEMBER 15, 1937, AS AMENDED, CONTRACT NO. TCC-1202, WHICH PROVIDES FOR THE USE FOR PARKING PURPOSES OF SQUARE 258, AND A PORTION OF SQUARE 257, WASHINGTON, D.C., AT A RENTAL RATE OF $3,800.00 PER MONTH.

CUSTODY AND CONTROL OF THIS PROPERTY WAS TRANSFERRED FROM THE TREASURY DEPARTMENT TO THE PUBLIC BUILDINGS ADMINISTRATION ON APRIL 3, 1940.

THE LAST AMENDMENT TO THIS CONTRACT, WHICH OCCURRED ON JUNE 5, 1942, PROVIDED FOR THE VACATION OF A PORTION OF THE PARKING LOT AT 12 O CLOCK, MIDNIGHT, E.W.T., JUNE 7, 1942, IN CONSIDERATION OF A REDUCTION IN THE EXISTING RENTAL RATE FROM $4,050.00 PER MONTH TO $3,800.00 PER MONTH. THIS AMENDMENT WAS NECESSITATED BY THE GOVERNMENT'S NEED FOR POSSESSION OF A PORTION OF THE LOT.

UNDER THE TERMS OF THE RENTAL AGREEMENT, AS AMENDED, RENTAL IS PAYABLE IN ADVANCE; THAT IS TO SAY, ON THE FIFTEENTH DAY OF EACH MONTH AS RENT IN ADVANCE FOR THE ENSUING MONTH. THE LAST AMENDMENT TO THE CONTRACT PROVIDES THAT THE REDUCTION IN RENTAL RATE SHALL BECOME EFFECTIVE ON JUNE 8, 1942, WHICH DATE OCCURS DURING THE COURSE OF A RENTAL TERM.

ON JUNE 1, 1942, THE GRAND PLAZA PARKING AREA, INC., SUBMITTED A CHECK IN THE AMOUNT OF $3,993.54 AS RENTAL FOR THE PERIOD MAY 15 TO JUNE 14, 1942.

THE METHOD OF COMPUTATION BY THE LESSEE IS AS FOLLOWS:

CHART

MAY 15 TO JUNE 7, 1942, AT THE OLD RATE,

$4,050.00; OR 24/31 OF $4,050.00 -------- $3,135.48

JUNE 8 TO JUNE 14, 1942, AT THE NEW RATE,

$3,800.00; OR 7/31 OF $3,800.00 --------- 858.06

TOTAL ------------------------------ $3,993.54

THE DENOMINATOR USED IN THIS METHOD IS THE ACTUAL NUMBER OF DAYS OCCURRING FROM MAY 15, 1942, TO JUNE 14, 1942, INCLUSIVE, AND DOES NOT RECOGNIZE THE FACT THAT THERE ARE THIRTY-ONE CALENDAR DAYS IN THE MONTH OF MAY AND THIRTY CALENDAR DAYS IN THE MONTH OF JUNE.

THE PUBLIC BUILDINGS ADMINISTRATION HAS COMPUTED THE RENTAL DUE ON THE BASIS OF THE USUAL CALENDAR MONTH METHOD AS FOLLOWS:

CHART

17 DAYS AT THE OLD RATE, $4,050.00, IN THE MONTH OF MAY,

1942; OR 17/31 OF $4,050.00 -------------------------- $2,220.97

7 DAYS AT THE OLD RATE, $4,050.00, IN THE MONTH OF JUNE,

1942; OR 7/30 OF $4,050.00 --------------------------- 945.00

7 DAYS AT THE NEW RATE, $3,800.00, IN THE MONTH OF JUNE,

1942; OR 7/30 OF $3,800.00 --------------------------- 886.67

TOTAL ----------------------------------------------- $4,052.64

BY LETTER DATED JUNE 29, 1942, THE GRAND PLAZA PARKING AREA, INC. WAS REQUESTED TO FORWARD THE AMOUNT OF $59.10 REPRESENTING THE DIFFERENCE BETWEEN $4,052.64 AND THE CORPORATION'S CHECK FOR $3,993.54. IN RESPONSE TO THIS REQUEST, THE PUBLIC BUILDINGS ADMINISTRATION HAS RECEIVED A LETTER DATED JULY 9, 1942, SIGNED BY B. WOLLBERG, PRESIDENT OF THE GRAND PLAZA PARKING AREA, INC., PROTESTING THE REQUESTED PAYMENT OF THE ADDITIONAL AMOUNT, AND ASKING THAT THE CORPORATION'S CHECK FOR $3,993.54 BE ACCEPTED AS FULL PAYMENT FOR THE PERIOD MAY 15 TO JUNE 14, 1942, INCLUSIVE. MR. WOLLBERG POINTS OUT IN HIS COMMUNICATION THAT THE AMOUNT OF $4,052.64 IS GREATER THAN THE ORIGINAL CONTRACT RATE OF $4,050.00 PER MONTH, AND THAT HE BELIEVES THE CORPORATION CANNOT BE REQUIRED TO PAY AN AMOUNT LARGER THAN THIS CONTRACT RATE.

IN VIEW OF THE FOREGOING, THE MATTER IS REFERRED TO YOU FOR A DECISION AS TO WHETHER OR NOT THE GRAND PLAZA PARKING AREA, INC., IS REQUIRED TO PAY THE ADDITIONAL AMOUNT REQUESTED BY THE PUBLIC BUILDINGS ADMINISTRATION. IT WILL BE APPRECIATED, ALSO, IF YOU WILL CLARIFY THE METHOD OF COMPUTING RENTALS DUE THE UNITED STATES UNDER CIRCUMSTANCES WHEREBY A RENTAL CONTRACT IS AMENDED BETWEEN RENT DAYS OR IS TERMINATED BETWEEN RENT DAYS WHEN TWO MONTHS CONTAINING A DIFFERENT NUMBER OF DAYS ARE INVOLVED.

YOUR ATTENTION IS INVITED TO THE DECISION OF THE ASSISTANT COMPTROLLER OF THE TREASURY IN 11 COMP. DEC. 494, WHICH HOLDS (QUOTING FROM THE HEADNOTES):

"THE WORD "MONTH" WHEN USED IN A CONTRACT, IN THE ABSENCE OF AN EXPRESS INTENTION TO THE CONTRARY, MEANS A "CALENDAR" MONTH; AND A "CALENDAR MONTH" IS A MONTH AS EXPRESSED IN THE CALENDAR REGARDLESS OF THE NUMBER OF DAYS IT MAY CONTAIN.' THIS STATEMENT OF THE RULE IS SUPPORTED BY THE FOLLOWING CASES:

GUARANTY TRUST CO. V. GREENOUGH SPRINGS, ETC. R. CO., 139 U.S. 137; SCHEETS V. SELDEN'S LESSEE, 69 U.S. 177; HUNT V. WICKLIFFE, 27 U.S. 201; COMMONWEALTH V. CHAMBRE, 4 U.S. 143.

A COPY OF THE GRAND PLAZA PARKING AREA, INC., RENTAL AGREEMENT, DATED NOVEMBER 15, 1937, TOGETHER WITH COPIES OF ALL AMENDMENTS, IS ON FILE IN YOUR OFFICE, AND THERE IS TRANSMITTED HEREWITH A CARBON COPY OF THE PUBLIC BUILDINGS ADMINISTRATION'S LETTER OF JUNE 29, 1942, TOGETHER WITH THE ORIGINAL LETTER OF JULY 9, 1942, FROM MR. WOLLBERG.

THE LEASE REFERRED TO IN YOUR LETTER WAS ENTERED INTO ON NOVEMBER 15, 1937, FOR USE AS AN AUTOMOBILE PARKING LOT "BY THE MONTH COMMENCING ON THE 15TH DAY OF NOVEMBER A.D. 1937, AT AND FOR THE MONTHLY RENTAL OF $4,676.00 PAYABLE IN ADVANCE; THAT IS TO SAY, ON THE 15TH DAY OF EACH MONTH AS RENT IN ADVANCE FOR THE ENSUING MONTH" AND THE LEASE RECITES THAT THE LESSEE "HAS AGREED TO TAKE, AND DOES HEREBY TAKE AND HOLD, THE SAID PREMISES AS TENANT BY THE MONTH AT THE SAID RENT, PAYABLE AS AFORESAID.'

IT APPEARS THAT CERTAIN PARTS OF THE LEASED SPACE HAVE BEEN RELINQUISHED AND VACATED BY THE LESSEE FROM TIME TO TIME AT A CORRESPONDING REDUCTION IN THE RENTAL RATE AS EVIDENCED BY AMENDMENTS TO THE ORIGINAL LEASE IN THE FORM OF PROPOSAL AND ACCEPTANCE AGREEMENTS. THE LAST AMENDMENT TO THE SAID LEASE (PROPOSAL DATED JUNE 2, 1942, AND ACCEPTANCE DATED JUNE 5, 1942) PROVIDING FOR THE VACATING BY THE LESSEE OF A CERTAIN PORTION OF THE LEASED PREMISES AS DESCRIBED IN LESSEE'S PROPOSAL OF JUNE 2, 1942, FOR USE IN CONNECTION WITH THE ESTABLISHMENT OF A BUS LOOP AND A REDUCTION OF THE RENTAL RATE FROM $4,050 PER MONTH TO $3,800 PER MONTH, EFFECTIVE BEGINNING JUNE 8, 1942.

IN THE DECISION 8 COMP. GEN. 275, THERE IS SET FORTH A METHOD OF COMPUTATION FOR FRACTIONAL PARTS OF A MONTH WHERE THE OCCUPANCY UNDER THE RENTAL AGREEMENT AND THE RENTAL RATE WAS ON A MONTHLY BASIS AND THE PERIOD INVOLVED INCLUDED PARTS OF TWO MONTHS CONTAINING A DIFFERENT NUMBER OF DAYS. THAT CASE INVOLVED THE STORAGE OF AUTOMOBILES SEIZED BY THE GOVERNMENT UNDER AN AGREEMENT PROVIDING FOR STORAGE OF SEIZED AUTOMOBILES AT THE RATE OF $5 PER MONTH PER AUTOMOBILE; AND THERE WAS FOR CONSIDERATION THE AMOUNT OF RENT DUE FOR STORAGE FOR THE PERIOD BEGINNING ON JUNE 10 AND ENDING ON SEPTEMBER 2, 1928, WHEN SAID AUTOMOBILE WAS SOLD BY THE UNITED STATES MARSHAL. IN THAT DECISION IT WAS SAID:

IN REPLY YOU ARE ADVISED THAT IN A CASE OF STORAGE AS SET FORTH IN YOUR REQUEST, FROM JUNE 10 TO AUGUST 10 WOULD BE TWO MONTHS, AND FROM AUGUST 10 TO SEPTEMBER 2 (EXCLUDING THE LAST DAY) WOULD BE 23 DAYS (22 DAYS IN AUGUST AND 1 DAY IN SEPTEMBER). HENCE THE COMPUTATION WOULD BE 2 23/31 X $5 EQUALS $13.71.

IN THE DECISION OF MAY 5, 1931, A-35772, INVOLVING THE COMPUTATION OF STORAGE CHARGES FROM FEBRUARY 6 TO MARCH 3, 1931, AND FROM OCTOBER 17, 1930, TO FEBRUARY 6, 1931, ON A HUDSON COACH IN TWO DIFFERENT GARAGES UNDER SEPARATE CONTRACTS, IT WAS HELD AS FOLLOWS:

THE STORAGE IN THE CENTRAL GARAGE WAS PURSUANT TO CONTRACT NO. J 4031 FOR DEAD STORAGE AT $5 PER MONTH, FRACTIONAL PARTS OF THE MONTH TO BE CALCULATED UPON A PRO RATA BASIS, THE DATE THE CAR IS SOLD TO BE EXCLUDED. IT IS THE ESTABLISHED RULE IN THE UNITED STATES THAT THE WORD "MONTH" WHEN USED WITHOUT QUALIFICATION, MEANS A CALENDAR MONTH AND IS TO BE COMPUTED, NOT BY COUNTING DAYS, BUT BY LOOKING AT THE CALENDAR, AND RUNS FROM A GIVEN DAY IN ONE MONTH TO A DAY OF THE CORRESPONDING NUMBER IN THE NEXT MONTH, WITH A CERTAIN EXCEPTION NOT HERE INVOLVED. 38 CYC. 312. UNDER THIS RULE ONE MONTH'S STORAGE WHICH BEGAN ON FEBRUARY 6, 1931 WOULD EXPIRE AT THE CLOSE OF BUSINESS MARCH 5, 1931, OR A PERIOD OF 28 DAYS ONLY. ACCORDINGLY, IF THE CAR STORED IN THE CENTRAL GARAGE WAS SOLD MARCH 3, THE STORAGE WOULD BE COMPUTED AT 25/28 OF $5, OR $4.46, BUT IF NOT SOLD UNTIL MARCH 4, THE STORAGE WOULD BE 26/28 OF $5, OR $4.64

THE STORAGE IN THE MERCHANTS GARAGE WAS PURSUANT TO CONTRACT TP-4136 FOR DEAD STORAGE AT $5 PER MONTH, FRACTIONAL PARTS OF A MONTH TO BE AT 20 CENTS PER DAY. THE STORAGE SHOULD BE COMPUTED AS THREE MONTHS FROM OCTOBER 17, 1930, TO JANUARY 16, 1931, $15, AND 21 DAYS FROM JANUARY 17 TO FEBRUARY 6, INCLUSIVE, AT 20 CENTS A DAY, OR $4.20, A TOTAL OF $19.20.

SEE, ALSO, DECISION OF DECEMBER 18, 1935, A-13067, SETTING UP A METHOD AND PROCEDURE FOR THE BILLING OF THE VARIOUS AGENCIES OF THE GOVERNMENT FOR TELEPHONE SERVICE ON A MONTHLY BASIS IN WHICH IT IS STATED---

(A) WHERE THE RATES IN THE CONTRACT ARE SPECIFIED AS MONTHLY AND THE SERVICE CONTINUES FROM ANY DATE IN ONE CALENDAR MONTH TO THE SAME DATE IN THE CALENDAR MONTH NEXT FOLLOWING, THE BILL WILL BE STATED AT THE FULL MONTHLY RATE. FOR EXAMPLE, SERVICE FOR OCTOBER 25 TO NOVEMBER 24, INCLUSIVE.

(B) WHERE THE RATES IN THE CONTRACT ARE SPECIFIED AS MONTHLY AND THERE IS NO STIPULATION IN THE CONTRACT REQUIRING THE USE OF A 30-DAY MONTH IN COMPUTING FRACTIONAL SERVICE CHARGES, NOR INCLUSION THEREIN OF ANY REFERENCE TO THE RULE AND PRACTICE APPLICABLE TO CUSTOMERS GENERALLY, THE BILL FOR THE FRACTIONAL PART OF THE MONTH SHOULD BE STATED ON THE BASIS OF THE ACTUAL NUMBER OF DAYS IN THE MONTH IN WHICH THE SERVICE IS RENDERED. FOR EXAMPLE, SERVICE COMMENCING OCTOBER 11, BILLED TO REGULAR (ROTATING) BILLING DATE OCTOBER 25 WOULD BE COMPUTED AT 14/31 TIMES THE MONTHLY RATE, WHILE A SIMILAR BILLING FOR NOVEMBER WOULD BE COMPUTED AT 14/30 TIMES THE MONTHLY RATE. THE SAME RULE WILL ALSO APPLY WHEN TELEPHONE SERVICE IS DISCONTINUED PRIOR TO THE END OF THE REGULAR MONTHLY BILLING PERIOD. * *

HENCE, AS INDICATED ABOVE, UNDER THE ESTABLISHED PRACTICE AND PROCEDURE OF THIS OFFICE IN COMPUTING FRACTIONAL CHARGES UNDER CONTRACTS OR LEASES FOR SERVICES OR EQUIPMENT PROVIDING FOR MONTHLY PAYMENTS IN ARREARS AND SUBJECT TO APPORTIONMENT OF CHARGES OR RENTS WHEN SUCH A CONTRACT OR LEASE EXPIRES OR IS AMENDED BETWEEN RENT DAYS OR PAYMENT DATES INVOLVING TWO MONTHS CONTAINING A DIFFERENT NUMBER OF DAYS, UNLESS THE CONTRACT OR LEASE PROVIDES OTHERWISE, THE BILL FOR THE FRACTIONAL MONTH SHOULD BE COMPUTED ON THE BASIS OF THE ACTUAL NUMBER OF DAYS IN THE MONTH IN WHICH THE SERVICE IS RENDERED OR THE EQUIPMENT FURNISHED, THAT IS TO SAY, IF THE MONTH IN WHICH THE BILLING DATE BEGINS IS A 30 DAY MONTH, THE DENOMINATOR FOR COMPUTING THE FRACTIONAL RENT OR CHARGES IS 30 EVEN THOUGH THE PERIOD COVERED BY THE BILL SHOULD EXTEND INTO A 31 DAY MONTH, AND, BY THE SAME TOKEN, IF THE MONTH IN WHICH THE BILLING DATE BEGINS IS A 31 DAY MONTH THE DENOMINATOR FOR COMPUTING THE FRACTIONAL RENT OR CHARGES IS 31 EVEN THOUGH THE PERIOD COVERED BY THE BILL SHOULD EXTEND INTO A 30 DAY MONTH.

WHERE THE RENTAL OR OTHER CHARGES ARE PAYABLE IN ADVANCE, NO ADJUSTMENT OF RENT IS AUTHORIZED IN THE EVENT OF TERMINATION OF THE TENANCY BETWEEN RENT DAYS IN THE ABSENCE OF A PROVISION IN THE LEASE STIPULATING OTHERWISE. 8 COMP. GEN. 643. AND ORDINARILY THE SAME RULE WOULD BE APPLICABLE WITH RESPECT TO A CHANGE IN RENTAL RATE BETWEEN RENT DAYS. HOWEVER, IN THE PRESENT CASE, IT IS UNDERSTOOD THAT SOMETIME PRIOR TO THE DUE DATE FOR THE PAYMENT OF RENT FOR THE MONTH BEGINNING MAY 15, 1942, IT WAS ANTICIPATED THAT THE UNITED STATES WOULD REQUIRE POSSESSION OF AN ADDITIONAL AREA OF THE LEASED LAND AND THAT, BECAUSE OF THE UNCERTAINTY AS TO WHEN SUCH POSSESSION WOULD BE REQUIRED, IT WAS ARRANGED FOR THE LESSEE TO WITHHOLD THE PAYMENT OF RENT WHICH BECAME DUE AND PAYABLE ON MAY 15, 1942, AND THE LEASING PARTIES AGREED TO MAKE AN ADJUSTMENT OF RENT TO BECOME EFFECTIVE FOLLOWING THE SURRENDER OF THE AREA INVOLVED BY THE LESSEE. SUCH AN ARRANGEMENT WAS IN THE INTEREST OF THE UNITED STATES BECAUSE, IN THE ABSENCE THEREOF, THE LESSEE, UPON THE PAYMENT OF RENT FOR THE MONTH BEGINNING MAY 15, 1942, WOULD HAVE ACQUIRED THE RIGHT TO OCCUPY THE ENTIRE AREA COVERED BY THE LEASE AS AMENDED UNTIL AND INCLUDING JUNE 14, 1942, WITHOUT ANY RIGHT IN THE GOVERNMENT TO DEMAND POSSESSION PRIOR TO THAT DATE--- THERE BEING FOR NOTING IN THIS CONNECTION THE PROVISION IN SAID LEASE TO THE EFFECT THAT THE LESSEE "SHALL BE ENTITLED TO NOT LESS THAN THIRTY DAYS' NOTICE TO VACATE THE * * * PREMISES.' CONSEQUENTLY, THE RENTAL FOR THE MONTH BEGINNING MAY 15 AND ENDING JUNE 14, 1942, IS FOR APPORTIONING BETWEEN THE TWO RATES INVOLVED; AND AS THAT PERIOD CONTAINS 31 DAYS, I HAVE TO ADVISE THAT THE RENTAL DUE THEREFOR SHOULD BE COMMUTED IN ACCORDANCE WITH THE METHOD FOLLOWED BY THE LESSEE, THAT IS TO SAY, FROM MAY 15 TO JUNE 7, 1942, AT THE OLD RATE, 24/31 OF $4,050 OR $3,135.48, AND FROM JUNE 8 TO JUNE 14, 1942, AT THE NEW RATE, 7/31 OF $3,800 OR $858.06, THE SAID LESSEE BEING OBLIGATED TO PAY THE TOTAL OF $3,993.54 FOR SUCH PERIOD.