B-40960, APRIL 27, 1944, 23 COMP. GEN. 813

B-40960: Apr 27, 1944

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LEASES - LIABILITY FOR MAINTENANCE OF PREMISES IN TENANTABLE CONDITION WHILE THE RULE OF CAVEAT EMPTOR ORDINARILY APPLIES BETWEEN LANDLORD AND TENANT AND THERE IS NO IMPLIED COVENANT OR WARRANTY THAT THE PREMISES ARE SAFE FOR HABITATION AND OCCUPATION. IT IS THE LESSOR'S OBLIGATION. TO SECURE A PROFESSIONAL EXTERMINATOR TO RID THE PREMISES OF RATS WHEN ORDINARY METHODS HAVE BEEN UNSUCCESSFUL. THAT THE POSTMASTER GENERAL MAY CANCEL THE LEASE IF THE BUILDING BECOMES UNFIT FOR USE AS A POST OFFICE OR CEASE TO PAY RENT UNTIL THE BUILDING IS PUT IN A SATISFACTORY CONDITION. IT IS ADMINISTRATIVELY DETERMINED THAT THE PRESENCE OF RATS HAS MADE THE BUILDING UNFIT FOR USE AS A POST OFFICE. THE RENTAL SHOULD BE WITHHELD UNTIL THE PREMISES SHALL HAVE BEEN PLACED IN A SATISFACTORY CONDITION.

B-40960, APRIL 27, 1944, 23 COMP. GEN. 813

LEASES - LIABILITY FOR MAINTENANCE OF PREMISES IN TENANTABLE CONDITION WHILE THE RULE OF CAVEAT EMPTOR ORDINARILY APPLIES BETWEEN LANDLORD AND TENANT AND THERE IS NO IMPLIED COVENANT OR WARRANTY THAT THE PREMISES ARE SAFE FOR HABITATION AND OCCUPATION, UNDER A LEASE REQUIRING THE LESSOR TO MAINTAIN THE PREMISES IN A TENANTABLE CONDITION DURING THE CONTINUANCE OF THE LEASE, IT IS THE LESSOR'S OBLIGATION, RATHER THAN THAT OF THE GOVERNMENT, TO SECURE A PROFESSIONAL EXTERMINATOR TO RID THE PREMISES OF RATS WHEN ORDINARY METHODS HAVE BEEN UNSUCCESSFUL. WHERE, UNDER A LEASE PROVIDING THAT THE LESSOR SHALL MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION, AND THAT THE POSTMASTER GENERAL MAY CANCEL THE LEASE IF THE BUILDING BECOMES UNFIT FOR USE AS A POST OFFICE OR CEASE TO PAY RENT UNTIL THE BUILDING IS PUT IN A SATISFACTORY CONDITION, IT IS ADMINISTRATIVELY DETERMINED THAT THE PRESENCE OF RATS HAS MADE THE BUILDING UNFIT FOR USE AS A POST OFFICE, AND SHOULD THE LESSOR REFUSE TO TAKE APPROPRIATE STEPS TO RID THE PREMISES OF RATS WHEN CALLED UPON TO DO SO, THE RENTAL SHOULD BE WITHHELD UNTIL THE PREMISES SHALL HAVE BEEN PLACED IN A SATISFACTORY CONDITION, OR THE LEASE MAY BE CANCELLED AS PROVIDED THEREIN.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, APRIL 27, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 23, 1944, AS FOLLOWS:

THE POST OFFICE QUARTERS AT TENAFLY, NEW JERSEY, ARE RETAINED BY VIRTUE OF AN EXTENSION OF A PRIOR LEASE FOR NOT EXCEEDING ONE YEAR FROM OCTOBER 11, 1943, THE CONTRACT INCLUDING EQUIPMENT, HEAT AND WATER, AND BEING SUBJECT IN GENERAL TO THE PROVISIONS OF THE STANDARD FORM OF LEASE, AS MODIFIED FOR USE BY THE POST OFFICE DEPARTMENT.

IT HAS BEEN BROUGHT TO THE DEPARTMENT'S ATTENTION THAT THE LEASED PREMISES ARE INFESTED WITH RATS. THESE RODENTS HAVE DESTROYED CONSIDERABLE MAIL MATTER AND RESORT TO ORDINARY METHODS HAVE NOT BEEN SUCCESSFUL IN RIDDING THE PREMISES OF THESE PESTS.

IT WOULD APPEAR THAT IT WILL BE ADVISABLE TO ENGAGE THE SERVICES OF A PROFESSIONAL EXTERMINATOR, WITH A VIEW TO EXTERMINATING THE RATS, AND I SHALL BE PLEASED TO HAVE YOUR RULING AS TO WHETHER THERE IS ANY APPROPRIATION UNDER THE CONTROL OF THIS DEPARTMENT WHICH MAY BE USED IN ENGAGING THE SERVICES OF SUCH A PROFESSIONAL EXTERMINATOR ON A CONTRACT BASIS.

IF SO, KINDLY ADVISE THE TITLE OF THE APPROPRIATION TO WHICH SUCH EXPENDITURE MAY PROPERLY BE CHARGED.

THE LEASE REFERRED TO IN YOUR LETTER WAS ENTERED INTO ON NOVEMBER 17, 1938, FOR THE TERM BEGINNING OCTOBER 11, 1938, AND ENDING OCTOBER 10, 1943, AT AN ANNUAL RENTAL RATE OF $2,750.

PARAGRAPHS 7 AND 10 OF THE LEASE PROVIDE IN PERTINENT PART AS FOLLOWS:

7. 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 * * *.

10. WHENEVER ANY BUILDING OR PART OF A BUILDING UNDER LEASE BECOMES UNFIT FOR USE AS A POST OFFICE, NO RENT SHALL BE PAID UNTIL THE SAME SHALL BE PUT IN A SATISFACTORY CONDITION BY THE OWNER THEREOF FOR OCCUPATION AS A POST OFFICE, OR THE LEASE MAY BE CANCELLED, AT THE OPTION OF THE POSTMASTER GENERAL.

THE RECORDS OF THIS OFFICE SHOW THAT UNDER DATE OF DECEMBER 28, 1943, THE POST OFFICE DEPARTMENT ACCEPTED THE LESSOR'S OFFER TO EXTEND THE TERMS OF THE ORIGINAL LEASE FOR A PERIOD OF NOT TO EXCEED ONE YEAR FROM OCTOBER 11, 1943, RESERVING UNTO THE GOVERNMENT THE RIGHT TO TERMINATE THE AGREEMENT AT THE END OF ANY CALENDAR MONTH.

THE RULE OF CAVEAT EMPTOR ORDINARILY APPLIES BETWEEN LANDLORD AND TENANT AND THERE IS NO IMPLIED COVENANT OR ANY WARRANTY THAT THE PREMISES ARE SAFE FOR HABITATION AND OCCUPATION. ROTH V. ADAMS 70 N.E. 445; STEVENS V. PIERCE, 23 N.E. 1006; HOPKINS V. MURPHY, 124 N.E. 252; LEECH V. HUSBANDS, 152 ATL. 729; LAWLER V. CAPITAL CITY LIFE INSURANCE COMPANY, INC., 68 F.2D 438; HUGHES V. WESTCHESTER DEVELOPMENT CORPORATION, 77 F.2D 550; 4 A.L.R. 1453; 36 C.J. 43, 47. HOWEVER, IN THE INSTANT CASE THE LESSOR SPECIFICALLY OBLIGATED ITSELF UNDER THE TERMS OF PARAGRAPH 7 OF THE LEASE TO MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION. ADDITION TO THE FOREGOING, UNDER THE PROVISIONS OF PARAGRAPH 10 OF THE LEASE, WHENEVER THE BUILDING BECOMES UNFIT FOR USE AS A POST OFFICE, THE OBLIGATION ON THE PART OF THE GOVERNMENT TO PAY RENT CEASES UNTIL THE BUILDING IS PUT IN SATISFACTORY CONDITION BY THE OWNER FOR OCCUPATION AS A POST OFFICE, OR THE LEASE MAY BE CANCELLED AT THE OPTION OF THE POSTMASTER GENERAL. THERE IS NOTHING IN YOUR LETTER INDICATING ANY NEGLIGENCE ON THE PART OF THE GOVERNMENT'S AGENTS OR EMPLOYEES AS A CONTRIBUTING FACTOR IN THE PRESENCE OF THE RATS AND IT IS STATED IN YOUR LETTER THAT ORDINARY METHODS HAVE NOT BEEN SUCCESSFUL IN RIDDING THE PREMISES OF THE PESTS.

UNDER THE CIRCUMSTANCES, AND IN THE LIGHT OF THE PROVISIONS OF THE LEASE OBLIGATING THE LESSOR TO MAINTAIN THE PREMISES IN A TENANTABLE CONDITION DURING THE CONTINUANCE OF THE LEASE AS EXTENDED, IT IS NO PART OF THE GOVERNMENT'S OBLIGATION TO PERFORM SUCH FUNCTION. THEREFORE, IF IT BE ADMINISTRATIVELY DETERMINED THAT THE PREMISES IN THEIR PRESENT CONDITION ARE UNFIT FOR POST OFFICE QUARTERS AND THAT A PROFESSIONAL EXTERMINATOR IS NECESSARY TO RID THE PREMISES OF THE PESTS, AND THE LESSOR SHOULD REFUSE TO ENGAGE SAME AFTER BEING CALLED UPON TO DO SO, THE RENTAL AS PROVIDED IN THE LEASE SHOULD BE WITHHELD UNTIL THE PREMISES SHALL HAVE BEEN PLACED IN A SATISFACTORY CONDITION BY THE LESSOR FOR OCCUPANCY AS A POST OFFICE, OR THE LEASE MAY BE CANCELLED AS PROVIDED IN PARAGRAPH 10 THEREOF.