MAY 17, 1924, 3 COMP. GEN. 864

MAY 17, 1924, 3 COMP. GEN. 864

LEASES - REPAIRS TO PROPERTY LEASED IN A FOREIGN COUNTRY WHERE THE TERMS OF A LEASE AGREEMENT UNDER WHICH THE UNITED STATES OCCUPIED PROPERTY IN MONTREAL, CANADA, AS AN IMMIGRATION STATION OBLIGATED THE LESSOR TO MAKE "ALL NECESSARY REPAIRS" AND THE PROVISIONS OF THE LAW OF THE CANADIAN PROVINCE IN WHICH MONTREAL IS SITUATED PROVIDE THAT ALL NECESSARY REPAIRS SHOULD BE MADE BY THE LESSOR, EXCEPT CERTAIN LESSER REPAIRS WHICH BECAME NECESSARY DURING THE TENANCY WHICH THE LESSEE IS OBLIGED TO MAKE, THE LEASE IS TO BE CONSTRUED IN THE LIGHT OF THE PROVISIONS OF THE LAW APPLICABLE TO THE PLACE WHERE THE PROPERTY IS SITUATED, AND THE UNITED STATES IS OBLIGATED TO PAY FOR SUCH REPAIRS AS WERE THE LESSEE'S DUTY TO MAKE.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 17, 1924:

THE MONTREAL TRUST CO. HAS REQUESTED A REVIEW OF SETTLEMENT 021113, DATED APRIL 5, 1924, IN WHICH THERE WAS ALLOWED ONLY $355 ON ITS CLAIM FOR $375, REPRESENTING JULY, 1923, RENTAL FOR BUILDING AT 337 LAGAUCHETIERE STREET, WEST, MONTREAL, OCCUPIED BY THE UNITED STATES AS AN IMMIGRATION STATION, THE DIFFERENCE, $20, BEING DEDUCTED TO COVER PAYMENT TO E. C. EATON FOR REPAIRING WALLS OF THE BUILDING IN APRIL, 1923. THE DEDUCTION WAS MADE PURSUANT TO DECISION OF THIS OFFICE DATED SEPTEMBER 24, 1923, REVIEW 5212, ALLOWING THE CLAIM OF E. C. EATON FOR COST OF WORK PERFORMED AND DIRECTING THAT THE AMOUNT THEREOF BE DEDUCTED FROM THE NEXT ACCRUED INSTALLMENT OF RENT.

THE LEASES FOR FISCAL YEARS 1923 AND 1924 CONTAINED A PROVISION AS FOLLOWS:

THAT ALL NECESSARY REPAIRS, AND ALSO ALL TAXES, DUTIES, OR CHARGES LEVIED OR TO BE LEVIED ON SAID PREMISES DURING SAID TERM SHALL BE AT THE CHARGE OF THE SAID PARTY OF THE FIRST PART AND BE DISCHARGED BY SAID PARTY OF THE FIRST PART, INCLUDING WATER TAXES.

THE DECISION OF SEPTEMBER 24, 1923, HELD AS FOLLOWS:

THE BUILDING WAS LEASED FOR USE AS AN IMMIGRATION OFFICE AT MONTREAL, AND THE LESSOR UNQUALIFIEDLY AGREED TO MAKE "ALL NECESSARY REPAIRS.' THE FACT THAT THE REPAIRS WERE RENDERED NECESSARY BY REASON OF LARGE CROWDS OF ALIENS SEEKING ADMISSION TO THE UNITED STATES DOES NOT RENDER WHAT MAY OTHERWISE HAVE BEEN A NECESSARY REPAIR INTO AN UNNECESSARY ONE NOR SHIFT TO THE UNITED STATES THE BURDEN OF REMOVING THE EFFECTS OF THE NECESSARILY HARD USAGE. SUCH BURDEN IS THAT OF THE LESSOR. 2 COMP. GEN. 606.

BOTH THE LESSOR, CLAIMANT HEREIN, AND THE COMMISSIONER OF IMMIGRATION, MONTREAL, CANADA, HAVE AGREED THAT THE REPAIRS TO THE WALLS WAS THE OBLIGATION OF THE LESSEE, THE UNITED STATES, UNDER THE PROVISIONS OF LAW OF THE PROVINCE OF QUEBEC, WHEREIN MONTREAL IS LOCATED, IN REGARD TO WHICH THE COMMISSIONER OF IMMIGRATION STATES AS FOLLOWS:

AS TO THE MATTER OF REPAIRS, SECTION 13 OF THE CIVIL CODE OF LOWER CANADA, WHICH IS THE LAW OF THE PROVINCE OF QUEBEC, READS AS FOLLOWS:

"THE THING MUST BE DELIVERED IN A GOOD STATE OF REPAIR IN ALL RESPECTS, AND THE LESSOR IS OBLIGED DURING THE LEASE TO MAKE ALL NECESSARY REPAIRS, EXCEPT THOSE WHICH THE TENANT IS BOUND TO MAKE, AS HEREINAFTER DECLARED.'

THIS SECTION SHOULD BE READ IN CONNECTION WITH SECTION 1635, WHICH I QUOTE IN PART AS FOLLOWS:

"THE TENANT IS OBLIGED TO MAKE CERTAIN LESSER REPAIRS WHICH BECOME NECESSARY IN THE HOUSE OR ITS DEPENDENCIES DURING HIS OCCUPANCY. THE REPAIRS, IF NOT SPECIFIED IN THE LEASE, ARE REGULATED BY THE USAGE OF THE PLACE. THE FOLLOWING, AMONG OTHERS, ARE DEEMED TO BE TENANT'S REPAIRS, NAMELY, REPAIRS * * * TO THE PLASTERING OF INTERIOR WALLS AND CEILINGS * *

THE TERM "ALL NECESSARY REPAIRS" AS USED IN THE LEASE IS DEFINED BY THE LAWS OF THE PLACE WHERE THE PROPERTY IS SITUATED, AND IN CONSTRUING THE LEASE TO DETERMINE THE OBLIGATIONS TO MAKE REPAIRS BY THE RESPECTIVE PARTIES TO THE LEASE THE DEFINITION IN THE STATUTE OF THE PLACE MUST PREVAIL. THE REPAIRS TO THE WALLS IN THIS CASE APPEAR TO HAVE BEEN OF THE CLASS WHICH THE LAWS OF QUEBEC REQUIRE THE TENANT TO MAKE.

UPON REVIEW THE SETTLEMENT IS MODIFIED, AND THERE IS CERTIFIED DUE CLAIMANT AN ADDITIONAL AMOUNT OF $20. CHECK FOR $355 IS HEREWITH RETURNED TO CLAIMANT AND CHECK FOR $20 WILL ISSUE IN DUE COURSE.