DECISION AND ORDER LA92-2
IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C.58 as amended by 39 Elizabeth II, 1990, C.53.
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by George Crawford (the Lessor) of Charlottetown, Prince Edward Island, against a decision and order (#92-0075) of the Director of Residential Rental Property (the Director) dated April 29, 1992.
APPEAL HEARD BEFORE:
John L. Blakney, Vice Chairman
Myrtle Jenkins-Smith, Commissioner
James Nicholson, CommissionerDate of Order: November 12, 1992
Decision and Order
Appearances
George Crawford the Appellant (the Lessor)
Kathleen Talbot the Respondent (the Lessee)
Mike Morgan in support of the Respondent
Steve Wick in support of the Respondent
Decision
Background
The Lessor, George Crawford owns an apartment building located at 86 Westcomb Crescent, Charlottetown and the Lessee, Kathleen Talbot rented Apartment #11 for about seven months. The entrance to the building is comprised of a lobby with an exterior door and an interior door at the entrance. The lobby is heated.
On March 23, 1992, the Lessee made application to the Director of Residential Rental Property to have the Lessor return the $200.00 security deposit to her. On April 26, 1992, the Director held a hearing pursuant to Section 4(2)(d) of the Act and both the Leesee and the Lessor were present. On April 29, 1992, the Director issued an order:
1) The lessor pay to the lessee the sum of $200.00 plus the accrued interest @ 8.75% for 1991 and 5.5% for 1992 in the amount of $10.58. The total amount owing is $210.58.
2) The payment to be made not later than May 22, 1992.
On May 21, 1992, the Lessor appealed the decision of the Director to the Island Regulatory and Appeals Commission. The Commission heard the appeal on June 22, 1992.
Evidence and Argument
The Lessor informed the Commission that at the time the Lessee was moving out of Apartment #11 and the people who she had assisting her had the moving van backed up to the porch or lobby area. While they had the van backed up to the porch the exterior door was propped opened along with the interior door, leaving the porch or lobby area exposed to the cold weather. The Lessor could see no reason to leave both doors open, especially on such a cold day. Upon his visit to the apartment building he informed the Lessee that the door should be closed and opened only when necessary to move the items through the doorway. Out of concern for the possibility that the pipes could freeze he checked the pipes upon his visit and found them to be warm. The next morning one of the lessees of the building called the Lessor and informed him that the pipes in the lobby had burst and water damage had resulted. The Appellant is convinced that the pipes would not have frozen if the Lessee and the people assisting her to move had kept the door closed and only had opened it when necessary. In his opinion the Lessee was negligent in ignoring his warning and he ended up incurring plumbing and clean-up costs resulting from the water damage.
The Lessor feels that the Director reached the wrong conclusion because he did not visit the site and he did not take into consideration the special circumstances the Lessor was in with respect to getting a bill for the actual costs of the damage. He indicated to the Commission that he was not in the habit of calling his suppliers and received a bill from them once every thirty days. He was not aware that an estimate could be used to complete Form 8 the Notice of Intention to Retain Security Deposit and therefore did not serve notice on the Lessee within the 10 day period required pursuant to Section 10(5) of the Act. The Lessor informed the Lessee by telephone shortly after she moved out of the apartment that her security deposit would be returned in part once the bills for the damage were received.
The Lessee informed the Commission that she moved out of Apartment #11 on Sunday, March 1, 1992 and returned the keys to the Lessor on March 4. On March 18 she called the Lessor to find out where her damage deposit was and he informed her that he was waiting for the bills to come in for the damage she had caused.
The Leesse argued that she was not responsible for the pipes freezing and she had not acted in a negligent manner. She rented a cargo van to move her belongings and the people who assisted her backed the van up to the doorway and used the van to hold the door open. They made three trips, each trip taking about one-half hour. During the second move, the Lessor told the movers to close the doors and they did so as soon as they finished the second load. According to the Lessee, Mr. Crawford had not spoken to her about leaving the doors open but had spoken to the movers, nor did he mention the problem of the pipes when she returned the keys on March 4.
Steven Wicks and Mike Morgan who were two of the three movers assisting the Lessee, indicated to the Commission that considering the short period of time involved in the three loads and especially the third, they cannot understand how the pipes would freeze in such a short period of time. Although, the door was held open to complete the loads they were not open constantly and Mr. Crawford's warnings were not totally ignored.
Decision
After careful consideration of the evidence heard during the hearing the Commission denies the appeal for the following reasons:
Although, the Commission believes that it was somewhat negligent of the movers and in turn the Lessee to leave the door open on what was reported by the parties to the appeal as a very cold day, it is difficult to determine with any certainty that the actions of the Lessee directly caused the pipes to freeze. Although the Lessor indicated that the pipes had not frozen before there is no compelling evidence to convince the Commission that pipes froze as a direct result of the doors being open during the loading of the van. The Commission notes that it was not until the next day that it was reported that the pipes had burst and the opening and closing of the door had not been monitored at all times. In fact, the only time was when the Lessor noticed the door being held opened and discussed the matter with the movers. Although, the Lessor is completely convinced the Lessee is responsible for the pipes freezing, the Commission is not.
Section 10(5) of the Act is clear, if the Lessor is to retain a security deposit then notice must be given "within ten days of the date on which the lessee delivers up possession of the residential premises." The Regulations require that Form 8 Notice of Intention To Retain Security Deposit be served in order to properly inform the Lessee of the landlord's intention to retain the security deposit. There is nothing in the Act or the Regulations that would prohibit the lessor from including in the notice estimates of the damage in order to ensure the time period for notification is met. In the view of the Commission, it is important to the process to notify the lessee that a claim will be made against the security deposit as soon as possible and within the required time period set out in the statute, even if the actual claim is finalized at a later date.
The Commission can find no compelling reason to allow the appeal and overturn the decision of the Director.
IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C.58 as amended by 39 Elizabeth II, 1990, C.53.
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by George Crawford (the Lessor) of Charlottetown, Prince Edward Island, against a decision and order (#92-0075) of the Director of Residential Rental Property (the Director) dated April 29, 1992.
Order
WHEREAS George Crawford (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice Dated May 21, 1992, against a decision and order (Ref. #92-0075) of the Director of Residential Property dated April 29, 1992;
AND WHEREAS the Commission heard the appeal at a hearing conducted in the Boardroom of the Commission on June 22, 1992, after due notice to the Lessor and the Lessee;
AND WHEREAS the Commission has made a decision in accordance with the stated reasons;
NOW THEREFORE, pursuant to the Rental of Residential Property Act;
IT IS ORDERED THAT the appeal is denied and the decision of the Director of Residential Rental Property (Ref. #92-0075) is confirmed.
DATED at Charlottetown, Prince Edward Island this 12th day of November, 1992.
BY THE COMMISSION:
John L. Blakney, Vice Chairman
Myrtle Jenkins-Smith, Commissioner
James Nicholson, Commissioner
