DECISION AND ORDER LA92-3
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 Scott Gregory (the Lessor) of Charlottetown, Prince Edward Island, against a decision and order (Ref. #92-0092) of the Director of Residential Rental Property (the Director) dated May 19, 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
Scott Gregory the Appellant ( the Lessor)
Decision
Background
Mr. Scott Gregory is the Lessor of residential rental property located at 121 Westridge Cres., Charlottetown, Prince Edward Island. The Lessee, Valerie Atteberry resided at the premises until March 29, 1992.
On April 10, 1992, the Lessor formally notified the Lessee that he intended to retain her security deposit by forwarding a completed Notice of Intention to Retain Security Deposit (Form 8). Subsequently, the Lessee filed an Application Re Determination of Security Deposit with the Director, dated April 13, 1992.
On May 13, 1992, the Director held a hearing pursuant to Section 4 (2)(d) and subsequently on May 19, 1992, ordered that:
1. The total amount of the security deposit ($300.00) plus interest ($12.87) must be returned to the lessee.
2. These funds will be returned to the lessee after the appropriate appeal period is complied with."
On June 8, 1992, the Lessor appealed the decision of the Director to the Island Regulatory and Appeals Commission. The Commission heard the appeal on June 25, 1992.
Evidence and Argument
The argument of the Appellant can be summarized as follows:
After the Lessee vacated the premises on March 29,1992, and according to the Lessor locked the key in the apartment, the Lessor and his wife inspected the apartment on March 30 or 31 and found the apartment to be in an unacceptable condition and estimated the damage to be $436.00. A letter from Diane Allen of 24A Woodward Dr. supported the contention that the apartment was in good condition when the Lessee assumed responsibility for the unit.
On April 10, 1992, the Lessor, in accordance with Section 10(5) of the Act served a Notice of Intention to Retain the Security Deposit on the Lessee. However, in order Ref. #92-0092 the Director found that the 10 day notice requirement had lapsed before the notice was served. The Lessor argued before the Commission that the pamphlet Security Deposits, One of a series of brochures on the Rental of Residential Property Act, led him to believe that he did not have to issue the notice until the end of the tenancy or on March 31, 1992. The Lessor indicated that the pamphlet states:
"When the property owner retains all or part of the security deposit, he or she must inform the renter in writing within 10 days of the end of the tenancy"
The Lessor indicated to the Commission that he had not received anything in writing giving formal notice that the lessee was going to vacate the apartment until March 2 or 3 and the Lessee paid her rent for the month of March on March 1, 1992. The Lessor knew there was a period to respond if he wanted to retain the security deposit and read the pamphlet and interpreted the phrase "the end of the tenancy" to mean the end of the month or the time period she paid rent for which ended March 31, 1992. Consequently, he argued if he understood the procedure to be any different he would have served the notice within the required 10 days. The decision of the Director should be overturned.
The Lessee, who did not appear at the hearing, but submitted a written letter to the Commission explaining her case. The Lessee admitted to some limited responsibility for damage and was willing to pay for some of the items but had already spent $125.00 on carpet cleaning. Her letter was supported by a number of letters or written submissions to the Director from people who had witnessed the condition of the apartment while the Lessee resided at the premises. The Lessee also indicated that she has been renting for 9 years and she has never experienced a similar problem.
The Lessee also argued that the Lessor's argument that he misinterpreted the law has no merit and that he failed to meet the time period for serving notice in accordance with Section 10 (5) of the Act.
Decision
After careful consideration of the evidence heard and submitted the Commission has decided to allow the appeal for the following reasons:
The Lessor's interpretation of the pamphlet was a reasonable conclusion to draw, even though there is a notation in the pamphlet that cautions the reader to consult the Act for "an exact statement of law". Despite that notation it is the opinion of the Commission that Section 10(5) does not clearly define what is meant by "delivers up possession of the residential premises".
The Commission finds that the Director based his decision on Section 10(5) of the Act and his conclusion that the 10 day time period had lapsed on his finding that the Lessee had delivered "up possession of the residential premises" on March 30, 1992. However, according to the sworn testimony of the Lessor the Lessee did not give him the keys but left them in the apartment. The conflicting evidence between that which was received by the Director and the sworn evidence of the Lessor heard by the Commission makes it problematic to know exactly when the Lessee had given up responsibility and her right to use the apartment unit. The Commission must conclude that there was no mutual agreement between the Lessee and the Lessor that responsibility for the premises would be given up to the Lessor prior to March 31, 1992. The Lessee paid the rent up until March 31, 1992, and therefore without an agreement the Commission believes the Lessee had the right to the residential unit until March 31, 1992. Even if she had moved from the apartment on March 29 and given the keys to the Lessor on March 30 as she claims, she still had entitlement to the apartment until March 31, 1992. The Commission therefore concludes that the date when the Lessee gave up possession of the unit was March 31, 1992 and not March 30, 1992 as concluded by the Director. Therefore, the Commission finds that the Notice of Intention to Retain Security Deposit issued by the Lessor was served on the Lessee within 10 clear days and therefore valid.
Based on the evidence, it is clear to the Commission that the condition of the apartment was found to be in such a condition and the costs to repair the residential unit warrant the Lessor to retain the security deposit plus interest claim has merit. The Commission therefore allows the appeal.
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 Scott Gregory (the Lessor) of Charlottetown, Prince Edward Island, against a decision and order (Ref. #92-0092) of the Director Of Residential Rental Property (the Director) dated May 19, 1992.
Order
WHEREAS Scott Gregory (the appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice Dated June 8, 1992 against a decision and order (Ref. #92-0092) of the Director of Residential Rental Property (the Director) dated May 19, 1992.
AND WHEREAS the Commission heard the appeal at public hearings conducted in Boardroom of the Commission on June 25, 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 allowed and the Lessor is to retain the security deposit in the amount of $300.00 plus interest.
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