DECISION AND ORDER LA 92001
IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.1. 1988,Cap. R-13.1;
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Roger MacLeod (the lessee) of Charlottetown, Prince Edward Island, against a decision and order (#92-0053) of the Director of Residential Rental Property dated April 6, 1992.
APPEAL HEARD BEFORE:
John L. Blakney, Vice Chairman
Myrtle Jenkins-Smith, Commissioner
James Nicholson, CommissionerDate of Order: September 23, 1992
Decision and Order
Appearances
Roger MacLeod Appellant
Cecil Trainor Lessor
Decision
Background
The lessor, Cecil Trainor acquired the residential premises located at 50 - 52 Hillsborough Street, Charlottetown, Prince Edward Island approximately 13 to 14 years ago. After acquiring the property Cecil Trainor completely renovated the property under Rural Residential Assistance Program (R.R.A.P.), a federal program for improving existing housing conditions. Roger MacLeod rented a one bedroom apartment at 52 Hillsborough Street after the renovations were made and continued to rent the same apartment until October, 1991.
On October 3, 1991 the lessor served a notice to the Lessee to vacate the premises "on or before Nov. 1/91". The reasons of the notice to vacate were as follows:
"to (sic) many drunken partys (sic) on weekends;
excessive noise after midnight;
human waste left in the hallway."
Also the notice to vacate indicated that the apartment was in need of repair and that it would require two to three months to repair.
The lessor filed an Application for Enforcement of Statutory or Other Conditions of Rental Agreement on February 21, 1992, with the Director of Residential Rental Property seeking a finding by the director that rent is owed and that a determined amount be paid.
After conducting an investigation and holding a hearing on March 13, 1992 with the lessor and the lessee the Director of Residential Rental Property issued an order (#92-0053) dated March 16, 1992 in which he dealt with the matters raised in the application. The Director noted in his order that:
"Although the unit may have been in a state which needed repair, the lessee did not make application to the Director to the effect that Statutory Condition 6.1 under the Act (Condition of premises) had been contravened."
Evidence and Argument
Roger MacLeod (the lessee) lived in the apartment located at 52 Hillsborough Street for 10 to 11 years and lived there because it is in a good location and the rent was cheap. The apartment unit has been in need of repair and if he had known the lessor was not going to renovate the premises the lessee would have moved out of the apartment in June. The appellant argued that he and the lessor had reached an agreement that while he was living at his summer cottage during the months of June, July, August and September that the lessor would renovate the rental unit. Consequently, Mr. MacLeod paid to the lessor rent for the four months. Upon his arrival back to the apartment, on September 30, 1991, the lessee found the apartment to be in very bad shape and that the lessor had not renovated the apartment as agreed. The Appellant presented to the Commission pictures illustrating the poor condition of the apartment unit.
The lessee received a notice to vacate the premises from the lessor on October 6, 1992. Mr. MacLeod indicated in his Notice of Appeal that he vacated the premises on October 4, 1992 but that it took "several days to move his personal belongings back to the cottage". He "obtained another apartment and moved in on October 25, 1991".
The appellant, Mr. MacLeod believes that the Director of Residential Rental Property was wrong when he concluded that there was an amount owing the lessor for 25 days in the month of October, the period in which the lessee had occupied the premises at 52 Hillsborough Street and that the Commission should allow the appeal.
The arguments presented by the lessor can be summarized as follows:
Cecil Trainor acquired the property about 13 to 14 years ago and completely renovated the building under the former R.R.A.P. The Appellant was one of the first people to move in after the renovations. The appellant's mother also lived in the apartment but once she passed away two or three years ago the situation in the apartment began to deteriorate. Mr. Trainor received complaints about parties and noise and in September, 1991 another tenant of the building told him that if things did not improve that she would move.
Consequently, on October 3, 1991 he served notice in writing to Roger MacLeod to vacate the apartment "on or before November 1, 1991". Mr. MacLeod continued to use the apartment between the period October 3, 1991 and October 30, 1991 in fact on one or two occasions he had to have the police warn the lessee during that period. During the weekend of October 21, 1991 the premises was occupied by Mr. MacLeod.
Although, the lessor had not made any repairs to the apartment during the four month period that the lessee lived at his summer cottage he did indicate that the premises needed repair, repairs that for the most part were the result of the lessee's abuse of the apartment unit. The renovations were made during the months of November and December and the unit was rented again on January 1, 1992.
The lessor had not entered into any agreement with Mr. MacLeod to renovate the apartment during the summer of 1991, although he night have mentioned or talked about the possibility of renovating the premises.
Mr. Trainor argued that the lessee had used the apartment for the entire month of October. The lights were not shut off until October 30, 1991. Therefore, the Commission should not only dismiss the appeal but alter the amount of rent owing as ordered by the Director (Decision No. 92-0053) to $320.
Decision
Based on the evidence presented by both parties it is unclear to the Commission what the understanding was between the lessor and lessee with respect to renovating the apartment while Mr. MacLeod resided at his summer cottage during the months of June, July, August and September of 1991. It is clear that renovations were required and that the lessee had some understanding that the renovations would be made during his absence from the cottage. The appellant indicated that he had paid rent for four months on the understanding that the renovations would be made. The Commission concludes that if the appellant upon his return to the apartment found the premises in a poor state of repair then he should have made application to the Director of Residential Rental Property notifying the Director of the contravention of Section 6. 1. of the Rental of Residential Property Act; especially when there was no written agreement in place committing the lessor to renovating the apartment during that period of time.
The Commission can find no conclusive evidence that there is a relationship between the fact that the lessor failed to renovate the apartment unit while the lessee took up residence at his cottage and the payment of rent owing for the month of October, 1991. The matter before the Commission is whether or not the lessor is owed rent for the month of October and if there is an amount owing what is the amount. It is clear from the evidence that the lessee occupied the apartment and continued to utilize the apartment for the month of October either to reside or over time remove his personal belongings from the premises. However, it is also clear from the evidence that the lessor did not give notice to vacate the premise until October 3, 1991. Such notice must be given pursuant to Section 11(2) of the Rental of Residential Property Act at least one month before the due date for payment of rent. Consequently, the lessor failed to meet the requirements of the Act in giving notice on October 3 and expecting the lessee to vacate the premises by November 1, 1991. Although the evidence is unclear as to exactly when the lessee vacated the apartment at 52 Hillsborough Street, the Commission concludes that it is reasonable to think that the lessee did vacate the premises by October 25, 1991, since that was the date he took up residence at another apartment.
An examination of the Order (#92-0053) by the Director of Residential Rental Property reveals that the Director based the amount of rent owing on two factors: the number of days the lessee occupied or used the apartment during the month of October and the monthly rental rate of $320. The Commission concludes that the Director reached his decision based on the following facts: the lessee had not paid rent for the month of October, the lessee had not filed an application to complain about the condition of the apartment nor did the lessor file a notice to vacate the premises within the required time to require Mr. MacLeod to vacate the premises by November 1. Since both parties did not file applications in accordance with the Act and Mr. MacLeod used the apartment for part of the month of October, it appears to the Commission that the Director decided that requiring the lessee to compensate the lessor for the number of days that he used the apartment up until he took up residency elsewhere, was fair and reasonable.
The Commission can find no compelling reason to allow the appeal and over the decision of the Director.
Order
WHEREAS Roger MacLeod (the appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice Dated the 6th day of April, 1992, against a decision of the Director of Residential Rental Property;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on April 24, 1992 after due notice;
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 and order of the Director of Residential Rental Property (Ref. #92-0053) is confirmed.
DATED at Charlottetown, Prince Edward Island this 23rd day of September, 1992.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner
James Nicholson, Commissioner