Order LA93-02 - Rental Appeal - James Petrie v. Paul & Carl Holmes (Feb 1, 1993)

DECISION AND ORDER LA93-2

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 James Petrie (the Lessee) of Charlottetown, Prince Edward Island, against a decision and order (LD92-129) of the Director of Residential Rental Property ( the Director) both dated the 19th day of November, 1992.

APPEAL HEARD BEFORE:

John L. Blakney, Vice Chairman
Anne McPhee, Commissioner
Clayton Bulpitt, Commissioner

Date of Order: February 1, 1993

Decision and Order

Appearances

James Petrie the Appellant (the Lessee)

Darlene Petrie in support of the Appellant

Laura MacMillan in support of the Appellant

Paul Holmes the Lessor

Carl Holmes the Lessor

Background

The Lessors, Paul and Carl Holmes own a two unit residential dwelling at 6 Ferndale Drive, Sherwood. The Lessee, James Petrie rented the downstairs unit and vacated the apartment on or before August 31, 1992.

Pursuant to section 10(5) of the Rental of Residential Property Act, the Lessors notified the Lessee that they intended to retain the $200.00 security deposit paid to the Lessors by the Lessee on July 1, 1989, plus the accrued interest of $53.69. The reasons for retaining the security deposit were:

2 broken doors, 1 door smashed off hinges, 3 sets of doorstops falling off (and broken), 3 broken panes of glass, apartment must be completely cleaned, including stove, entire apt. needs to be painted.

In response to the notice of intention to retain the security deposit the Lessee filed with the Director of Residential Rental Property on September 18, 1992, an application for a determination of the disposition of the security deposit. The application was supported with the following reasons:

We did not damage the above apartment. Damage mention (sic) in Form 8 was either there when we moved in or occured (sic) when water entered through the walls and caused the doors to swell jam expand and contract - I have on hand a VHF tape showing 4" to 6" of water-* There is a record of this at the Department of Health.

* Please Note 4" - 6" water on basement floor where they were given notice many times over the three year period that we lived there/broken window was there when we moved in other damage also was there or made outside by someone else.

They did not paint the Apartment during the 3 y (sic) period that we lived there.

On November 19, 1992, the Director held a hearing pursuant to Section 4(2)(d) of the Act and both the Lessee and the Lessor were present. On that same day the Director ordered (LD92-129) that:

1. After the appropriate appeal period, the amount of $253.69 shall be returned to the lessor.

On November 26, 1992, the Lessee appealed the decision and order of the Director referenced by the Lessee as order LD 92-129. The Commission heard the appeal on December 8, 1992.

Evidence and Argument

The Lessee argued that the condition of the apartment was primarily due to the constant water problem on the floor of the apartment unit. The dampness caused the door jams to swell making it necessary to use more force than normal to open and close the doors. Overtime, the doors and the door frames and wood moldings around the door casings became damaged. The Lessor was informed by the Lessee of the problem on numerous occasions but the water problem was never corrected and consequently greater damage occurred in trying to make normal use of the doors. The Lessee argued that he was not responsible for damage to the outside of the building, the windows or the dryer. Laura MacMillan appeared before the Commission on behalf of the Lessee and confirmed that there was a problem with water on the floor of the apartment and that it was not a one time occurrence.

Darlene Petrie, wife of the Lessee gave evidence that the apartment was left in a reasonably clean condition, in fact after moving out she returned to the unit to give it a final cleaning. However, she did not clean under the stove, the oven or the cupboards. The Lessee argued that a great deal of the dirt and debris that appeared in Exhibit #11 a composite of pictures submitted into evidence was not their responsibility and that the illustrations were deliberately set up to make the condition of the apartment look worse than it really was. In fact, the Lessee had taken a video of the condition of the apartment but some how the tape was misplaced or erased and therefore could not be presented as evidence to the Commission.

Throughout their tenancy the Lessors failed to maintain the apartment in a proper manner which left the apartment in a state of disrepair. The Lessee did not make a formal complaint to the Director because he was concerned he would be evicted. In general , the rapport between the Lessee and the Lessors was not good. They were asked to vacate the apartment not because of poor condition of the apartment but because one of the Lessors wanted the unit for his daughter and therefore needed time to correct the problem. The Lessors agreed to allow Petrie to keep one-half of the final month rent in lieu of them returning the security deposit. Except for a hasty clean-up the Lessee left the apartment in the same condition they found it when they moved into the unit. A lessee should not be required to renovate a lessor's building.

The Director was wrong to rely on the information provided by Lisa Murphy because she is a friend of the Lessors.

The Lessors found the apartment to be in terrible condition after the Lessee moved out. As illustrated by the pictures the Lessors found the hollow core front door damaged caused by forcing or slamming the door shut. On one of the interior doors there were black scuff marks and a hole in the door at the location of the marks. The window was broken on the inside. The unit was left with dirt and debris on the floors. The pictures are accurate and illustrate the condition of the apartment after the Lessee vacated the unit.

The Lessors argued that they were informed that there was a water problem in the first year of the Lessee's tenancy but to their knowledge the water had never risen above the sub-floor. If the water problem was as bad as they describe they could have moved. However, when they were made aware of it they attempted to fix the problem. Carl Holmes gave evidence that he visited the apartment when the Lessee was not at home in the fall of 1990 and noticed at that time that things were not being kept up and that the unit was getting dirty. Also, from time to time he would hear the Lessee and those using the apartment trying to open and close the front door to the unit with excessive force.

The Lessors agreed that the Lessee could keep one-half the rent owing if the apartment was left in the same condition they found it to be in at the time they moved into the unit. However, it was left in a terrible state and therefore the Lessors believe that they should retain the security deposit.

Decision

Based on the evidence it is apparent to the Commission that there was an ongoing problem with water on the apartment floor and despite the fact that the Lessors tried to repair the problem, it continued. Also, based on the evidence the Lessors were concerned for some time with how the apartment unit was being cared for by the Lessees. Carl Holmes indicated to the Commission that he had visited the apartment in 1990, when the Lessee was not at home and became concerned with the condition of the apartment. The Commission cannot understand why the Lessors did not take any formal action during the time the Lessee occupied the apartment especially when Carl Holmes could hear the banging and slamming of the front door and felt the apartment unit was being abused. The Lessors must accept some responsibility for the final condition of the apartment unit for not taking formal action under the Act that could have prevented continued abuse of the unit. However, the weight given to their responsibility is not great enough to allow the appeal.

The Commission agrees with the Director that if the Lessee was unhappy with the condition of the apartment and the lack of action by the Lessor to correct the water problem he could have taken action by making application to the Director to remedy the situation. The purpose for the legislation is to protect the interests of the lessee and even though the Commission can understand the concern of the Lessee, fear of eviction by the Lessor is not enough argument to warrant inaction and to cause damage to the unit.

The Commission accepts the pictures as evidence of the condition the apartment was left in when vacated by the Lessee. The Commission does not accept the claim by the Lessee that the pictures were staged. There is no question that pulling up the carpets and removing the stove magnified the situation by revealing more dirt and debris then was evident before they were removed. However, the Commission believes that the responsibility for the dirt and debris is that of the Lessee. The Commission finds that the condition of the doors are the result of excessive force and abuse. Even though the continued problem with dampness may have resulted in the swelling of the door frames causing the doors to be difficult to open and close that is little reason to cause the extent of damage to the doors, door stops and moldings found by the Lessors. Abuse of the doors was clearly evident by the scuff marks and holes in some interior doors and the door that was off its hinges. Although the Lessors failed to completely rectify the problems experienced by the Lessee, the Commission finds that the Lessee is responsible for the damage to the doors, door stops and moldings, the poor condition of the stove and the generally poor condition the apartment was left in when they vacated..

Therefore, the Commission can find no compelling reason to allow the appeal and overturn the decision and order 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 James Petrie (the Lessee) of Charlottetown, Prince Edward Island, against a decisions and orders (LD92-129) of the Director of Residential Rental Property ( the Director) both dated the 19th day of November, 1992.

Order

WHEREAS James Petrie (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice Dated the 26th day of November, 1992, against decision and order LD92-129 of the Director of Residential Property dated the 19th day of November, 1992;

AND WHEREAS the Commission heard the appeal at public hearings conducted in the Boardroom of the Commission on the 8th day of December, 1992, after due notice to the Lessee and the Lessors;

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 (LD92-129) of the Director of Residential Rental Property is confirmed.

DATED at Charlottetown, Prince Edward Island this 1st day of February, 1993.

BY THE COMMISSION:

John L. Blakney, Vice Chairman
Anne McPhee, Commissioner
Clayton Bulpitt, Commissioner