DECISION AND ORDER LA93-3 IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C.13.1
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Scott Parsons (the Lessee) of Charlottetown, Prince Edward Island, from a decision and order (No. LD92-0131) of the Director of Residential Rental Property under the authority of the Rental of Residential Property Act.
APPEAL HEARD BEFORE:
Linda Webber, Chairman
Date of Hearing: December 14, 1992
Clayton Bulpitt, Commissioner
Anne McPhee, CommissionerDate of Order: February 1, 1993
Decision and Order
Participants
Scott Parsons the Appellant (the Lessee)
Property Care & Rental Inc., the Respondent (the Lessor)
as represented by Calvin Mol
Decision
Background The Lessee occupied premises at 22 Longworth Avenue, Apartment 4, at a rent of $400 per month payable to Property Care & Rental Inc., agent for Ed Keunecke.An application (on Form 2) by the Lessor for rent due and owing, in the amount of $400, was filed with the Director of Residential Rental Property on October 26, 1992. A hearing into this matter was held on November 10, 1992, and an order issued by the Director on November 19, 1992 (Order No. LD92-0131) whereby the Lessee was ordered to pay $197.25 as rent owing.
An appeal from this Order was signed by the Lessee on December 2, 1992 and filed with the Commission on the same date.
Evidence and Argument
The Lessee admits that he did not pay the full rent owing for the months of September and November, 1992. He paid only $200 of the $400 due each month because he felt that the owner of the premises (Ed Keunecke) was responsible for the loss of the Lessee's second-hand chainsaw which had been left by the Lessee on the balcony/fire escape of the apartment. He states that when he confronted Mr. Keunecke about the theft of the chainsaw, with the request that he ask his workmen if they took it, Mr. Keunecke just laughed and said he would not make those enquiries. This angered the Lessee. The Lessee did not notify the police of the theft because he did not believe they could do anything about it.Although that incident was the primary reason given for withholding the rent, the Lessee had a number of other complaints about the condition of the premises, the fact that he felt he was paying too much rent for what he was getting, and the fact that someone -- he assumed it was the Lessor -- had entered his premises without his permission.
As well, the Lessee in his Notice of Appeal claims that the security deposit was kept by the Lessor "illegally", i.e. without the proper notice being given. However, he also admitted that he had given the Lessor permission to keep the security deposit.
The Lessor stated he had no knowledge of what happened to the chainsaw but didn't believe Mr. Keunecke had taken it. The Lessor agreed with some comments about the condition of the premises but pointed out that the Lessee knew what the premises were like when he rented them and only complained after the chainsaw incident.
The Lessor stated that he did not file a Form 8 notice to keep the security deposit because the Lessee had already told them to keep it.
Decision
The Commission confirms the Decision and Order of the Director.The chainsaw incident is not relevant to the obligation to pay rent, and the other complaints should have been dealt with through the other mechanisms available through the Rental of Residential Property Act. We agree with the Lessor that the condition of the premises did not become an issue until the loss of the chainsaw.
The security deposit is properly used in this instance to offset the rent owing. Our only additional comments on that issue are that the consent by the Lessee to the Lessor should be found binding upon the Lessor. While there is a statutory requirement for notice, such a requirement could be waived -- and apparently was -- by the agreement of both parties. The risk, of course, is on the Lessor that the Lessee will later deny the consent. So unless such consent is in writing, issuing a Form 8 notice is the only safe practice. In this case, however, the consent was admitted and so binds the Lessee.
IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C.13.1and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by (No. LD92-0131) of the Director of Residential Rental Property under the authority of the Rental of Residential Property Act.
OrderThe Appeal is dismissed.
DATED at Charlottetown, Prince Edward Island this 1st day of February, 1993.
BY THE COMMISSION:
Linda Webber, Chairman
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner
