DECISION AND ORDER LA93-4 IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C. R 13.1,
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Faye Ellis, Lessor, of Ellerslie R.R.#2, Prince Edward Island, against decision and order No. LD92-39 of the Rental Property Officer dated July 14, 1992.
APPEAL HEARD BEFORE:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
James Nicholson, CommissionerDate of Hearing: August 12, 1992
Date of Order: February 8, 1993
Decision and Order
Participants
Faye and Wyman Ellis, Appellant (Lessor)
Melvin Duguay, Responent (Lessee, written submissions)
Decision
Background
The Lessee rented a house at Ellerslie R.R.#2 from the Lessors; rent was $400.00 per month.On June 17, 1992 the Lessee filed with the Commission a Form 2 Notice requesting return of his security deposit.
On June 25, 1992 the Lessors filed with the Commission a Form 2 Notice requesting a finding that rent was owed.
A hearing into this matter was held by the Rental Property Officer on July 8, 1992 and decisions and orders were issued on July 13, 1992 (with respect to the Lessee ‘s application) and July 14, 1992 (with respect to the Lessor's application).
A Notice of Appeal was filed by the Lessor Faye Ellis on July 28, 1992.
The Lessee did not appear at the hearing but telephoned that morning from Ottawa, Ontario. He said he hadn't received the Notice of Hearing but a neighbor had telephoned to tell him about it.
Arrangements were made for the Lessee to listen to a tape recording of the hearing. After doing so the Lessee chose not to have the hearing reconvened but rather to file a written submission with the Commission. That submission was filed on October 29, 1992.
Evidence and Argument
The Lessors, Faye and Wyman Ellis, appeared at the hearing and clarified that they were appealing only the decision with respect to the rent owing and not the decision on the damage deposit. Both Mr. and Mrs. Ellis testified at the hearing and their evidence was substantially the same.The Lessors argue that they were never given any clear notice that the Lessee was moving out. Around the 12th or 15th of May, 1992 the Lessee told them he was thinking about moving out. The Lessors went to the rental premises at about the 20th of the month to talk to the Lessee about this, and had a conversation "dwelling on" the move. The Lessors state that the Lessee still never came right out and said that he was moving, but admit that the Lessee said "he thought he would move". The Lessors said that they just left things at that in the belief that if the Lessee wanted to move he could move.
The Lessors state that the next notice they had was on June 3. Mrs. Ellis said she didn't see any activity and so went in to look and found the Lessee gone, although a fridge and a few other things were left. She said that later that day the Lessee came to her house to ask for his damage deposit. She was on the telephone at the time and he did not wait for her to finish.
The Lessors admit they didn't try to rent out the premises after that, and point out that they had to move what was left in the house to the community dump. Mr. Ellis said he thought the Lessee would come back for the items but he didn't; so on June 10th Mr. Ellis moved them out.
The Lessors admit there were discussions about the house the Lessee lived in being for sale and stated that it had been for sale when the Lessee moved in. Also, during a conversation in May the Lessors offered to take it off the market if the Lessee wanted to stay. They say there was no response to this offer.
The Lessee stated in his submission that he moved out on June 1, 1992 and the move was no secret. He said he began moving boxes out on May 15th and that Mr. Ellis saw him bring in empty boxes and bring out full ones almost every day.
The Lessee also commented on how for 5 1/2 months his electricity was used to light up the Lessor's barn and pump water for three horses.
Finally, the Lessee said he had not known that a notice had to be put in writing.
The Lessee's evidence is that he told the Lessors on May 1st that he was moving out because the house had been put up for sale. By the time the Lessors offered to take the house off the market the Lessee had found another place to live.
Decision The Appeal is dismissed.The Commission finds that the Lessee had several conversations with the Lessors during the relevant period and that the Lessors knew from these conversations that the Lessee was planning to move.
The Lessee says he told the Lessors on May 1st. The Lessors say that they were told sometime around the 12th or 15th of the month. Then on the 20th there was a lengthy conversation between the Ellis' and the Duguays that clearly indicate a knowledge and an acknowledgement by the Lessors that the Lessees were moving. Why else would the Lessors have offered to take the house off the market?
Although the Ellis' claim to not know why the Lessee's were moving out, we find that testimony inconsistent with the conversation which the Lessors say occurred on or about May 20th. Clearly the Lessee expressed concern about having to move at a moment's notice after the house was sold and the Lessors tried to remove that concern by offering to take the house off the market.
This indicates that the Lessors knew by that date of the Lessee's intention to move out. Since the Lessors took the initiative to attend at the rental premises to discuss these matters, it is also clear that they knew even before that date.
The answers given by the Ellis' on the matter of dates of their conversations with the Lessee were vague. On the other hand, the Lessee is clear on his dates. As well, the evidence of the Lessee is more consistent with the facts than the evidence of the Lessors. We therefore, accept the evidence of the Lessee that he gave his verbal notice on May 1, 1992. the Lessors may simply not have noticed the exact date.
As for the failure of the notice to be in writing, the parties to a contract can waive that requirement. In the circumstances here we find that the actions of the Lessor in attending at the rental premises and trying to get the Lessee to change his mind about leaving indicated that the notice in writing requirement had been waived.
IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C. R 13.1,and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Faye Ellis, Lessor, of Ellerslie R.R.#2, Prince Edward Island, against decision and order No. LD92-39 of the Rental Property Officer dated July 14, 1992.
Order The Appeal is dismissed. DATED at Charlottetown, Prince Edward Island this 8th day of February, 1993.BY THE COMMISSION:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
James Nicholson, Commissioner
