Docket A-008-95
Order LR96-01

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Mike Nasser (the Lessor) against Order No. LD95-130 of the Director of Residential Rental Property dated May 30, 1995.

BEFORE THE COMMISSION

on Friday, the 19th day of January, 1996.

John L. Blakney, Vice-Chair

Debbie MacLellan, Commissioner

Emmett Kelly, Commissioner

Order

Participants

1. Appellant:

Mike Nasser, the Lessor
Lori Judson, Witness

2. Respondent:

Darlene Wisener, the Lessee
Joseph Wisener, Witness
Kevin MacKenzie, Witness

Reasons for Order

1. Discussion & Findings

The Commission has considered the evidence submitted by Mike Nasser and Darlene Wisener and has reviewed the relevant materials provided under sworn affidavit by the Director of Residential Rental Property.

On June 5, 1995 Mike Nasser filed a Notice of Appeal, pursuant to Section 25 of the Rental of Residential Property Act with the Island Regulatory and Appeals Commission against Order LD95-130 of the Director of Residential Rental Properly, dated May 30, 1995.

The subject property is a residential premises located at 82 Spring Park Road, Charlottetown, P.E.1.

The Commission heard the appeal on June 19, 1995 and October 27, 1995.

At the commencement of the hearing Darlene Wisener submitted that there was no lessor and lessee relationship between her and Mike Nasser because they had not entered into a rental agreement but she had entered into an arrangement with him to purchase the house. Therefore, she argued that the Commission really had no jurisdiction to hear the appeal. Mr. Nasser indicated that he had not come to the healing prepared to respond to this preliminary issue and he would require time to respond. With the agreement of the parties, and since all parties were prepared to present their cases on the substantive matters of the appeal the Commission decided to continue to hear the appeal and then hear argument on the preliminary issue at a later date.

On June 19, 1995 the Commission heard the submissions on the appeal and on October 27, 1995 it heard argument on the issue of whether or not there was a rental agreement and consequently a lessor-lessee relationship. Although the Commission heard the preliminary issue last it will deal with that issue first and then the matter of the appeal.

Preliminary Issue:

Darlene Wisener submitted that when she met with Mike Nasser in regard to occupying the residential premises, that she had entered into an agreement with Mr. Nasser to purchase the house. The agreement was not to rent the premises but to purchase it over a term. Ms. Wisener submitted copies of receipts that demonstrated, according to her that she was making payments on the purchase of the house and not for rent and that she had spent money on renovations to the house. She also submitted that there was an agreement to purchase the house, however she did not have a copy and could not present one to the Commission as evidence. She informed the Commission that an agreement existed and that Mike Nasser had the only copy, he has never provided her with a copy. Consequently, she submitted the Commission has no jurisdiction to hear the appeal and make a decision because the arrangement was not for renting the premises under the Act.

Mike Nasser agreed that he had discussed the possibility of selling the house to Ms. Wisener, in fact had discussed specific terms of a purchase. He indicated to the Commission that he understood that she was to get back to him about the purchase, but she did not. She occupied the premises and has been paying rent. He indicated to the Commission that no purchase agreement exists. He also provided receipts that demonstrated that he has paid water and sewer charges and property insurance since Ms. Wisener occupied the premises. He argued that it would be unreasonable to think that he would be paying these bills if he did not own the building.

The Commission has given careful consideration to the submissions made by the parties on this issue. In the absence of a document or documents such as a purchase and sale agreement or deed conveying an interest in the property the Commission finds that for purposes of the Act that a lessor and lessee relationship exists and that a rental agreement exists. Therefore the Commission has jurisdiction to hear the appeal and issue a decision and order in accordance with Sections 25 and 26 of the Act.

The Appeal Matter:

On March 6, 1995 Mike Nasser (the Lessor) delivered to Darlene Wisener (the Lessee) a Notice of Termination by Lessor of Rental Agreement. The reason for termination was:

You failed to pay rent in the amount of $600.00, which was due on the 1st day of March, 1995.

In accordance with Section 16 of the Act, on March 16, 1995 the Lessee filed with the Director of Residential Rental Property an Application by Lessee to Set Aside Notice of Termination. The reason given by the Lessee to have the Notice set aside was:

(a) paid the monthly payment,.

(b) the relationship is not one of landlord (lessor) and tenant (lessee).

The Commission previously decided that in this case a lessor and lessee relationship exists between Mike Nasser and Darlene Wisener. Therefore the Commission cannot dismiss the appeal for the reason that such a relationship does not exist.

In regard to the contention by the Lessee that the payment was made or that the rent was paid for the month of March, the Commission does find in favor of the Lessor.

The Lessee indicated to the Commission that she paid the rent in the amount of $600.00 to Lori Judson an employee of Mike Nasser. The Lessee also submitted a receipt in that amount which she contends was signed by Lori Judson on March 1, 1995 and was for the house payment for the month of March. Despite the fact that the Lessee submitted the receipt Lori Judson, under sworn testimony, testified that the rent was not paid to her and that the signature was not her signature. She also indicated the receipt was not a normal receipt as compared to the others. Lori Judson confirmed that all the receipts that were submitted into evidence where her name appeared as signatory were her signatures except for the one dated March 1, 1995. Ms. Judson testified that the reason it does not resemble her signature is because the signature on the March 1, 1995 receipt is shaky and that when she writes her name she does not shake.

The Commission considers this a very serious and difficult situation. The evidence shows that the Lessee has not been persistently or habitually late in payment of her rent. In fact it appears that it is the first time there has been a problem, at least to the point where satisfactory arrangements had been worked out between the Lessee and the Lessor. According to the description of the events that occurred around the period of March 1, 1995, by the Lessee, she was in a state of upset over a family member passing away and confusion over the actual events. The Commission is confronted with reaching a decision where it has contrary evidence on the true facts. Under such circumstances the Commission must determine what is the most credible evidence. One could criticize the manner in which the Lessor conducts his rental business and the questionable method he has for maintaining his records. However, even in the absence of record keeping the Commission finds that greater weight must be given to the sworn evidence of Lori Judson.

The Commission finds that the rent for March 1, 1995 in the amount of $600.00 is owed to the Lessor.

2. Decision

In the result the Commission finds that in this case the Lessee failed to pay the rent for the month of March, 1995 and therefore in accordance with Section 13(1) the Lessor had grounds to terminate the rental agreement.

The Commission allows the appeal.

Accordingly,

1. The Order LD95-130 is reversed.

2. The rental agreement is terminated as of the 27th day of March, 1995.

3. Rent in the amount of $600.00 is owed by the Lessee to the Lessor.

4. The Lessee shall pay to the Lessor the sum of $600.00 on or before February 1, 1996.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Mike Nasser (the Lessor) against Order No. LD95-130 of the Director of Residential Rental Property dated May 30, 1995.  

Order

WHEREAS Mike Nasser filed an appeal against a decision of the Director of Residential Rental Property dated June 5, 1995;

AND WHEREAS the Commission heard the appeal in Charlottetown on June 19th and October 27th, 1995;

NOW THEREFORE, for the reasons given in the annexed Reasons for Order;

IT IS ORDERED THAT

1. The Order LD95-130 is reversed;

2. The rental agreement is terminated as of March 27, 1995;

3. Rent in the amount of $600.00 is owed by the Lessee to the Lessor;

4. The Lessee shall pay to the Lessor the sum of $600.00 on or before February 1, 1996.

DATED at Charlottetown, Prince Edward Island, this 19th day of January, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Debbie MacLellan, Commissioner

Emmett Kelly, Commissioner

NOTICE

Sections 13.(1) and 13.(2) of the Island Regulatory and Appeals Commission Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.