Docket A-017-95
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Hendrik and Ann Charlotte Bouman (the Lessees) against Order No. LD95-228 of the Director of Residential Rental Property dated November 20, 1995.
Order LR96-02BEFORE THE COMMISSION
on Friday, the 19th day of January, 1996.
John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
Clayton Bulpitt, Commissioner
Order
Participants
1. Appellant:Aravinda Maheshwari, appeared on behalf of Hendrik and Ann Charlotte Bouman (The Lessees)
2. Respondent:
T. Daniel Tweel (The Lessor)
Reasons for Order
1. Discussion & Findings
The Commission has considered the evidence as submitted by Aravinda Maheshwari on behalf of the Lessees and Daniel Tweel (the Lessor) and has reviewed the relevant materials under sworn affidavit by the Residential Rental Property Officer.
On March 6, 1995 the Lessees made Application For Enforcement of Statutory or Other Conditions of Rental Agreement to the Director of Residential Rental Property. Pursuant to Section 8 of the Rental of Residential Property Act they were seeking a finding of the Director that rent is owed, the security deposit is owed and an order that they be paid for the amount of the rent and security deposit owed.
The Rental Property Officer held hearings on two occasions and subsequently issued Order LD95-228 dated November 20, 1995. The Rental Property Officer ordered that:
1. The lessor owes the lessees the sum of $400.00 for the rent paid for the month of August, 1994 on Apartment #4, 76 Great George Street.
2. The lessor shall pay the lessees the total amount due before December 30, 1995.
On November 29, 1995 the Lessees filed a Notice of Appeal with the Island Regulatory and Appeals Commission against Order LD95-228. The reasons stated for the appeal were:
1. Some facts are misunderstood or misinterpreted in the Order;
2. The hearing on November 10th closed abruptly. The Agent was not given occasion to present all his arguments, nor were his pertinent written comments given due consideration.
On December 12,1995 the Commission heard the appeal.
According to the evidence of Aravinda Maheshwari, the Lessees agreed to rent two apartments sometime during the second week of July, 1995. The units were located at 76 and 86 Great George Street. As part of the agreement to rent, the Lessor agreed to re-carpet the units before occupancy. The Lessees believed they could not occupy the units because the new carpets were not installed. At the end of July the Lessees continued to believe that the units were still in a condition that prevented them from being occupied. At that time the Lessees decided that they did not want to rent the apartment at 86 Great George Street.
On July 27, 1995 the Lessees paid by cheque to the Lessor the sum of $1,295.00. The Lessor asked for compensation in the amount of $495.00 for rent for the month of July for the unit located at 86 Great George Street. According to Aravinda Maheshwari even though the unit was not ready for occupancy the Lessees agreed to pay that amount.
On the same day the Lessor asked for rent in the amount of $400.00 per month for rent of the unit at 76 Great George Street. The Lessee paid to the Lessor $800.00 for this unit—$400.00 for rent for July and a $400.00 security deposit. Aravinda Maheshwari stated to the Commission that Mr. Bouman mistakenly wrote on the back of the cheque:
Great George
76 - 2 July & August
86 July
Aravinda Maheshwari explained that in reference to the unit at 76 Great George Street Mr. Bouman did not mean this to represent rent for July and August but rather $400.00 rent for July and a $400.00 security deposit.
The Lessees contend that an amount of rent and the security deposit is owing because the apartment at 76 Great George Street was in such a condition that it could not be occupied.
In regard to the $495.00 paid in rent for the unit at 86 Great George Street for the month of July the Lessees believe the Commission should order the rent be returned. They considered the unit was in such a condition that it could not be occupied.
In the result, the Lessees' ask that the Commission allow the appeal and order that the rent and security deposit be returned for the unit at 76 Great George Street and an amount is owed to the Lessee for rent paid for 86 Great George Street.
The Lessor admits that he and the Lessees had entered into an agreement to rent the two apartment units and that he had agreed to re-carpet the units. However, the units were in a condition that they could be occupied and there was nothing to prevent the Lessees from occupying the units. The Lessor did not think that occupying the premises was contingent on the re-carpeting project, the project was more after the fact. He and the Lessees were looking at carpet samples in his office on July 27 which demonstrates that the re-carpeting project was not a priority for the parties.
The Lessor submitted that as a result of the rental agreement the Lessees placed him in a position where he could not rent the two units, in fact they tied them up for two months. Therefore, he deserves compensation because the units were suitable for habitation and could have been occupied.
With respect to the payment of a security deposit, the Lessor submitted that he never requires a security deposit and he did not in this case. He argued that the notation made by the Lessee on the back of the cheque is clear, the $1,295.00 was for rent paid for the months of July and August for the unit at 76 Great George Street and the month of July for the unit at 86 Great George Street.
After considering the circumstances the Lessor agreed to return to the Lessees $400.00, although he believes that there is nothing to require him to make such compensation. He realizes that he has been slow in returning the rebate but he has every intention to pay $400.00 to the Lessees.
It is the view of the Commission that there is not enough evidence to support a finding that the two units were not suitable for habitation and therefore were in such a condition that they could not be occupied. The Commission finds that although there was agreement to re-carpet the premises there is no evidence it was a condition that had to be met before the Lessees could occupy the units. Failure to re-carpet prior to occupation of the premises might have been an inconvenience to the Lessees but based on the evidence, it is the Commission's opinion, it did not render the units uninhabitable for purposes of Section 6.1. Therefore, the Commission cannot allow the appeal on the grounds that the premises were uninhabitable.
After considering the evidence respecting the payment of the security deposit the Commission finds that there is no evidence that the Lessees paid a security deposit except the submission of Aravinda Maheshwari that Mr. Bouman made an error when he wrote the notation on the back of the cheque. The Commission has examined the copy of the canceled cheque submitted into evidence and finds that the only reasonable conclusion that one could draw from the notation is that the Lessee paid rent for the months of July and August for the unit at 76 Great George Street. In addition, it is the Lessors evidence that he does not require security deposits from his tenants. The Commission has no reason not to accept his policy as true and therefore would not have required a security deposit. In the result, the Commission finds that a security deposit was not paid and therefore the Lessor is not required to repay an amount to the Lessees for security deposit.
2. Decision
Therefore the Commission affirms the decision and order of the Rental Property Officer for the above-stated reasons.
Accordingly,
1. The appeal is dismissed;
2. The Order of the Rental Property Officer is affirmed; and
3. The amount of $400.00 is to be paid by the Lessor to the Lessees on or before February 2, 1996.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Hendrik and Ann Charlotte Bouman (the Lessees) against Order No. LD95-228 of the Director of Residential Rental Property dated November 20, 1995.Order
WHEREAS
Hendrik and Ann Charlotte Bouman filed an appeal against a decision of the Director of Residential Rental Property dated November 20, 1995 ;AND WHEREAS
the Commission heard the appeal in Charlottetown on December 20, 1995;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The appeal is dismissed;
2. The Order of the Rental Property Officer is affirmed; and
3. The amount of $400.00 is to be paid by the Lessor to the Lessees on or before February 2, 1996.
DATED
at Charlottetown, Prince Edward Island, this 19th day of January, 1996.BY THE COMMISSION:
John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
Clayton Bulpitt, 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.