Docket A-001-02 
Order LR02-01

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Joe and Jean Reynard (the Lessees) against Order LD02-012 of the Director of Residential Rental Property dated January 18, 2002.

BEFORE THE COMMISSION

on Wednesday, the 20th day of February, 2002.

Maurice Rodgerson, Panel Chair
Kathy Kennedy, Commissioner
Anne Petley, Commissioner

Order

Participants

1.   Appellant:

Joe and Jean Reynard
(Lessees)

2.   Respondent:

Renaissance Place Ltd.
Represented by Doug Martin
(Lessor)

Reasons for Order

1.  Introduction

The Lessees, Joe and Jean Reynard, are appealing Order LD02-012 (Exhibit E-19) of the Director of Residential Rental Property issued on January 18, 2002.

2.  Background

The Lessees (Reynard) rented apartment #205 at 13 Haviland Street in Charlottetown from the Lessor (Martin) in 1997.

The Lessees gave notice they planned to vacate the apartment and moved out July 10, 2001.  Subsequent to moving out of the unit a dispute arose over the security deposit.  The Lessees contacted the Office of the Director of Residential Property and filed Form 2 (Exhibit E-1 Application for Enforcement of Statutory or Other Conditions of Rental Agreement).  They were seeking return of the security deposit.

The Director of Residential Rental Property wrote to the Lessor (Exhibit E-2) inquiring about the security deposit.

On August 28, 2001 the Lessor filed Form 8 (Exhibit E-4) outlining a number of reasons for retention of the security deposit including: broken thermostat; carpet and floor cleaning; fridge, stove and cupboard cleaning; and half a month's rent.

The Lessees filed Form 9 (Exhibit E-3) on August 29, 2001, seeking a determination of the disposition of the security deposit.

This resulted in a hearing before a Rental Officer and that resulted in the Order under appeal.

The matters relating to issues other than the rent owing were resolved in favour of the Lessees; however the Lessees appealed the Order because they were dissatisfied with the finding of rent owing.  At the hearing the Lessor, did not raise any objections regarding the Order findings on the matters other than rent owing and stated those matters did not have to be discussed because they were resolved. The Commission will therefore direct its attention to the matter of rent owing.

The Lessees claim they made a mistake filling out Form 3 (Exhibit E-6) and should have stated the date they were giving up possession was July 15, rather than July 31.  They further state the date of vacancy was discussed with the Lessor and he agreed with the Lessees that they would move out mid month.  On the matter of rent for the month of July, the Lessees say the Lessor suggested that for bookkeeping reasons they should pay a full month's rent for July and then he would credit them back money for half the month they were not in the unit. The Lessees say they also discussed the payment with the Lessor's brother,  when he showed the apartment,  and he told them it made more sense to just pay half a month's rent.  That is what they did.

When they made out the cheque they printed on the front memo line "Last Payment for Rent Apt. 205".  They also wrote "Final payment for rent Apt 205" on the back of the cheque.  The Lessor cashed the cheque and therefore the Lessees claim he accepted the cheque as final payment for rent, confirming they were only expected to pay rent for half the month of July.

They also contend a friend was very interested in renting the apartment and was prepared to move in immediately and commence paying rent from the period the Lessees vacated the apartment.  Had the Lessor accepted this tenant there would not have been any disruption in rent for the unit.

The Lessor states he did not agree to half a month's rent, and he did not suggest that the Lessees pay a full month's rent and then he would refund them for the period they were not there.  He says he has never done that and it is not the way he does business.

The Lessees gave written notice on Form 3 (Exhibit E-6) and it clearly states the date the Lessees were giving up possession was July 31st and therefore they would have to pay rent up until that time.

The tenant introduced by the Lessees does, in fact, now rent the apartment but the Lessor says they often have a waiting list for apartments and the unit was shown to several other people who did not rent it.

Several provisions of the Rental of Residential Property Act have direct application to this situation.

Section 10 addresses the matter of SECURITY DEPOSITS and Subsection (5) states:

"The lessor may retain all or part of a security deposit and interest thereon where he believes the lessee is liable to the lessor for damage to the residential premises caused by a breach of statutory condition 4, or for outstanding rent, provided that the lessor, within ten days of the date on which the lessee delivers up possession of the residential premises or such longer period as the Director may permit, serves the lessee with a notice of intention to retain security deposit in the form prescribed by regulation."

While Form 8 was not filed within 10 days the Director, as authorized by the Act, accepted the claim as the basis for a hearing.

It is therefore clear that a security deposit can be retained for rent owing.

Part III of the Rental of Residential Property Act deals with termination of rental agreements by the lessee.

Section 11(2.1) states:

"Where premises are let by rental agreement from month to month or week to week,

(a) a notice of termination shall be served by the lessee on or before the due date for the payment of rent; and

(b) service pursuant to clause (a) terminates the rental agreement on the day preceding the day that would otherwise be the next rental payment due date following the date referred to in clause (a)."

In this case the rental agreement was month to month, and in plain language proper notice would mean notice given any time prior to paying one month's rent that would terminate the agreement on the day before the next month's rent is due.

In the matter before us the evidence found in Form 3 (Exhibit E-6) clearly states that the date for giving up possession of the residential premises is July 31, 2001.  This form is signed by the Lessee, and even if the Commission were to accept the contention the date was placed in error by Mr. Reynard it is an error that can not be corrected by the Commission.

Further, if the date of July 15, 2001, proposed by Mr. Reynard, was actually on the form it would not constitute proper notice under the Rental of Residential  Property Act, and it would not relieve the Lessees of the obligation to pay rent for the month of July.

The matter of who might rent the apartment, and when, is not a consideration in determining the obligation of the Lessees.

3.  Decision

For the reasons outlined above the appeal is denied.  Order LD 02-012 is confirmed.

Order

WHEREAS Joe Reynard filed an appeal dated January 25, 2002;

AND WHEREAS the Commission heard the appeal in Charlottetown on February 13, 2002;

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

IT IS ORDERED THAT

  1. The appeal is dismissed;
  2. Order LD02-012 of the Director of Residential Rental Property is confirmed; and
  3. The Lessor shall receive payment of $219.57, which shall be issued fifteen days from the date of this Order.

DATED at Charlottetown, Prince Edward Island, this 20th day of February, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Kathy Kennedy, Commissioner

Anne Petley, Commissioner

NOTICE

Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:

26.(2) A lessor or lessee may, within fifteen days of the decision of the Commission, appeal to the court on a question of law only.

(3) The rules of court governing appeals apply to an appeal under subsection (2).

(4) Where the Commission has confirmed, reversed or varied an order of the Director and no appeal has been taken within the time specified in subsection (2), the lessor or lessee may file the order in the court.

(5) Where an order is filed pursuant to subsection (4), it may be enforced as if it were an order of the court.