Order LR02-03 - Rental Appeal -A-005-02 Leo Gallant (Pat Boates-Jones)

Docket A-005-02
Order LR02-03

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Leo Gallant against Order No. LD02-142 of the Director of Residential Rental Property dated July 3, 2002.

BEFORE THE COMMISSION

on Thursday, the 6th day of December, 2001.

Maurice Rodgerson, Panel Chair
Norman Gallant, Commissioner
Anne Petley, Commissioner

Order

Participants

1. Appellant:

J. Allen Shaw (Agent for Leo Gallant)
Leo Gallant

2. Respondent:

Pat Boates-Jones
Larry Charles Arsenault

Reasons for Order

1. Introduction

On July 23, 2002 the Appellant filed a Notice of Appeal (Exhibit E-12) of an Order of the Director of Residential Rental Property (Exhibit E-10) issued on July 3, 2002. The matter concerns a property (house) located at West Devon, PEI, which was rented by Pat Boates-Jones from Leo Gallant. The Order resulted from a dispute over the condition of the premises, especially allegations of water leaking into the basement, furnace/heat problems and difficulties with the water pump.

The Order was appealed by the Lessor for the stated reason "We feel the director failed to consider the work done on the premises in his decision".

2. Background

The Lessee moved into the premises in June, 2000. In April of 2001 there was a ground water leak, however, the main issues of this hearing began in late December of 2001 and continued until the Lessee moved out.

The problems related to mold in the basement as a result of a ground water leak, a noisy and malfunctioning pump and problems with the furnace.

The Lessor stated he had rented the house to other tenants prior to Ms. Boates-Jones and there were no complaints. He has since sold the property.

The rent was $500.00 per month and was paid by the Lessee until May 31, 2002. By mutual agreement the Lessor and Lessee agreed the Lessee would vacate the premises.

Extensive information has been filed with the Commission covering this period and relating to the matters under dispute, including testimony, affidavits, receipts and correspondence, involving not only the Lessor and Lessee but a number of other individuals from health officers to plumbers.

3. Decision
The Commission has reviewed the evidence presented at the appeal hearing, including some 18 exhibits relating to this dispute.

While the matter is complex in terms of the people and range of issues involved, in reality it is a very basic issue, one which is the foundation of the Lessor/Lessee relationship.

Section 6 of the Rental of Residential Property Act sets out conditions applying to the Lessor and Lessee. And has direct application to this matter.

1. Condition of Premises

The lessor shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any enactment respecting standards of health, safety or housing notwithstanding any state of non-repair that may have existed at the time the agreement was entered into.

4. Obligation of Lessee

The lessee shall be responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by any wilful or negligent act of the lessee or of any person whom the lessee permits on the premises, but not for damage caused by normal wear and tear.

In this regard the Commission has expert evidence that relates directly to the condition of the premises. In particular, an Order from Chief Health Officer Lamont Sweet dated May 10, 2002 (Exhibit E-6); a Notice of Intention to Issue an Order by Environmental Health Officer Joseph Bradley dated April 17, 2002 (Exhibit E-5); a letter to Mr. Gallant from Environmental Health Officer Joe Bradley dated March 12, 2002 (Exhibit E-4); a "Notes to File" by Mr. Bradley (Exhibit E-3); and the Order of the Director of Residential Rental Property (Exhibit E-10), which includes a statement of the findings/observations of the Rental Officer who inspected the premises.

These documents demonstrate to the Commission that a serious health issue existed with the basement of the premises, where two bedrooms utilized by the Lessee were located. It is also clear that the matter spanned three rental periods from the time of Mr. Bradley's first letter of March 12, 2002 (resulting from his inspection of the premises on March 8, 2002) until the Order issued by the Chief Health Officer on May 10, 2002.

To have a matter proceed to the point where an Order from the Chief Health Officer is deemed necessary, indicates to the Commission a failure on the part of the Lessor to honour the obligation set out in condition one of Section 6 of the Rental of Residential Property Act.

In filing the appeal, the Lessor stated the "director failed to consider the work done on the premises in his decision." Further evidence of actions taken to address some of the problems was presented at the appeal hearing, and they have been considered by the Commission.

Mr. Shaw, on behalf of Mr. Gallant demonstrated that efforts had been made to repair the pump, furnace and water damage. There is a dispute over the effectiveness of these repairs. It is also clear from the evidence of Environmental Health Officer Bradley that the conditions set out were "met to a degree", however he also recommended Ms. Jones speak to someone at IRAC. He also indicated there were new issues such as the moldy interior basement walls, ceased pump, and issues with the furnace and fuel consumption (Exhibit E-3).

Mr. Gallant, in his testimony before the Commission appeared sincere and desirous of being a reputable Lessor, however the Commission can not overlook the fact that on some issues, such as the water damage and mold, action was less effective than would be expected.

The fact the issue of mold was raised in the first letter of the Environmental Health Officer on March 12, 2002, was repeated by the Officer in correspondence of April 17, 2002, stated in the Order of the Chief Health Officer on May 10, 2002, and still observed at the time of the inspection by the Rental Officer on May 23, 2002, makes it clear to the Commission that the matter went on for some time, and that what ever remedial actions were directed or undertaken by the Lessor proved ineffective.

The Lessee was obviously concerned enough about the situation to contact a health officer, and given the action initiated by that officer any lessee would be concerned about living in the premises, and even more concerned about the health implications for young children.

The Lessee paid rent for the months of March, April and May 2002, the period covered by the inspection and health orders.

Having considered the additional evidence presented at the hearing, and reviewed the available information the Commission is satisfied the Order of the Director of Residential Rental Property was based on solid evidence and reached a fair and reasonable conclusion.

Since the property has since been sold, the aspects of the order relating to correcting deficiencies prior to re-renting the premises no longer apply.

The Commission reaffirms the finding that rent in the amount of $1,500.00, covering the months of March, April and May 2002, be returned to the Lessee, and further orders this payment be made by Monday, September 9, 2002.

Order

WHEREAS J. Allan Shaw, agent for Leo Gallant, filed an appeal against a decision of the Director of Residential Rental property dated July 23, 2002;

AND WHEREAS the Commission heard the appeal in Charlottetown on August 20, 2002;

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

IT IS ORDERED THAT

The appeal is denied;

The Order of the Director of Residential Rental property is confirmed;

Payment is due to the Lessee in the amount of $1,500.00; and

Payment is due on or before September 9, 2002.

DATED at Charlottetown, Prince Edward Island, this 26th day of August, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Norman Gallant, 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.