Order LR02-05 - Rental Appeal -A-008-02 Andrew Darville (MacRae Holdings v. Darville)

Docket A-008-02
Order LR02-05

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Andrew Darville against Order No. LD02-180 of the Director of Residential Rental Property dated August 29, 2002.

BEFORE THE COMMISSION

on Monday, the 23rd day of September, 2002.

Maurice Rodgerson, Panel Chair
Weston Rose, Commissioner
Norman Gallant, Commissioner

Order

Participants

1.   Appellant:

Andrew Darville
Andre Darville

2.   Respondent:

MacRae Holdings, represented by Glen Pye and Arnold MacRae

Reasons for Order

1. Introduction

Andrew Darville is appealing Order LD02-180 (Exhibit E-38) of the Director of Residential Rental Property dated August 29, 2002. The Notice of Appeal (Exhibit E-39) was filed September 3, 2002.   The matter was heard by the Commission on September 18, 2002.

2. Background

The dispute relates to an Application For Enforcement of Statutory Or Other Condition Of Rental Agreement (Exhibit E-1) filed by Glen Pye on behalf of MacRae Holdings (Lessor) against Andrew Darville (Lessee) regarding residential premises located at 15 Amber Avenue in Meadowvale Park. This followed the Notice of Termination By Lessor of Rental Agreement (Exhibit E-2) dated May 10, 2002.

The circumstances appear to be that the site in the mobile home park was rented by Andrew Darville but occupied by his father, Andre Darville.   The park owners do not permit subletting of units and require that the owner of the unit live in the unit (Exhibit E-4 and E-57). Andre Darville admits he lives in the home and does not plan to move until it is sold.

3. Decision
Some 57 exhibits were filed and the Commission heard 2.5 hours of oral testimony. The comments from both parties covered a wide range of issues, from picnic tables to social assistance, which are well beyond the authority of the Commission, and the Commission must focus its consideration of the evidence on the rental issue at hand.

The Commission has not been presented with evidence or testimony that would support reversing the decision of the Director of Residential Rental Property.

The Commission is satisfied, based on the evidence presented, that the Lessee violated rules (Exhibit E-4) regarding the operation of the park and the action taken by the Lessor is within the requirements of the Rental of Residential Property Act.

The Notice of Termination By Lessor of Rental Agreement (Exhibit E-2) utilized the approved form under the Rental of Residential Property Act, and was served in a manner consistent with the requirements of the Act.

The Commission notes that the Lessee did not apply to the Director of Residential Rental Property to set aside this notice of termination, and did not provide sufficient argument at the hearing to offer a viable explanation of why such action was not taken. The approved form used by the Lessor clearly states in the NOTE section at the bottom "The Lessee may apply to the Director of Residential Rental Property within 10 days to set aside this notice of termination (see S.16 of Act)". The address and telephone number of the Office of the Director of Residential Rental Property, including a toll free number, is also listed on the form.

Section 16(3) of the Act speaks directly to this situation. It states:

Where the lessee does not bring an application to set aside the notice, he shall be deemed to have accepted the termination on the effective date of the notice.

The Lessee freely admits (Exhibit E-47) he attempted to sell the mobile home during that period in order to comply with the termination of the rental agreement.

The Lessor appears to have been lenient in enforcing the termination of the rental agreement, given the fact it was effective June 10, 2002, but the application to the Director of Residential Rental Property for enforcement was not made until August 2, 2002. The Lessor indicated that because of a possible sale of the mobile home he had not moved as quickly in seeking enforcement of the termination of the rental agreement. However, this does not change the fact the agreement was terminated, and that the termination was not appealed, nor set aside.

It is the decision of the Commission that the Lessor followed proper procedure in seeking termination of the rental agreement and seeking enforcement of that termination. Mr. Darville must therefore comply with the requirement to vacate the site.

Given the amount of time that has transpired since this matter began, and the reality of our weather that would make a late fall move more difficult, the Commission believes it is appropriate to set as early a date as possible for enforcement of the order.

At the hearing, the Lessor and his Park Manager raised the matter of various letters being circulated in the park by the Lessee and these letters caused some concern among some of the other residents of the park. While this may be a violation of the statutory conditions, it was not raised by the Lessor. However, the Commission considers such behavior another factor in determining the prompt delivery of possession.

Given the Lessee has the right to appeal this decision within 15 days to the court, on a matter of law only, and that right to appeal would expire on October 8, 2002, the Commission believes it appropriate to set Wednesday, October 9, 2002 as the deadline for delivery of possession. If the Lessee fails to comply with this order the Sheriff is directed to put the Lessor in possession of the site on that date.

Order

WHEREAS Andrew Darville filed an appeal against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on September 18, 2002;

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

IT IS ORDERED THAT

The appeal is denied;

The Lessee shall remove the mobile home and deliver up possession of the mobile home site on or before October 9, 2002; and
If the Lessee fails to comply with this order the Sheriff is directed to put the Lessor in possession of the site on that date.

DATED at Charlottetown, Prince Edward Island, this 23rd day of September, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Weston Rose, Commissioner

Norman Gallant, 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.