Docket A-010-02
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Todd Munn against Order No. LD02-183 of the Director of Residential Rental Property dated September 10, 2002.
Order LR02-07BEFORE THE COMMISSION
on Thursday, the 24th day of October, 2002.
Maurice Rodgerson, Panel Chair
Weston Rose, Commissioner
Anne Petley, Commissioner
Order
Participants1. Appellant:Todd Munn
2. Respondent:
Neala Zoccoli (by phone)
Reasons for Order
1. Introduction
The Lessor, Todd Munn, is appealing the decision of the Director of Residential Rental Property (Exhibit E-7) regarding the disbursement of the security deposit for an apartment rented by the Lessee, Neala Zoccoli, at 155 Euston Street in Charlottetown.
Order LD02-183 was issued September 10, 2002. The notice of appeal was received by the Commission by fax on October 3, 2002. The appeal hearing was held on Friday, October 18, 2002.
2. Background
The Lessee occupied the rental unit from February 15, 2002 until she moved out May 1, 2002. The Lessee states she gave two weeks notice to the Lessor and moved out because of the condition of the apartment, specifically the inconsistency of the heating system and problems with the water in the kitchen.
The Lessor states he made improvements to the apartment, including some requested by the Lessee, prior to her occupying the unit. This included new cupboards, carpeting and painting. The Lessor claims the heat problem was only for one day, there was only one call from the Lessee, and the problems were fixed. He says he not only responded to calls but was in the building on almost a daily basis, and no other tenants complained.
On the matter of the damage deposit the Lessee states she did not receive a copy of Form 8 (Exhibit E-11), and had moved out of the unit because of the problems she was experiencing with the heat and water.
The Lessor states he placed Form 8 at the rental unit because he did not have a forwarding address or contact for the Lessee. The unit was not rented again until June 1, 2002 and therefore he lost the rent for the month of May because he was not given proper notice by the Lessee.
The Lessee states the keys were not returned because she had been told by the Lessor that the front door lock was being changed. The Lessor claims the lock was changed because the key had not been returned.
3. Decision
The key matter in this appeal relates to the filing of Form 8 (Exhibit E-11). The Commission notes that Form 8 was not produced at the original hearing, although the Lessor claimed to have served such a document. It is also noted that the Lessor failed to meet two additional deadlines set by the Director to produce the requested evidence, especially the Form 8. However, under appeal, Section 26(1) of the Act permits the parties to submit additional evidence and testimony. The Lessor produced a Form 8 which he testified, under oath, had been delivered to the apartment.
The responsibility of the Lessor to serve notice of intention to retain the security deposit is contained in Section 10(5) of the Rental of Residential Property Act.
(5) 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.
Service of Notices is covered under Section 33 of the Act.
(1) Any notice, process or document to be served by or on a lessor, lessee or the Director or the Commission is sufficiently served if
(a) delivered personally; or
(b) sent by ordinary, certified or registered mail
(i) to the lessor at the address given under section 31,
(ii) to the lessee at the address of the premises,
(iii) to the director at the address of his office;
(iv) to the Commission at the address of its office.
(2) Where a notice cannot be delivered personally to a lessee by reason of his absence from the premises or by reason of his evading service, the notice may be served on the lessee
(a) by serving it on any adult person who apparently resides with the lessee;
(b) by posting it in a conspicuous place upon some part of the premises or a door leading thereto; or
(c) by sending it by ordinary, certified or registered mail to the lessee at the address where he resides
The Lessor further testified he did not have a forwarding address for the Lessee, and the Lessee had not returned the keys to the unit in question.
Based on the additional evidence, and sworn testimony, the Commission must find for the Lessor.
The Lessee by her own testimony indicated that she did not give one month's notice as required under Section 11(2.1) of the Rental of Residential Property Act which states:
11. (1) A lessee may terminate a rental agreement, by serving on the lessor a notice of termination which complies with section 18….
(2.1) 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).
Section 18 of the Rental of Residential Property Act states:
(1) A lessor and lessee shall give notice to terminate in writing in the form prescribed by regulation.
Content of Notice
(2) A notice to terminate
(a) shall be signed by the person giving the notice, or his agent;
(b) shall identify the premises in respect of which the notice is given;
(c) shall state the date on which the notice is to be effective; and
(d) where notice is given by the lessor, shall state the reasons for the termination.
In the matter before the Commission the evidence indicates that written notice was not given, this fact is freely admitted by the Lessee. It is also clear that a month's notice was not given, another fact freely admitted by the Lessee.
The Lessee, in anticipation of the Lessor filing a Form 8 after the original hearing, filed a Form 9, stating "my former apartment was not fit to keep living in and moved out as soon as I could find a new place".
The Lessee stated at the hearing she moved out because of the heating problems and a water problem in the kitchen. However, the Lessee did not apply to the Director of Residential Rental Property for enforcement of Statutory Conditions which are outlined in Section 6 of the Rental of Residential Property Act, opting instead to vacate the premises.
The evidence also indicates the Lessee remained in possession of the key she was issued for the premises until the date of the original hearing. While the Lessor may have indicated he was planning to change the locks, the Lessee should have returned the key as a final demonstration of the fact she had vacated the premises.
At the time the Lessor testified he delivered the Form 8 to the apartment, the Lessee was still in possession of the key, and would have had opportunity to return to the unit and find the Form 8.
For these reasons, the Commission must allow the appeal, and find in favour of the Lessor.
The Lessor may retain rent in the amount of $375. for the Lessee's failure to give proper notice, and the balance is to be returned immediately to the Lessee.
Order
WHEREAS Todd Munn filed an appeal against a decision of the Director of Residential Rental Property dated October 3, 2002;
AND WHEREAS the Commission heard the appeal in Charlottetown on October 18, 2002;
NOW THEREFORE, for the reasons given in the annexed Reasons for Order;
IT IS ORDERED THAT
- The appeal is allowed;
- The Lessor may retain rent in the amount of $375; and
DATED at Charlottetown, Prince Edward Island, this 24th day of October, 2002.
BY THE COMMISSION:
Maurice Rodgerson, Panel ChairWeston Rose, 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:
(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.