Order LR02-09 - Rental Appeal -A-011-02 Milton Dyment (Order LD02-205

Docket A-011-02
Order LR02-09

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Milton Dyment against Order No. LD02-205 of the Director of Residential Rental Property dated October 3, 2002.

BEFORE THE COMMISSION

on Thursday, the 31st day of October, 2002.

Maurice Rodgerson, Panel Chair
Anne Petley, Commissioner
Weston Rose, Commissioner

Order

Participants

1. Appellant:

Milton Dyment - Lessor
Earl Clements – Witness

2. Respondent:

Cindy DesRoches - Lessee
Gail DesRoches - Lessee
Shirley Perry - Witness

Reasons for Order

1. Introduction

The Lessee occupies apartment #48 at 206 Commerce Crescent in Summerside, Prince Edward Island. At the time of the issue under consideration the property was owned by Milton Dyment.

This appeal arises from Order LD02-205 of the Director of Residential Rental Property dated October 3, 2002 (Exhibit E-10).

2. Background

A dispute between the Lessee and Lessor arose in the month of May 2002 regarding a mouse problem at the location of the apartment.

The Lessee filed a Form 2, Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-1). This resulted in a hearing before the Director of Residential Rental Property (Exhibit E-3) and an Order from the Director (Exhibit E-10).

That decision of the Director was appealed by the Lessor by way of an appeal notice to the Island Regulatory and Appeals Commission received October 8, 2002. (Exhibit E-11)

The appeal hearing was held at the offices of the Island Regulatory and Appeals Commission on Monday, October 28, 2002 (Exhibit E-13).

3. Decision
The Commission denies the appeal and confirms the Order of the Director of Residential Rental Property.

It is clear to the Commission, based on the oral evidence of those present, and the filed information that a mouse infestation occurred at the residence in question, and that it escalated to the point where professional pest control action was necessary to address the problem.

The Commission finds this to be in violation of Statutory Condition one, outlined in Section 6 of the Rental of Residential Property Act, which states:

Notwithstanding any agreement, waiver, declaration or other statement to the contrary, where the relationship of lessor and lessee exists in respect of residential premises by virtue of this Act or otherwise, there shall be deemed to be a rental agreement between the lessor and lessee, with the following conditions applying as between the lessor and lessee as statutory conditions governing the residential premises:

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.

Section 8 of the Act speaks to the enforcement of statutory or other conditions.

It states:

Where a lessor or lessee fails to comply with a statutory condition or any other condition or covenant of a rental agreement, a person may make written application to the Director indicating the condition or covenant alleged to have been contravened and seeking a remedy, and the Director shall investigate the matter and may

(a) inspect the residential premises or have them inspected by an appropriate authority;

…

(d.1) make a finding that an amount of rent is owed or that a security deposit, or part thereof, should be forfeited or returned;

(d.2) order that an amount found to be owed be paid;

…

The Commission appreciates the testimony of the Lessor that he was not personally aware of the serious nature of the mouse infestation; however that does not eliminate his responsibility as a Lessor.   His appointed representative was aware of a pest problem, although he testified that he did not understand it to be as serious as it turned out to be. However, he had supplied traps and poison to some tenants, and steps should have been taken to ensure it was fully addressed. This is especially important given that this type of infestation can increase fairly quickly and poses a potential health hazard to those occupying the premises.

It was suggested by the Lessor and his witness that improper handling of garbage by some tenants contributed to the problem, but that allegation was not made against the Lessee in this case.   The Commission notes that the Rental of Residential Property Act is designed to protect both the Lessor and the Lessee, and provisions of the Act could have been utilized by the Lessor to support such efforts.

Copies of photos entered into evidence show evidence of mice (Exhibit E-7). Sworn testimony from two present tenants and one former tenant support the claim of mice being a problem in the complex. Other photographs (Exhibits E-5 and E-6) indicate areas where mice could gain easy access to the complex, and an area that should have been better maintained to prevent such problems.

The report of the Health Officer, as indicated in her letter to the Lessor (Exhibit E-2) demonstrates that the problem was judged serious enough for her to state, "It is strongly recommended that a professional pest control service is contacted to help eliminate the mice and to prevent future infestations. Although trapping and using poison bait will kill the mice, alone, it will not solve the problem. All cracks and holes that the mice can access must be detected and repaired to prevent more mice from getting into the apartment complex."

The Commission views this letter (Exhibit E-2) as important professional and independent evidence about the situation at 206 Commerce Crescent.

While coming at the end of the month of May, it obviously addresses a problem that had been developing for some time. In a written statement (Exhibit E-8) the Lessee states the problem got serious in November.

It is also noted that the Lessee and her witness stated the professional intervention of a pest control expert solved the problem.

The Commission is satisfied the mouse infestation problem caused concern and difficulty for the Lessee and interfered with her rights as a Lessee, justifying a return of rent.

It is also noted that the original Order indicated not all the rent due for May had been paid, and the property sold prior to the end of the month resulting in an Order that $296.77 be returned to the Lessee.

For these reasons the Commission orders that rent in the amount of $296.77 be returned to the Lessee.

Order

WHEREAS Milton Dyment filed an appeal against a decision of the Director of Residential Rental Property dated October 8, 2002;

AND WHEREAS the Commission heard the appeal in Charlottetown on Monday, October 28, 2002;

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

IT IS ORDERED THAT

The appeal is denied;

Order LD02-205 of the Director of Residential Rental Property is confirmed; and
The Lessor shall pay the Lessee $296.77 on or before November 15, 2002.

DATED at Charlottetown, Prince Edward Island, this 31st day of October, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Anne Petley, Commissioner

Weston Rose, 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.