Order LR02-11 - Rental Appeal -A-014-02 & A-015-02 Benny & Tanya Arsenault (Orders LD02-212 & LD02-214)

Docket A-014-02 & A-015-02
Order LR02-11

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Benny and Tanya Arsenault against Orders LD02-212 and LD02-214 of the Director of Residential Rental Property dated October 11 and October 15, 2002.

BEFORE THE COMMISSION

on Wednesday, the 4th day of December, 2002.

Maurice Rodgerson, Panel Chair
Weston Rose, Commissioner
Kathy Kennedy, Commissioner

Order

Participants

1.   Appellant:

Benny Arsenault, Lessee

2.   Respondent:

Evelyn Younker, Lessor

Reasons for Order

1. Introduction

Two orders of the Office of the Director of Residential Rental Property were under appeal at the hearing. The Lessors and Lessees are parties to both Orders, and both Orders relate to the same premises at 55 Pine Drive in Charlottetown. With the agreement of the parties the appeals were combined for this hearing.

2. Background

The two orders under appeal relate to rent owing (LD02-214) and retention of the security deposit (LD02-212).

The premises at 55 Pine Street consist of a split entry style house converted into two apartments. The Lessees rented the basement apartment unit in January of 2002, and occupied the unit until they moved out in May 2002.

The Lessor and Lessees are in dispute over the retention of the security deposit and the amount of rent owing on the unit.

3. Decision
Regarding the appeal of Order LD02-214 (Exhibit E-6) the Lessee stated at the appeal hearing that they did owe back rent in the amount of $115.00. The same statement was made by the Lessee's spouse at an earlier hearing. Therefore the Commission finds that this point is not contested. Back rent in the amount of $115.00 is owed by the Lessee to the Lessor for the month of April, 2002.

The Notice of Termination of the Rental Agreement issued by the Lessor was not contested nor invalidated by the Lessee paying the rent due within the ten day period permitted under the Rental of Residential Property Act.

Section 16.(3) of the Rental of Residential Property Act 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.

Section 13.(1) established the right of the Lessor to terminate for reasons of failure to pay rent:

Where a lessee fails to pay rent in accordance with the rental agreement, the lessor may, on any day following the day the rent was due, serve the lessee with a notice of termination to be effective not earlier than twenty days after the date it is served.

Section 13.(2) establishes the right of the lessee to terminate the notice by paying the rent due:

A lessee may, within ten days of being served with a notice of termination under subsection (1) deliver to the lessor all the rent due as of that date, whereupon the notice shall be void.

Based on the evidence the Commission has no alternative but to agree that the notice is valid.

At the appeal hearing the Lessee questioned if the notice of Termination was valid as it was served in person. The Commission notes that this is covered under Section 33.(1) of the Act which states:

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;

The notice was to be effective May 15, 2002 but the evidence indicates the Lessees did not vacate the premises on that date. In fact, the Lessor sought an Order from the Director of Residential Rental Property that occupancy of the unit be surrendered (Exhibit E-5). This Order was issued on May 27, 2002 after a hearing held on May 24, 2002. At the hearing the Lessee indicated that they were still occupying the unit but would be moving out the next day, May 25, 2002.

As the rental was on a month to month basis, and the Lessees continued to occupy the unit for 25 days in the month of May, the Commission finds that rent is owed for those 25 days. The monthly rental was $515.00, so the amount owed for 25 days is determined to be $415.25 (25 X$16.61).

The Commission finds that the appeal of Order LD02-214 is denied. The Lessees owe rent totalling $530.25 to the Lessor; $415.25 for 25 days for the month of May and $115.00 for outstanding rent for the month of April.

The second matter under appeal is Order LD02-212 (Exhibit EE- 13), regarding the security deposit.

Section 10 (5) of the Act 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.

Such a form was served on the Lessees (Exhibit EE-2) and outlined several specific costs.

Statutory condition 4 states:

The lessee shall be responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by any willful 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.

There was conflicting testimony about the amount of the security deposit that was to be paid and when it was to be paid, but both parties agree the only security deposit placed on the unit was $100.00.

The Lessor provided a number of receipts, pictures and costs associated with the cost of cleaning and repairs to the unit.

While there is conflicting testimony about who bought window blinds, and the extent of damage and repairs necessary, the Commission is satisfied that the evidence indicates costs that would cover the full amount of the deposit received ($100.00).   Items contested by the Lessee, such as the cleaning of the carpet were not included in this calculation, but the photo evidence indicates that some cleaning and possibly painting would be necessary.

Therefore the appeal is denied, and the security deposit plus accrued interest totalling $101.00 is awarded to the Lessor.

The Lessee indicated that there were other issues that led to the eviction, specifically complaints from the other tenant of the building. However, these issues do not invalidate any of the actions taken by the Lessor as there was a failure to pay rent and there were some cleaning and repairs. While there were a variety of issues raised at the hearing that have caused obvious frustration to the Lessees, they are beyond the scope of the matters that can properly be addressed by the Commission on appeal of the orders before it.

The Commission would however note that the electricity arrangement whereby one tenant pays for hall and outside lights and the other pays for the electricity to operate the furnace is less than an ideal arrangement, and one that can lend itself to disputes between tenants. It was obviously the source of some of the tension in this case.

In summary, the appeals are denied and the Lessee is deemed to owe rent in the amount of $530.25. The rent is due and payable December 10, 2002. The security deposit and interest in the amount of $101.00 may be retained by the Lessor to cover costs associated with cleaning and repairs to the unit.

Order

WHEREAS Benny Arsenault filed two appeals against two decisions of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeals in Charlottetown on November 22, 2002;

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

IT IS ORDERED THAT

The appeals are denied;
The Lessee owes the Lessor $415.25 for May rent and $115.00 for outstanding rent for April, totaling $530.25;

The rent in the amount of $530.25 is due and payable on or before December 10, 2002; and

The Lessor may retain the security deposit and accrued interest totaling $101.00.

DATED at Charlottetown, Prince Edward Island, this 4th day of December, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Weston Rose, Commissioner

Kathy Kennedy, 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.