Docket A-020-02
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by John Gallagher and Austin Munroe against Order LD02-276 of the Director of Residential Rental Property dated December 18, 2002.
Order LR03-01BEFORE THE COMMISSION
on Thursday, the 9th day of January, 2003.
Maurice Rodgerson, Panel Chair
Weston Rose, Commissioner
Arthur Hudson, Commissioner
Order
Participants1. Appellant:John Gallagher and Austin Munroe – Lessees
Represented by Jennifer Mallett and Sandra GallagherLarry Gallant - Witness
2. Respondent:
Paul Robert Wedge (Island Properties) – Lessor
Catherine Perry - Witness
Reasons for Order
1. Introduction
The Lessees appealed Order LD02-276 of the Office of the Director of Residential Rental Property, dated December 18, 2002, regarding premises at 135 Spring Street, Apt #2, Summerside, PEI.
The appeal was filed with the Access PEI Office in Summerside on December 19, 2002 and faxed to the Commission that same day.
The appeal was heard on January 6, 2003 at the offices of the Island Regulatory and Appeals Commission.
2. Background
The dispute relates to an effort on the part of the Lessor (Paul Wedge) to evict the Lessees (Gallagher and Munroe) from apartment #2 located at 135 Spring Street in Summerside.
The Lessees claim they did not receive the notice of termination at the time it was said to have been posted, by the Lessor, on the apartment door. They state it was found some time later in a snow bank, and they had to get a new copy from the Lessor. For this reason, they say they could not comply with the full payment of rent within ten days in order to invalidate the notice. They stated that once the notice was found there was an offer to pay the rent in full but it was rejected by the Lessor.
The Lessees' Representatives also claim that rent was withheld because of problems with the rental unit that were not addressed by the Lessor and they objected to an incident in which the police entered the unit.
The Lessor sought enforcement of a termination of the rental agreement (Exhibit E-2) for rent owing. He says he also had concerns about the Lessees causing damage to the rental unit, and that the unit was in good repair and any damage to the premises would have been caused by the Lessees during their occupancy of the unit.
The Lessees' witness, Larry Gallant, testified that he heard the Lessor's brother state that the sheriff would not be used to evict anyone from the unit.
The Lessor's witness stated the building was in good repair and the Lessor was a good landlord and that the Lessees were careless with garbage and not good neighbours. She also stated she witnessed the termination notice being posted to the apartment door.
3. Decision
The appeal is denied.
The fact that rent in the amount of $525 for the month of November was not paid by the Lessees is not in dispute, although the Lessees claim there was an attempt to pay at a later date.
The central issue before the Commission is the Notice of Termination of the Rental Agreement.
Section 13 (1) of the Rental of Residential Property Act addresses the failure to pay rent:
13 (1) 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.
(2) 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.
Form 4, the Notice of Termination by Lessor of Rental Agreement (Exhibits E-1 and E-2) is dated November 14, 2002, to be effective December 4, 2002. That is consistent with the requirement of the Act for 20 days notice.
At the appeal hearing a question was raised about the notice not being served on the Lessees personally. This is covered by Section 33(2) of the Rental of Residential Property Act:
33 (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 testified at the appeal hearing that the notice was posted on the door leading to the rental unit in question. Cathy Perry, the occupant of an adjacent unit stated she was asked to witness the posting of the notice and did witness it being placed on the door. She also testified that the door in question is actually located in a small entryway directly across from her apartment. The two units share another common door to the outside.
The Commission notes it would be difficult for the notice to fall from that door and pass from the entryway to the outside to end up in a snow bank. Since the purpose of the notice is to evict the Lessees, and is required under the Act, it would not be in the Lessor's best interest to post it in such a manner that it would not be found. The Lessor testified he had taken the action after consulting with a Rental officer about posting the notice.
Therefore the Commission finds that the notice was properly served.
The Lessees' Representatives made numerous comments about the condition of the rental unit, including a list of problems (Exhibit 5). While the Rental of Residential Property Act provides a means for lessees to have such matters addressed, arbitrarily withholding rent is not one of those remedies. An order could have been sought for enforcement of Statutory Conditions, but there is no evidence before the Commission that any such action was taken. Therefore the Commission can not accept the argument that the rent was withheld because of the condition of the unit.
The Lessees' Representatives also placed emphasis, including that of a witness, on a statement attributed to Brian Wedge about not using the Sheriff to evict anyone (Exhibit E-6). Whether such a statement was made or not has no bearing on the validity of the notice of termination and delivery of possession.
The Order is upheld and the Lessees shall immediately surrender possession of the rental unit.
Order
WHEREAS an appeal was filed on December 19, 2002 by Sandra Gallagher on behalf of Austin Munroe and John Gallagher against Order LD02-276 dated December 18, 2002;
AND WHEREAS the Commission heard the appeal in Charlottetown on January 6, 2003;
NOW THEREFORE, for the reasons given in the annexed Reasons for Order;
IT IS ORDERED THAT
appeal is denied; and
- The
DATED at Charlottetown, Prince Edward Island, this 9th day of January, 2003.
BY THE COMMISSION:
Maurice Rodgerson, Panel ChairWeston Rose, Commissioner
Arthur Hudson, 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.