Order LR03-09 - Rental Appeal - A-010-03 Re: William Ross v. Director of Residential Rental Property (Order LD03-150)

Docket A-010-03
Order LR03-09

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by William Ross against Order No. LD03-150 of the Director of Residential Rental Property dated June 27, 2003.

BEFORE THE COMMISSION

on Thursday, the 31st day of July, 2003.

Maurice Rodgerson, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, Commissioner

Order

Participants

1.   Appellant:

William Ross

2.   Respondent:

Sean Gracey

Reasons for Order

1. Introduction

The Lessee (William Ross) appealed Order LD03-150 of the Director of Residential Rental Property regarding the termination of the rental agreement for a rental unit located at 304 Richmond Street. The appeal was received by the Commission on July 9, 2003 and within the time limits of the Rental of Residential Property Act. The appeal was heard at the offices of the Prince Edward Island Regulatory and Appeals Commission on Wednesday, July 30, 2003.

2. Background

The Lessee occupied Apartment #1 at 304 Richmond Street in Charlottetown, PEI. The Lessor and Lessee have a difference of opinion about how long the Lessee occupied the unit; however, the Commission is satisfied that for the purposes of the matter before the Commission the rental agreement was month to month. The agreed monthly rent was $400.00.

In June the Lessee failed to pay rent in full on the due date. There is a difference of opinion over what occurred when one of the Lessors went to the unit to collect the rent.

The Lessee states he had lost a cheque and was not able to pay the rent in full. He states he paid half the rent for the month of June ($200.00) and made a verbal agreement with the Lessor that he would pay the other half in two payments of $100.00, one at the end of June, the other at the end of July.

The Lessor states they did not make any such arrangement with the Lessee and was told that the Lessee had lost a cheque and would pay as soon as the cheque was found.

The Lessor decided to serve the Lessee with a Notice of Termination for failure to pay rent and did so by posting the notice on the apartment door (Exhibit E-2).

The lessee states he was not aware of the notice and was surprised by the action.

When the Lessee failed to pay the rent due and did not vacate the unit, the Lessors sought an order for delivery of possession of the unit from the office of the Director of Residential Rental Property (Exhibit E-1).

The resulting Order of the Director (Exhibit E-4) has been appealed to the Commission by the Notice of Appeal (Exhibit E-5).

3. Decision

At the conclusion of the hearing the Lessee asked for a delay so that he could bring forward more information and witnesses. He indicated that he was not aware that he could present witnesses. The Commission noted that the Notice of Appeal Hearing (Exhibit E-7) clearly indicated that witnesses could be presented at the hearing. The Lessee admitted he did not read that information. Given the circumstances of the case and the fact the request came at the end of the hearing, the Commission was not willing to grant any extension.

Having reviewed the material filed, and having considered the evidence and testimony presented at the appeal hearing, the appeal is denied.

The Lessors have the legal right to seek termination of the rental agreement for failure to pay rent.

Section 13 (1) of the Rental of Residential Property Act states:

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.

The fact that the rent was not paid in full on the due date was not disputed and the Lessee did not provide sufficient evidence to support his contention that an alternate payment arrangement had been made.

The Commission did not hear direct evidence from Peter Knox, the other Lessor, because he was not present at the hearing; however, the Lessee testified that Mr. Knox agreed to staggered payments of rent for June. It is noted that Mr. Knox signed both the Notice of Termination (Exhibit E-2) and the Enforcement application (Exhibit E-1). It is also the evidence of the Lessee that both Lessors participated in efforts to have him vacate the rental unit.

In the absence of compelling evidence to the contrary the Commission must place considerable weight on the signed documents before the panel.

The evidence also indicates the Notice of Termination was served in accordance with the provisions of the Act, specifically it was posted on the door of the unit as permitted under Section 33 of the Act.

33. (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 had the posting witnessed and the Commission accepts that the notice was properly served.

The Lessee could have paid the rent due and voided the notice. Section 13(2) of the Rental of Residential Property Act outlines this option. It states:

13.2 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.

The Lessee did not take any such action. The rent was not paid, and the Notice of Termination was not voided.

The Lessee also had the option to seek to have the Notice of Termination set aside. This is covered in Section 16 of the Act:

16.(1) A lessee who has received notice of termination for any of the reasons set out in section 13, 14 or 15 may apply to the Director for an order setting aside the notice.

The Lessee did not file an application to have the Order set aside, and therefore as subsection 16(3) indicates, the Lessee is deemed to have accepted the Notice of Termination.

The Commission also notes that the Lessee vacated the unit in question. The Lessee also stated at the hearing, in relation to the apartment at 304 Richmond Street, that he "would never stay there anyway" and went on to state he is very happy with his new apartment.

Therefore, for the reasons stated the Commission denies the appeal and finds that the Order of the Director is upheld.

Order

WHEREAS William Ross appealed Order LD03-150 of the Director of Residential Rental Property;

AND WHEREAS the Prince Edward Island Regulatory and Appeals Commission heard the appeal in Charlottetown on Wednesday, July 30, 2003;

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

IT IS ORDERED THAT

The appeal is denied; and

The Order of the Director is confirmed.

DATED at Charlottetown, Prince Edward Island, this 31st day of July, 2003.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Norman Gallant, 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:

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.