Docket A-001-04
Order LR04-01

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Brent Gallant against Order LD04-015 of the Director of Residential Rental Property dated January 15, 2004.

BEFORE THE COMMISSION

on Friday, the 6th day of February, 2004.

Maurice Rodgerson, Vice-Chair
Weston Rose, Commissioner
George MacDonald, Commissioner

Order

Participants

1.   Appellant:

Brent Gallant

2.   Respondent:

Summerside Housing Authority
Agent: Jeff Sullivan

Reasons for Order

1.  Introduction

Brent Gallant appealed Order LD04-015 of the Director of Residential Rental Property.  The Order (Exhibit E-13) was issued on January 15, 2004.  The appeal (Exhibit E-14) was received by the Prince Edward Island Regulatory and Appeals Commission on January 20, 2004. 

The appeal arises from a Notice of Termination by Lessor of Rental Agreement issued by the Summerside Housing Authority for a rental unit located at 373 Elm Street in Summerside, PEI.

The appeal was heard in the Boardroom of Access PEI, in Summerside on Tuesday, February 3, 2004.

2.  Background

The Lessee entered into a rental agreement (Exhibit E-6) with the Summerside Housing Authority on May 2, 2003 to rent a portion of a duplex located at 373 Elm Street.

In September 2003 the Lessor sent the Lessee a letter (Exhibit E-7) regarding complaints made about "disturbing activity" at 373 Elm Street, specifically a party with many people in attendance, loud noise and trespassing on nearby properties resulting in the police being called to the residence.   The letter contained a warning of eviction if further such activity took place.

The Lessee apologized to the neighbours and indicated the situation would not be repeated.

In December 2003 a second letter was sent by the Lessor (Exhibit E-8) alleging another incident had occurred at the residence and informed the Lessee that the Board of Directors of the Summerside Housing Authority had taken a decision to terminate the lease.  A Notice of Termination (Exhibit E-2) accompanied the letter.

The Lessee made application to set aside the Notice of Termination (Exhibit E-4).  A hearing was held by the Director of Residential Rental Property and that resulted in Order LD04-015 (Exhibit E-13) which confirmed the Notice of Termination.

The Lessee appealed that decision to the Commission (Exhibit E-14).

3.  Decision

The appeal is denied.

In this matter the Commission must first satisfy itself that the reasons for the Notice of Termination were valid, and secondly that the Lessor acted in accordance with the provisions of the Rental of Residential Property Act in issuing the Notice of Termination.

The Lessee has failed to provide sufficient evidence to support his request to have the Notice of Termination set aside, and the Commission is satisfied the Notice was filed in accordance with the provisions of the Rental of Residential Property Act.

The matter of the disturbances that resulted in the first letter of warning and the second letter and Notice of Termination are not disputed.  The Lessee admits the incidents took place but states they were the fault of his children, specifically his teenage daughter, and occurred when he was not at home. While the Commission accepts his statements as truthful and found the Lessee to be sincere and honest in his presentation to the Commission, it does not diminish his responsibility as the Lessee, nor alter the legal rights of the Lessor.

The Rental of Residential Property Act sets out certain Statutory Conditions that apply to all rental agreements.  One of those conditions is central to the matter before the Commission. 

The Act states:

 6.   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:

3.  Good Behaviour
The lessee and any person admitted to the premises by the lessee shall conduct themselves in such a manner as not to interfere with the possession, occupancy or quiet enjoyment of other lessees. 

While this condition applies to all rental agreements, it is worthy of note that direct reference is made to the Statutory Conditions in the rental agreement signed by the Lessee and a copy of the Statutory Conditions is included as Schedule "A" of the agreement (Exhibit E-6).

This provision was also quoted in the first warning letter sent to the Lessee.

It is clear from the evidence that at least three separate incidents resulted in complaints to the Housing Authority about the occupants of 373 Elm Street.  Two related to "quiet enjoyment" the other to safety. The Authority took those complaints seriously enough that they wrote a letter to the Lessee after the first incident and issued a warning that "further such disturbances at your home may result in the termination of your lease".

The first letter of warning came four months into the rental agreement, the second letter was written about three months later.

The Lessee understood the seriousness of the matter such that he wrote a letter of apology (Exhibit E-9) after the second letter from the Authority which included the Notice of Termination.

The Commission sympathizes with the fact the Lessee has numerous health issues.  The Commission also accepts his contention that he was not home at the time of the party incidents, and accepts his statement that his children were involved; however, he can not escape responsibility.

The Rental of Residential Property Act defines a Lessee:

(g) "lessee" means a person to whom permission is given, pursuant to a rental agreement, to occupy residential premises and includes his assigns and legal representatives;

The applicable Statutory Condition also makes it clear that the condition applies to the "lessee and any person admitted to the premises by the lessee".

The Lessee has indicated the children occupied the house with his permission.  This is further supported by evidence at the hearing (Exhibit E-18) which indicated a court order granted the sole custody of the children to the former spouse of the Lessee.  As the Lessee, it is therefore his responsibility to ensure those granted access to the rented premises adhere to the conditions of the rental agreement.

The Lessee made numerous references to his personal health issues and the impact a move may have on those conditions. While the Commission recognizes such changes can cause stress, the Act does not make any distinction between a Lessee and a Lessee with health problems.  The responsibilities and obligations remain the same whether or not the Lessee was present at the time of the incidences, and regardless of the reasons for his absence.

The Lessor, in acting on complaints, appropriately addressed its concerns and actions towards the person with whom it had a signed rental agreement for the unit in question.

The Lessor's representative testified they were concerned about the noise and activities associated with the parties, and the danger to others as the result of a complaint received about a car driving incident at the premises.

The Commission is satisfied that the Lessor believed the matters to be serious enough to warrant Notice of Termination.

The Rental of Residential Property Act permits Lessors to take action to terminate a rental agreement on specific grounds.

Section 14 of the Act states, in part: 

14.1 The lessor may also serve a notice of termination upon the lessee where 

(a)    statutory condition 3 or 4, or any other term of rental agreement has been breached, other than failure to pay rent;

(e) the safety or other lawful right or interest of the lessor or other lessee in the residential property has been seriously impaired by an act or omission of the lessee or a person permitted in or on the residential property or residential premises by him;

That being determined, the Act also sets out the manner in which such Notice is to be given. Section 11 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).

The Lessor took the action of notifying the Lessee of its concerns in writing and also issuing a written warning that any further such incidents could result in a Notice of Termination.

The second letter included the Notice of Termination By Lessor of Rental Agreement, a form approved by the Director of Residential Rental Property.  The form was properly executed and gave the required notice.  The Lessee obviously received the notice promptly as an application to set it aside was made within two days.

Based on the evidence before the Commission, it is determined that the Lessor is acting within the Act in issuing the Notice of Termination.

The Commission therefore has no basis to set aside the Notice of Termination.

Decisions of the Commission may be appealed to the Court on a matter of law within 15 days of the date of the decision, therefore it is appropriate to set Tuesday, February 24, 2004 as the effective date for the Lessee to comply with the Notice of Termination.

Order

WHEREAS Brent Gallant appealed Order LD04-015 of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Summerside on Tuesday, February 3, 2004;

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

IT IS ORDERED THAT

  1. The appeal is denied.
  1. The Notice of Termination is valid, and the Lessee must vacate the premises at 373 Elm Street, Summerside, by February 24, 2004.

DATED at Charlottetown, Prince Edward Island, this 6th day of February, 2004.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Weston Rose, Commissioner

George MacDonald, 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.