Docket A-007-04
Order LR04-07

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Chad Barlow and Scott Barlow against Order No. LD04-072 of the Director of Residential Rental Property dated March 12, 2004.

BEFORE THE COMMISSION

on Friday, the 21st day of May, 2004.

Brian J. McKenna, Vice Chair
Weston Rose, Commissioner
Norman Gallant, Commissioner

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Order

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Participants

1.   Appellant:

Chad Barlow and Scott Barlow

2.   Respondent:

Keith Tanton

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Reasons for Order

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1.  Introduction

Chad Barlow and Scott Barlow (the Appellants) appealed Order LD04-072 (Exhibit E-5) issued by the Office of the Director of Residential Rental Property (the Director) on March 12, 2004.  The Appellant's Notice of Appeal (Exhibit E-6) was received by the Island Regulatory and Appeals Commission (the Commission) on April 2, 2004. 

The Director's Order and this present appeal concern the residential premises located at Apartment #4, 161 Arcona Street in Summerside (the Apartment) and arise from an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-1), filed by Keith Tanton (the Respondent), dated October 14, 2003 and received October 21, 2003.   

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Monday, April 26, 2004.

2.  Background

The Appellants, as lessees, entered into a month by month verbal rental agreement with the Respondent, as lessor, to rent the Apartment.  The evidence indicates that this verbal agreement commenced on or about April 17, 2002.  

In November 2002, the Respondent received a complaint from another tenant that the Appellants were having a party.  Following a visit to the Summerside Police Department, the Respondent became aware that the Appellant Chad Barlow had been arrested and the Respondent notified Mr. Barlow's parents.  The Appellants moved out of the Apartment later that month.  A new tenant moved into the Apartment some time in December 2002. 

On October 21, 2003 the Respondent filed an Application for Enforcement of Statutory or Other Conditions of Rental Agreement pursuant to section 8 of the Rental of Residential Property Act (the Act), R.S.P.E.I. 1988, Cap. R-13.1, for an order that an amount of $425.00 per month be found to be owed and be paid for the months of November and December, 2002.   A hearing was held before the Director on December 4, 2003, pursuant to paragraph 4(2)(d) of the Act. 

In the Director's Order, issued March 12, 2004, the Director found that the Appellants had failed to serve the Respondent with a proper Notice of Termination as required by the Act.  The Director found that the new tenant had moved some belongings into the Apartment on December 26, 2003.  Therefore, the Director found that the Appellants owed rent in the amount of $425.00 for the month of November 2002 and also owed rent in the amount of $342.75 for 25 days in the month of December 2002, and ordered that a total rent of $767.75 was owed by the Appellants.

The Appellants appealed the Director's Order to the Commission.

 3.  Decision

The appeal is allowed in part, and the Commission orders that the Appellants pay the Respondent $425.00 for rent owing for the month of November 2002.  The reasons for decision follow.

Sections 25 and 26 of the Act read as follows:

25. (1) Any party to a decision or order of the Director, if the party has appeared or been represented at the hearing before the Director, may appeal therefrom by serving on the Commission, within twenty days after receipt of the decision or order of the Director, a notice of appeal in the form prescribed by regulation.

(2) Appeals made to the Commission shall be heard by it within thirty days of receipt of the appeal.

(3) Where an appeal is not made under subsection (1), the parties are deemed to have accepted the decision of the Director and the decision is final. 1988,c.58,s.25; 1990,c.53,s.7; 1991,c.34,s.1,2; 1991,c.18,s.22 {eff.} Nov. 4/91.

26. (1)  An appeal to the Commission shall be by way of a re-hearing, and the Commission may receive and accept such evidence and information on oath or affidavit as in its discretion it considers fit and make such decision or order as the Director is authorized to make under this Act.

(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. 1988,c.58,s.26; 1990,c.53,s.8; 1991,c.18,s.22 {eff.} Nov. 4/91.  

The Appellants submit that they had some people at the Apartment on the evening of November 2, 2002.  They left a little later, and Chad Barlow was later arrested for intoxication in a public place.  Apparently the Respondent notified the Appellants' parents that night after having heard that Mr. Barlow had been arrested.  The following day the Respondent called, told the Appellants they were not allowed back and to consider this to be their eviction notice.  The Appellants moved out as of mid November. 

The Appellants also submit that the other tenant was in the Apartment before December 25, 2002.  They had noticed Christmas decorations and artificial snow on the windows, and these decorations appeared not that long after the Appellants had moved out. 

The Appellants submit that they were told to leave and as such, at the most, they owe fourteen days rent.  They submit that the conversation in the garage between their mother and the Respondent occurred on the day after Chad Barlow's arrest, not mid November.  Further, they state that the Respondent had told their mother that they had to move out.

The Respondent submits that, on the night in question, he had received a call from an upstairs tenant.  He went to the Apartment and found it to be empty.  He then went to the police station to let them know and to ask them to keep an eye on the Apartment.  While at the police station, he heard the call that Chad Barlow had been arrested.  He then called the Appellant's parents to advise them of this.  About mid November, the Appellants' mother had spoken with them in the garage and asked him to evict the Appellants, as she was concerned about Chad's drinking.  Later in November, the Apartment was still messy and not ready to rent.  The Appellants and their mother were in the Apartment later in November to clean up the Apartment.  During the month of December, the Respondent had to work on the walls and floor.  The Apartment was not ready to rent until the Christmas holidays.  As such, the Respondent feels the Apartment was not ready to rent until December 26, 2002.

The Respondent submitted that the Appellants were late in paying the rent on several occasions, that their parents had paid the rent at least once, and the Appellants were four months in arrears for the electricity bill. 

Upon a review of all the evidence, the Commission notes that while there was no notice of termination filed by the Appellants, there was also no written termination by the landlord.  From the evidence before the Commission, it is unclear whether the Appellants or the Respondent terminated the oral rental agreement.  The lengthy time period of approximately eleven months between the events in question and the Respondent's Application (Exhibit E-1) does not assist the Commission in determining which party terminated the oral rental agreement.  In addition, it is apparent that a new tenant began moving into the Apartment some time in December 2002.  Once again, the Commission notes that the passage of time makes the oral evidence less than reliable in establishing just when the new tenant moved into the Apartment. 

Accordingly, the Commission finds that no rent is owing for the month of December 2002.  The evidence does, however, quite clearly indicate that the Appellants moved out some time in November 2002, and accordingly, the Commission orders that the Appellants pay the Respondent rent in the amount of $425.00 for the month of November 2002. 

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