Docket A-009-04
Order LR04-08

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Harold and Debra Lynn Rockman against Order No. LD04-090 of the Director of Residential Rental Property dated March 31, 2004.

BEFORE THE COMMISSION

on Wednesday, the 26th day of May, 2004.

Maurice Rodgerson, Chair
Weston Rose, Commissioner
Norman Gallant, Commissioner

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Order

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Participants

1.   Appellant:

Harold and Debra Lynn Rockman

2.   Respondent:

Marie Muise
represented by John Muise and Stephen Muise

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Reasons for Order

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1.  Introduction

Debra Lynn Rockman (Appellant) has appealed Order LD04-090 (Exhibit E-30) of the Director of Residential Rental Property issued on March 31, 2004.

The Notice of Appeal was received by the Prince Edward Island Regulatory and Appeals Commission on April 22, 2004.

The appeal arises from a decision of the Director of Residential Rental Property regarding the disposition of the security deposit for a rental property located at 322 Patterson Drive in Charlottetown and owned by Marie Muise (Respondent).

The appeal was heard in the main hearing room of the Prince Edward Island Regulatory and Appeals Commission on Thursday, May 20, 2004. 

Debra Lynn Rockman and Harold Rockman appeared for the Appellants. Stephen Muise and John Muise appeared for the Respondents.

2.  Background

The Appellants rented the house in question under a rent-to-purchase agreement (Exhibit E-20) signed on September 20, 2002. 

Rent was in the amount of $850.00 per month, and a security deposit of $850.00 was also paid to the Respondent.

The Appellants did not secure financing to purchase the house and requested the agreement continue for another year. The Respondent declined and the agreement became a month to month rental agreement. The Respondents then terminated the rental agreement.

The security deposit was not returned and the Appellants made application to the Office of the Director of Residential Rental Property on November 25, 2004 (Exhibit E-1).

The Respondent was notified of the application (Exhibit E-2) and the Director extended the time period for serving Notice of Intention to Retain the Security Deposit (Exhibit E-3).

The Appellants then filed an application for Determination of Security Deposition (Exhibit E-4).

A hearing was held by the Rental Property Officer on January 22, 2004 and the resulting Order (Exhibit E-30) was appealed by the Appellants (Exhibit E-31).

3.  Decision

The appeal is denied.

The relevant section of the Rental of Residential Property Act is Section 10.(5).  This section outlines the reasons a security deposit can be retained, and gives the Director the authority to extend the time for submission of a Notice of Intention to Retain Security Deposit.

Section 10 (5) of the Act states:

5)  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.

Statutory Condition 4 is referenced in the quoted section and states:

4.  Obligation of the Lessee
The lessee shall be responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by any wilful 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.

The key issue for the Commission is whether or not sufficient information and evidence has been provided to support the claim to retain any or all of the security deposit.

Several aspects of the claim are not disputed.  At the original hearing the Appellants indicated they had agreed to the fumigation of the residence and the Commission notes that a number of pets were housed in the residence.  The Commission is also satisfied the invoice (Exhibit E-12) reflects a reasonable cost for such a service.  The $149.80 is accepted as a valid claim against the security deposit.

On the matter of the steam cleaning, the dispute appears to center on the cost of the steam cleaning, rather than whether or not an agreement existed that such cleaning would be performed.  The Commission accepts the invoice submitted by the Respondent (Exhibit E-9).  

The Lessee had steam cleaning of the carpets carried out when they moved into the house and the invoice (Exhibit E-18) indicates they paid $160.50.  However the Commission notes the Lessor's used a different company and there is no reason to doubt the invoiced amount by Steamatic. That invoice also indicates the carpets were deodorized. Therefore the Commission accepts the full amount of $224.70 as a valid claim against the security deposit. 

Several invoices and estimates were submitted by the Respondents that total far in excess of the full security deposit.  Photos have been submitted (Exhibit E-23) which suggests damages to the rental unit.  Various invoices have been submitted by the Lessor (Exhibits E-8, E-10, E-11) in support of  the claim to retain the security deposit.

The Appellants admit to some of the damage while they dispute other aspects of the claimed damage. 

There was admitted damage to part of the carpet which the Appellants replaced with another piece of carpet.  While that may have been an act of kindness, the fact is the owner of the rental property should have been given an option in terms of the action to be taken.  There was damage to at least one door, wallpaper was torn and nails used to hang pictures were left in some walls.

The approach of the Commission is to review the testimony of the parties, the evidence submitted and determine if the damages go beyond the normal wear and tear permitted by the Act, and then if damages have occurred, determine the amount of the security deposit that may be retained by the Respondent.

The evidence, especially the photo evidence, and statements of the parties indicates damage beyond normal wear and tear.

The Appellants placed considerable emphasis on the timing of the move.  They stated they had requested and been granted additional time to move out of the house.  They further stated that this time line was reduced, and then further shortened by the Respondents.  This resulted in a reduction in the time available to the Appellants to carry out cleaning and repairs, to the point they were not able to complete the work.

The Commission accepts that the time was reduced, but does not believe that even if the Appellants had been granted all the time they had requested they could have successfully carried out the necessary repairs.  Some of the work would have been time consuming, and other aspects would have required a number of days; for example to seam fill holes, prime and paint.

The Appellants pointed out that some wall damage had been caused when they were moving furniture left in the house by previous tenants.  However that does not mitigate the fact the damage was caused by their actions.  They could have insisted that the Respondent remove the furniture.  

The Appellants also raised a number of concerns they had about the house while they were living there.  These included the basement leaking, furnace problems, mice, and the dishwasher and stove not working properly. They stated the issues were raised with the Respondent but were not fully addressed. For example the Respondent paid for a furnace service call initiated by the Appellants, but the furnace problems persisted. 

The Appellants could have applied to the Director of Residential Rental Property during their tenancy for Enforcement of Statutory or Other Conditions.  However that action was not taken because the Appellants state they were first time renters and not aware of the Act, and were hoping to use the issues in negotiations to buy the property.  The Commission notes the Appellants were concerned enough about the security deposit to gain knowledge of the Act and its provisions.   It is also noted that the Appellants were prepared to purchase the property after living in the house for a year and stated they did not because of lack of financing, not the condition of the house.  The fact is the matters were not documented during the rental period either in writing to the Respondent or in a complaint to the Director. 

On the matter of costs to the Respondent for repairs, while not entering into a detailed review of every point raised, the Commission is satisfied that the damages to the unit justify the retention of the full security deposit. For example, the written quote on painting and wall repairs (E-11) in areas where some damage was admitted, is greater than the total security deposit.  Even if the Commission reduced the total substantially it would still total more than the remaining amount of the security deposit ($475.50) after the steam cleaning and fumigation were deducted.

The Commission did not address issues raised by the parties that were beyond the scope of the Rental of Residential Property Act and the Island Regulatory and Appeals Commission Act.

After considering the evidence filed with the Director, and the evidence and testimony at the appeal hearing the Commission denies the appeal.

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