Docket A-021-04
Order LR04-20

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Donald Wright against Order No. LD04-277 of the Director of Residential Rental Property dated November 12, 2004.

BEFORE THE COMMISSION

on Thursday, the 25th day of November, 2004.

Weston Rose, Commissioner
Brian J. McKenna, Vice-Chair
Kathy Kennedy, Commissioner

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Order

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Participants

1.   Appellant:

Donald Wright

2.  Respondent:

Betty Morrison and Wayne Bevan for Bevan Enterprises Inc.

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Reasons for Order

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1.  Introduction

Donald Wright (the Appellant) appealed Order LD04-277 (Exhibit E-5) issued by the Office of the Director of Residential Rental Property (the Director) on November 12, 2004.  The Appellant's Notice of Appeal (Exhibit E-6) was received by the Island Regulatory and Appeals Commission (the Commission) on November 16, 2004. 

The Director's Order and this present appeal concern apartment #4 located at 94 King Street in Charlottetown (the apartment).

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Monday, November 22, 2004.

2.  Background

The Appellant entered into a Standard Form of Rental Agreement (Form 1) dated November 14, 2002 (rental agreement) (Exhibit E-4.1) with Bevan Enterprises Inc. (the Respondent).  On September 28, 2004, the Respondent wrote the Appellant (Exhibit E-1.1) expressing concerns about the Appellant using an electrical extension cord connected to the Respondent's outlet.  The Respondent's letter of September 28, 2004 to the Appellant noted that the Respondent does not supply electrical power to tenants. The Respondent filed a Notice of Termination by Lessor of Rental Agreement (Form 4) dated October 22, 2004.   

In the Notice of Termination by Lessor of Rental Agreement (Form 4), the reason for termination of the rental agreement was checked as paragraph (g) which reads as follows: 

(g)  An act or omission on your part or on the part of a person permitted in or on the residential premises/property by you has seriously impaired the safety or lawful right or interest of me or other lessees in the residential property (s.14(1)(e) of Act); 

The particulars of termination read as follows: 

Wayne observed your electrical cord plugged into the hallway power last night.  You received the attached letter Sept 28th and you came into the office and denied doing it. 

On October 29, 2004, the Appellant filed an Application by Lessee to Set Aside Notice of Termination (Form 6).  This application reads in part:

First, Wayne Bevan is charging me with theft (note attached letter signed by Betty Morrison – Bevan's tenant agent).  The theft that he is bringing this eviction or termination of rental agreement is because on a few, not more than six or seven times, since May of 2004. 

The Appellant goes on to note in part that the electrical cord was to provide electricity for a small lamp, that it was normally plugged into the wall outlet of a neighbouring tenant, that the Appellant paid the other tenant for the use of his electricity, that the Appellant on occasion had a "falling out" with that tenant and that on those occasions, the hallway outlet was used instead. 

3.  Decision

The appeal is denied for the reasons which follow. 

The Appellant has acknowledged, both in writing and at the hearing before the Commission, that he used the Respondent's electricity.  A review of the rental agreement reveals that the rent paid does not include electricity. 

 Section 14(1)(e) of the Rental of Residential Property Act reads as follows:

 14. (1)   The lessor may also serve a notice of termination upon the lessee where

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(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;

The Commission finds that the Appellant seriously impaired the interest of the Respondent by using the electricity paid for by the Respondent without any lawful right to do so.  Accordingly, the Commission finds that the appeal is denied.

Given that the Appellant has paid rent for the month of November 2004 in full, the Commission hereby orders the Appellant to vacate the apartment on or before November 30, 2004.

In the testimony heard by the Commission, it was revealed that the electricity for the light outside the Appellant's apartment door was paid by the Appellant before his electricity was cut off.  The Commission wishes to point out to the Respondent that lighting for all common areas and hallways, including the light over an apartment entrance, should be connected to the landlord's meter unless a tenant specifically agrees, in the rental agreement, to pay for this electricity. 

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