Docket A-023-04
Order LR05-01

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Place Royale Inc. against Order No. LD04-280 of the Director of Residential Rental Property dated November 18, 2004.

BEFORE THE COMMISSION

on Wednesday, the 26th day of January, 2005.

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

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Order

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Participants

1.   Appellant:

Place Royale Inc.
Represented by: Lynn Jay

2.  Respondent:

Melvin Burns

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Reasons for Order

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1.  Introduction

Place Royale Inc. (the Appellant) appealed Order LD04-280 (Exhibit E-6) issued by the Office of the Director of Residential Rental Property (the Director) on November 18, 2004.  The Appellant's Notice of Appeal (Exhibit E-7) was received by the Island Regulatory and Appeals Commission (the Commission) on December 7, 2004. 

The Director's Order and this present appeal concern apartment #3 located at 3 Leslie Crescent in Charlottetown (the apartment).

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Wednesday, January 5, 2005.

2.  Background

Melvin Burns (the Respondent) entered into a Standard Form of Rental Agreement (Form 1) dated January 27, 2003 (rental agreement) (Exhibit E-3) with the Appellant.  The monthly rent specified in the rental agreement was $748.00 and a security deposit in the amount of $374.00 was received.

By letter dated February 23, 2004, the Respondent provided the Appellant with thirty days notice of the termination of the rental agreement, effective March 31, 2004. 

The Appellant prepared a Notice of Intention to Retain Security Deposit (Form 8) dated April 8, 2004 wherein the Appellant announced its intention to retain the total sum of $190.00 from the Respondent's security deposit.  In an attachment to Form 8, the Appellant claimed $50.00 for damage to the hardwood floor and $140.00 for costs incurred in cleaning the apartment. 

On April 21, 2004, the Respondent filed an Application RE Determination of Security Deposit (Form 9) with the Director. 

The Director held a hearing on May 31, 2004 and Order LD04-280 was issued on November 18, 2004.  In Order LD04-280 the Director found that the Appellant's $50.00 claim for damage to the hardwood floor was valid and found the Appellant's $140.00 claim for the cost of cleaning to be invalid.

3.  Decision

The appeal is allowed in part for the reasons that follow. 

Subsections 10(5) and 10(7) of the Rental of Residential Property Act, R.S.P.E.I. 1988, Cap. R-13.1 (the Act) read as follows: 

10.(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. 1998,c.100,s.2. 

10.(7)   A lessee served with a notice under subsection (5) may, within fifteen days of the date of service or such longer period as the Director may permit, apply to the Director in the form prescribed by regulation for a determination on the disposition of the security deposit, in which case he shall serve a copy of the application on the lessor. 1998,c.100,s.2. 

Section 6 of the Act contains Statutory Condition number 4 which reads as follows:

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. 

As a matter of record, the Commission notes the submission of the Appellant that Velda Shaw, not Vera LeLacheur, represented Place Royale Inc. in the hearing before the Director.  Further, the Commission also notes that Order LD04-280 incorrectly identified the lessor as "Place Royale Inn".   

While the Respondent maintains that the damage to the hardwood floor existed at the time when he moved into the apartment, the Commission notes that the "Rented Unit Condition Report" completed on January 27, 2003 and signed by the Respondent makes no mention of damage to the hardwood floor.  This report does refer to a mark on the kitchen counter top.  Had the hardwood floor been in fact damaged at the time the Respondent moved in it would be reasonable for a note to this effect to have been made on the report at the request of the Respondent.  Instead, the report refers to the livingroom floor as "new hardwood".  Accordingly, the Commission accepts the Appellant's claim of $50.00 for damage to the hardwood floor occurring during the Respondent's occupation of the apartment.

With respect to the Appellant's claim of $140.00 for cleaning the apartment, based on 14 hours labour at $10.00 per hour, the Commission notes that the Respondent admitted that he smoked in the apartment and that he didn't wash any of the walls himself.  Upon a review of the written statements from the Respondent and two members of his family introduced at the hearing (Exhibit E-10) it appears that some, but not all, of the apartment walls were washed.  Based on this evidence, combined with the photographs filed by the Appellant (Exhibit E-3), the Commission is satisfied that it was necessary for the Appellant to incur a portion of the cost of cleaning the apartment. 

However, the Appellant's representative testified that approximately three hours of cleaning is normally necessary to get an apartment ready for the next tenant and the cost for this "normal" cleaning is not deducted from the previous tenant's security deposit.  On the basis of this testimony, the Commission finds that the cleaning charge claimed by the Appellant shall be adjusted from fourteen hours to eleven hours and therefore the Commission accepts a claim of $110.00 for cleaning, based on a labour rate of $10.00 per hour.  

Form 8 notes that the original security deposit paid by the Respondent to the Appellant was $374.00.  The Appellant identified the sum of $190.00 to be retained, with $191.02, representing the balance of the security deposit including interest, returned to the Respondent. With respect to the $190.00 retained from the security deposit, the Commission finds that the Appellant incurred the total sum of $160.00 for damage to the hardwood floor and required additional cleaning and the Appellant may retain this sum from the damage deposit.  The remaining sum of $30.00 shall be returned to the Respondent. 

The Commission therefore orders that of the $190.00 retained from the security deposit, $160.00 be paid to the Appellant and the remaining $30.00 be paid to the Respondent.

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