Docket A-004-05
Order LR05-03

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Cynthia Allaire and Nicholas DesRoches against Order No. LD05-137 of the Director of Residential Rental Property dated May 18, 2005.

BEFORE THE COMMISSION

on Friday, the 8th day of July, 2005.

Weston Rose, Commissioner
Norman Gallant, Commissioner
Kathy Kennedy, Commissioner

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Order

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Participants

1.   Appellants:

Cynthia Allaire
Nicholas DesRoches

2.  Respondent:

PRM Holdings Inc.

Represented by:
Paul Gallant and Glenda Gallant

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Reasons for Order

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1.  Introduction

Cynthia Allaire and Nicholas DesRoches (the Appellants) appealed Order LD05-137 (Exhibit E-11) issued by the Office of the Director of Residential Rental Property (the Director) on May 18, 2005.  The Appellants' Notice of Appeal (Exhibit E-12) was received by the Island Regulatory and Appeals Commission (the Commission) on June 7, 2005. 

The Director's Order and the present appeal concern apartment #2 located at 17 Brown's Court in Charlottetown (the Apartment).

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Monday June 27, 2005.

2.  Background

The Appellants had entered into a fixed term rental agreement with the Respondent which expires on July 31, 2005.  On March 10, 2005 the Appellants made an application pursuant to section 8.(a) of the Rental of Residential Property Act (the Act) submitting that Statutory Condition 6.1 relating to the condition of the apartment had been contravened.  The Appellants sought an order terminating the rental agreement or, presumably in the alternative, requiring the repair of the apartment.  The Appellants also requested an inspection of the apartment as soon as possible.

The Director conducted two inspections, the first on March 24, 2005, with an on site hearing attended by all parties following the inspection on the issue of the condition of the apartment and a second inspection on May 3, 2005. 

In Order LD05-137 the Director dismissed the Appellants' application for an April 30, 2005 termination of the rental agreement.  However, the Director did order that the Respondent correct deficiencies as set out in said Order.

3.  Decision

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

Statutory Condition 6.1 reads as follows:

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:

Condition of Premises
The lessor shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any enactment respecting standards of health, safety or housing notwithstanding any state of non-repair that may have existed at the time the agreement was entered into.

Upon a review of the evidence, the Commission finds that the apartment experienced water leaks from the master bedroom window over a period of many months.  The Commission finds that the Respondent attempted repairs which were at first unsuccessful.  Over the winter of 2004-2005, further repairs were not feasible.  In April 2005, extensive repairs were conducted which appear to have been successful.

However, the Commission finds that the repairs were not fully complete when the Appellants moved out of the apartment on or about May 1, 2005.  In particular, the window trim had not been reinstalled as the contractor wished to wait to see if the repair had been successful.  At the hearing before the Commission, it was stated that the contractor was on vacation in early May 2005.  Presumably the contractor inspected the repair and installed the window trim thus completing the repair later in May 2005 following his vacation.

The Commission finds that the Appellants were effectively unable to sublet the apartment during the month of May, as the repairs to the apartment undertaken in April 2005 were not completed until sometime in May 2005.  However, there is no reason why the apartment could not have been sublet for the months of June and July.

The rental agreement would normally have ended on July 31, 2005.  However, as the apartment was not ready to be sublet for May 1, 2005 due to the incomplete repairs, the Commission hereby orders that the rental agreement be terminated one month early, said termination taking effect on June 30, 2005.

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