Order LR11-21 - Rental Appeal - Docket LR11018 - Mohammad Sepahdoost v Director of Residential Rental Property

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Docket LR11018
Order LR11-21

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Mohammad Sepahdoost against Order LD11-137 issued by the Director of Residential Rental Property dated June 8, 2011.

BEFORE THE COMMISSION

on Thursday, the 11th day of August, 2011.

John Broderick, Commissioner
Michael Campbell, Commissioner
Peter McCloskey, Commissioner

Order

BACKGROUND

On June 30, 2011 the Commission received a Notice of Appeal filed by H. Sanayie, representative of Mohammad Sepahdoost (the Appellant). The Appellant appealed Order LD11-137 issued by the Office of the Director of Residential Rental Property (the Director) on June 8, 2011.

By way of background, on December 2, 2010, the Appellant filed with the Director a Form 9 - Application re Determination of Security Deposit. On May 17, 2011 Zita Roberts (the Respondent) filed with the Director the Form 8 - Notice of Intention to Retain Security Deposit dated November 22, 2010.

The matter was initially heard by the Director on May 17, 2011. In Order LD11-137 the Director ordered that:

"The lessor is entitled to receive the security deposit funds of $650.00 currently held in trust upon the expiry of the appeal period."

The Commission heard this appeal on July 18, 2011. The Appellant was represented by Arvin Sepahdoost (Mr. Sepahdoost) and Bill Taylor testified on behalf of the Appellant. The Respondent was also present.

EVIDENCE

Mr. Sepahdoost testified that the Respondent stored many of her own items in the residential premises. He also testified that the damage to the kitchen floor resulted from a leaking refrigerator. He noted that the Appellant's family had told the Respondent that the refrigerator was leaking. He noted that they regularly wiped up the water. The Respondent attempted to fix the problem herself without success. The Respondent then hired a repair person to fix the refrigerator and the leak problem was solved but by then the floor was damaged. Mr. Sepahdoost also testified that the "glue" around the bathroom sink was coming off so they asked the Respondent to send someone to fix it. He also testified that there were no stains on the cushions and, when they first moved in, they never thought to examine under the cushions for stains. He testified that they did not have crayons in the house and thus the damage to the Respondent's dresser drawer must have been done by someone else.

The Respondent testified she rented the residential premises to the Appellant's family on a fully furnished basis. The Appellant was permitted to use the treadmill. The damage to the kitchen floor was to the sink, stove and dishwasher area and in the front entrance area, not in front of the refrigerator. The bathroom was not 35-40 years old; rather it had been recently renovated. The sink in the bathroom vanity had "moved in by as much as three inches". The circular fluorescent tube for the bathroom fan light was missing and the batteries were missing for the gas fireplace remote control.

DECISION

Based on the evidence heard by the Commission at the July 18, 2011 hearing, the Commission agrees with the Director that the Respondent is entitled to retain all of the security deposit, and thus the appeal is hereby denied. However, the Commission has varied the quantum of two of the valid claims as explained in the reasons below.

With respect to the claim for $59.22 for miscellaneous items, the Commission reduces this claim by $15.00 as the replacement of the round fluorescent light tube ought to be considered part of normal wear and tear. Accordingly, this claim is reduced to $44.22.

The Commission agrees with the Director that the claim for $200.00 for the cleaning of the "luminettes" [a system of window coverings] is valid.

The Commission notes Exhibit E-12, a May 9, 2011 letter from Stuart MacDonald, the Respondent's caretaker. This letter is helpful in considering the claim of $300.00 for damage to the flooring in the kitchen and front entry. The evidence of Mr. Sepahdoost was that the kitchen floor damage was caused by the leaking refrigerator. However, Mr. MacDonald's letter notes that the hardwood floor was damaged in both the kitchen and in the front entry. It is difficult to see how the leaking refrigerator would have caused damage to such a widespread area. Accordingly, the Commission finds that the claim of $300.00 is valid.

With respect to the claim for damage to various items of wooden furniture, the Commission notes that the estimated cost of refinishing these items is $400.00. However, the Commission accepts the evidence of Mr. Sepahdoost with respect to the dresser drawer and finds that the Appellant's family was not responsible for the crayon damage to the inside of the dresser drawer. Accordingly, the Commission reduces the claim for furniture refinishing to $300.00. The Commission, like the Director, has jurisdiction to allow damage claims only to the limit of the security deposit. The Director had limited the $400.00 claim to $90.78 based on the amount remaining from the security deposit. Given the reduction of the claim for miscellaneous items, the Commission is able to increase this limitation by $15.00. On this basis, the Commission limits the $300.00 claim to $105.78.

The Commission notes that both parties appeared to be very honest in their evidence before the Commission. The Commission finds that there was no evidence of wilful damage; however, some damage did nonetheless occur and the Commission is satisfied that the quantum of such damage would not be less than $650.00. That said, the Commission is not convinced that the Appellant's family was responsible for all the various damages alleged by the Respondent. The Commission is of the view that the inclusion of a landlord's personal items in furnished residential premises is problematic in general but especially so where such items are much more costly than would normally be provided for in such premises.

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Rental of Residential Property Act:

IT IS ORDERED THAT

1. The appeal is denied.

2. The Commission varies the quantum of two of the valid claims noted in the Director's findings in Order LD11-137. However the Commission agrees with the end result and thus upholds the Director's decision.

3. The Respondent [lessor] is entitled to retain the complete security deposit in the amount of $650.00.

DATED at Charlottetown, Prince Edward Island, the 11th day of August, 2011.

BY THE COMMISSION:

John Broderick, Commissioner

Michael Campbell, Commissioner

Peter McCloskey, Commissioner

NOTICE

Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:

26.(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.

NOTICE: IRAC File Retention

In accordance with the Commission's Records Retention and Disposition Schedule, the material contained in the official file regarding this matter will be retained by the Commission for a period of 2 years.