Docket A-008-93
Order LR93-12IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C. R 13.1,
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Darlene Walsh (the Lessor) against Order No. LD93-143 of the Director of Residential Property dated August 27, 1993.
Wednesday, December 15, 1993 John L. Blakney, Vice-Chairman
James Nicholson, Commissioner
Deborah MacLellan, Commissioner
Order
Participants
1. AppellantDarlene Walsh
2. Respondents
Gloria Warren
John Warren3. Witness for Respondents
Judy Jenkins
Reasons for Order
1 Background
Darlene Walsh is the Lessor of the residential premises located at 36 John Street, Cornwall, Prince Edward Island. The premises is rented to John and Gloria Warren.
On July 27, 1993, the Lessor served a Form 4, Notice of Termination by the Lessor of Rental Agreement, on the Lessees indicating she was terminating the rental agreement for failure to pay rent due on July 1, 1993, in the amount of $200.00.
On the same day, the Lessor filed with the Director of Residential Rental Property an Application By Lessor For An Order for the Lessees to vacate the premises on or before August 16, 1993.
On Wednesday, August 11, 1993, the Director held a hearing at which submissions on the matter were presented by the parties.
As a result of the hearing, the Director issued Order LD93-143 which ordered that:
1. The rental agreement shall not be terminated;
2. The rent shall become due on the first of every month.
Subsequently, the Lessor filed Form 17, Notice of Appeal, with The Island Regulatory and Appeals Commission (the Commission) appealing the Order of the Director.
2 Evidence & Arguments
The LessorThe Lessor submitted that the Lessees originally started paying their rent on the first of the month however, on many occasions during their tenancy they made late payments. The rent was usually paid by cheque and on a few occasions were returned because of insufficient funds. The Lessor depended on regular payment of rent to satisfy her monthly mortgage payments for the premises but at times had to use her own personal funds to cover her obligation because she was having problems collecting all the rent. Usually rent was owed. In July of 1993, the Lessor found the Lessees in a situation where they again were in arrears for rent, in the amount of $200.00, and therefore filed the notice to terminate the rental agreement. The Lessees have since settled their rent owing account.
In addition, by the actions of the Lessees the premises has been damaged beyond what could be considered normal wear and tear. The Lessor submitted that on two occasions there was flood damage and initially at her own expense she had to clean-up the unit but the Lessees have since satisfied what was owed for the clean-up.
The Lessor submitted that the Lessees had painted the kitchen cupboards and the front door without her permission. Also, they changed the color of the fridge and stove without her permission and furthermore turned the stove on before the enamel paint dried which caused the refinished surface to turn brown.
The Lessees damaged some of the screens and the screen door and they should be responsible for repairing them.
The Lessees have a 1/4 ton truck parked at the location of the rental premises which to the Lessor's knowledge is inoperative and should be removed.
Despite that a request has been made by the Lessor for the Lessees to provide her with a key to the premises they have not and requests that they be required to do so.
The Lessor specifically requests the Commission to do the following:
1. Order that the Lessees repair or fix the stove and the damaged screen;
2. Require the Lessees to get permission in writing before proceeding to change anything in the premises, including painting of walls and fixtures;
3. Permission to enter the premises every 30 days to inspect; and
4. That necessary repairs be made within 30 days.
If the above requests cannot be satisfied then the rental agreement should be terminated.
In her summary, the Lessor indicated to the Commission that provided the rent was caught up and in future paid on time and the Lessees sought written permission to make any material changes to the unit there is no reason to terminate the rental agreement.
The Lessees
The Lessees submitted that from time to time they have been late with the rent, however, they always brought themselves even. There were only 3 occasions when cheques were returned because of insufficient funds and the Lessor was reimbursed for the cost of the NSF cheques. Gloria Warren indicated that when she was unable to pay her rent entirely she would call to inform the Lessor that as soon as funds were available she would be paid.
The Lessees argued that during all this time the Lessor never served them a Notice of Termination.
In regards to the flood, the Lessees argued that even though they were not responsible for the flooding of the basement, they have compensated for the clean-up in cash payment or John Warren's labor in lieu of cash.
Gloria Warren informed the Commission that she had invested a lot of money in redecorating the premises, including painting the kitchen cupboards. She did admit that when she refinished the stove that she turned it on before the paint cured which caused it to turn brown.
The Lessees argued that they were not responsible for the damage to the screens but John Warren agreed that he would repair them himself.
As for the parked truck, Mr. Warren indicated that the truck was only temporarily out of service and would be repaired.
Gloria Warren indicated to the Commission that she has invested time and money in the premises and would like to stay.
The Lessees ask that the Lessor be required to give them a receipt at the time the rent is paid.
3 Decision
The Commission has considered the submissions of both parties and finds that an amicable solution can be reached. In fact, it was the opinion of the Commission that the parties had reached a solution towards the end of the hearing provided certain conditions are met. The following is the Commission's decision regarding this matter and the reasons for its decision.
The Commission believes that it is reasonable for any lessor to expect a lessee to pay their rent on a regular basis; even if there has been no formal agreement specifically setting a time when rent is due. The Commission also believes that it is only reasonable for any lessee to expect a lessor to give a receipt at the time of payment, verifying the amount paid. In this particular case, it is the Commission's understanding that the Lessees have paid the rent and have been in arrears on a number of occasions during the period of their tenancy. The Commission finds that the Lessees originally started paying rent on the first day of the month and, therefore, will resume payment on the first day of each and every month. The Commission believes that it is only reasonable to require the Lessor to provide the Lessees with a receipt verifying the amount received for rent at the time of payment.
In regards to the damage to the premises and other issues raised, it is the Commission's opinion that:
(a) The matter of the water damage and clean-up caused by the flooding of the finished basement on two separate occasions has been settled between the two parties and there is no need for the Commission to make a finding.
(b) Mr. Warren will repair the 1/4 ton truck as soon as the proper parts are obtained. The Commission believes that it is reasonable for a Lessor to allow a vehicle in disrepair to be properly parked for a reasonable period of time. However, the onus is on the owner of the vehicle to have it repaired as soon as practical or have it removed to a more appropriate location.
(c) Mr. Warren agreed to repair the damaged screens.
(d) Mrs. Warren invested a great deal of time and money into redecorating the kitchen cupboards and the front door. The Commission views this as an effort on her part to keep the premises in a good state of repair. However, the Commission must agree with the Lessor that if a lessee makes changes to the premises that permission should first be acquired from the lessor.
(e) The Lessees have agreed to correct the problem with the discoloration of the top of the stove.
(f) According to subsection 6.6 of the Act, in the case of an emergency the lessor can enter a residential premises, and on other occasions can enter the premises with the consent of the lessee or provided proper notice is served. The Lessor informed the Commission that she does not have a key to the premises and believes that she should have one in order to enter the premises under the conditions set by subsection 6.6. The Commission cannot agree with the Lessor's request to be allowed to enter the premises every 30 days. However, she has the right to enter the premises pursuant to subsection 6.6.
6.6. Entry of Premises
Except in the case of emergency, the lessor shall not enter the premises without the consent of the lessee unless the lessor has served written notice stating the date and time of the entry to the lessee at least twenty-four hours in advance of the entry and the time stated is between the hours of 9 a.m. and 9 p.m.
The Commission believes there is the will on the part of both parties to maintain the present lessor - lessee relationship provided that the above noted requirements are met. In view of this, the Commission can see no reason to terminate the rental agreement at this time. However, it is necessary for the Lessees to pay the rent promptly on the first of each and every month, if not, then the rental agreement should be terminated immediately.
Accordingly,
1. The Order of the Director is varied; and
2. The Commission requires that:
· the Lessees pay the rent on or before the first day of each and every month, unless written permission is received from the Lessor, prior to the rent being due, that the Lessor will accept late payment;
· the Lessor provide a receipt for payment at the time payment is made;
· the Lessees repair the truck or have it removed to a more appropriate location within 60 days of the date of this Order;
· the Lessees repair the damaged screens as agreed to during the hearing and to the satisfaction of the Lessor;
· the Lessees receive written permission from the Lessor before making any structural changes or re-decorating the premises; and
· the Lessees make the key or keys to the premises available to the Lessor in order to duplicate the key or keys.
If, at any time, the Lessees are late in paying the rent without the written permission of the Lessor, prior to or on the rent due date, the rental agreement is terminated.
An Order will therefore issue.
IN THE MATTER of the Rental of Residential Property Act, R.S.P.E.I. 1988, C. R 13.1,
and
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Darlene Walsh (the Lessor) against Order No. LD93-143 of the Director of Residential Property dated August 27, 1993.
Order
UPON
the appeal of Darlene Walsh against a decision of the Director of Residential Rental Property dated August 27,1993;AND UPON
hearing the appeal conducted in Charlottetown on October 6, 1993;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The Order of the Director is varied; and
2. The Commission requires that:
the Lessees pay the rent on or before the first day of each and every month, unless written permission is received from the Lessor, prior to the rent being due, that the Lessor will accept late payment;
the Lessor provide a receipt for payment at the time payment is made;
the Lessees repair the truck or have it removed to a more appropriate location within 60 days of the date of this Order;
the Lessees repair the damaged screens as agreed to during the hearing and to the satisfaction of the Lessor;
the Lessees receive written permission from the Lessor before making any structural changes or re-decorating the premises; and
the Lessees make the key or keys to the premises available to the Lessor in order to duplicate the key or keys.
If, at any time, the Lessees are late in paying the rent without written permission of the Lessor, prior to or on the rent due date, the rental agreement is terminated.
DATED
at Charlottetown, Prince Edward Island, this 15th day of December, 1993.BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Deborah MacLellan, Commissioner
James Nicholson, Commissioner