Docket A-003-93
Order LR93-7IN 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 Tracy MacDonald (the Lessee) against Order No. LD93-20 of the Director of Residential Rental Property dated February 3, 1993.Friday, April 2nd, 1993
John L. Blakney, Vice-Chairman
Michael Ryan, Commissioner
Myrtle Jenkins-Smith, Commissioner
Order
Participants
1. Appellant
Tracy MacDonald (Lessee)
2. Respondent
Ann Hay (Lessor)
Reasons for Order
1 Background
The Lessor owns the property located at Hampshire, Prince Edward Island and the Lessee rented the apartment July 1, 1992 until November 30, 1992.On December 9, 1992, the Lessor completed Form 8—Notice of Intention to Retain Security Deposit and forwarded it to the Lessee. The Lessor believed that retention of the security deposit in the amount of $168.50 plus interest was warranted because of the physical damage to the fridge, missing curtain rods, damage to the bathroom fixtures and damage to the walls and the entrance door to the apartment.
On December 11, 1992, the Lessee filed with the Director of Residential Rental Property (the Director) an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Form 2). The Lessee requested the Director to find the security deposit be returned in the amount of $212.50.
On January 28, 1993, the Director inspected the residential premises located at Hampshire.
On February 3, 1993, the Director held a hearing with both parties in attendance. On February 26, 1993, the Director issued Order LD93-20. The Director made the following conclusion:
... the Director finds that the Lessor shall retain $60.00 which represents $10.00 for wallpaper and $50.00 for steam cleaning the carpets. The interest on the security deposit is calculated at approximately $4.86. The remaining amount of the security deposit shall be returned to the Lessee.
Consequently, the Director ordered that:
The Lessor shall return to the Lessee the sum of $157.36 on or before February 26, 1993.
Subsequent to the issuance of Order LD93-20, the Lessee filed with the Island Regulatory and Appeals Commission (the Commission) a Notice of Appeal (Form 17) on February 8, 1993. The reasons for the appeal stated in the Notice are as follows:
I do not agree with having to pay $10 for the wallpaper when I did not put the holes in the wall. I do not have any arguments on paying $50 for the carpets.
The Commission heard the appeal on March 9, 1993.
2 Evidence & Argument The Lessee submitted that she had rented the apartment unit for five months and during the time of her tenancy she put a few holes in the wall to hold her curtain rods but she was not responsible for the holes in the wall that was papered. However, she did admit to putting a screw in one of the existing holes to hang a picture. When she moved into the unit the Lessee assumed that the Lessor knew about the holes in the wall and, therefore, did not report the condition of the wall. The Lessor argued that the Lessee was responsible for the holes and that the anchors she found in the papered wall were the same as those used to hold the curtain rods in place. Under the instructions of the Director the Lessee repaired the holes in the wall to the satisfaction of the Lessor.The Lessor submitted that the Lessee installed a dead bolt on the entrance door without receiving her permission. When the bolt was removed holes were left in the door and door moldings. Although the Lessee attempted to repair the holes, they were not repaired to her satisfaction.
In addition, the Lessor submitted that she did not agree with the Director's Order and that the Lessee was responsible for the damage to the bathroom fixtures—specifically, the crack in the toilet seat. She also submitted that the Lessee was responsible for the damage to the freezer door on the refrigerator and that the Lessee had taken the curtain rods from the unit.
In rebuttal, the Lessee argued that the crack in the toilet seat had been there when she moved in and she was not responsible for the damage. The Lessee did not realize there was anything wrong with the freezer door—only that how it worked was annoying. In regards to the curtain rods, the Lessee submits that the Lessor did not provide rods—or at least there were not any provided in the apartment when she moved into the unit. The Lessee borrowed the curtain rods from her father.
3 Decision
Although the Lessee has only appealed the decision of the Director to find her responsible for contributing $10.00 to the purchase of new wallpaper, according to Section 26(1) of the Act the Commission must re-hear the matter. Consequently, the Lessor has the right to argue against the order of the Director. In this particular case, the Lessor did go beyond the issue of retaining the $10.00 and argued that the Director erred in not finding that she should retain the entire security deposit. Consequently, the Commission must deal with all relevant matters raised by both the Lessee and the Lessor.Based on the evidence presented, the Commission is unclear as to whether or not the Lessee is responsible for the holes in the wall. Clearly she is responsible for those made to accept holders to hang the curtain rods and most likely enlarging what the Lessee stated was an existing hole to permit the hanging of a picture. The Commission believes that the purpose of the security deposit is to partially reimburse the Lessor for damage caused by a Lessee considered to be beyond what could be considered normal wear and tear under normal habitation of a residential unit. The Commission finds that the hanging of pictures and the use of security devices on entrance doors to be a normal activity in an apartment or any residential unit. Consequently, the Commission believes that the holes in the wall should be considered a normal condition of occupancy unless there are an excessive number or they are excessive in size. The Commission finds there is no evidence that there was an excessive number or that they were excessive in size, in fact, for the most part the Lessee fixed the holes to the satisfaction of the Lessor. The Commission finds that it is not necessary for the Lessee to compensate the Lessor in the amount of $10.00 for the wallpaper.
After considering the evidence submitted by the Lessor on the matter of the damage to the bathroom fixtures—specifically, the toilet seat—damage to the refrigerator and the missing curtain rods, the Commission finds that it cannot conclude that the Lessee is responsible for these damages.
The Lessee has agreed to the Lessor retaining $50.00 for the cleaning of the carpets and the Commission will allow the Lessor to retain that amount from the security deposit.
In conclusion, the Commission allows the appeal and finds that the Lessor shall retain $50.00 to cover the cost of the steam cleaning of the carpets. The remaining amount of the security deposit plus interest shall be returned to the Lessee.
Accordingly,
1. The appeal is allowed;
2. The Order of the Director is varied; and
3. The security deposit of $162.50, plus interest to date of $7.18, is due and payable to the Lessee on or before April 16, 1993.
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 Tracy MacDonald (the Lessee) against Order No. LD93-20 of the Director of Residential Rental Property dated February 3, 1993.
Order
UPON
the appeal of Tracy MacDonald against a decision of the Director of Residential Rental Property dated February 3, 1993;AND UPON
hearing the appeal conducted in Charlottetown on March 9, 1993;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The appeal is allowed;
2. The Order of the Director is varied; and
3. The security deposit of $162.50, plus interest to date of $7.18, is due and payable to the Lessee on or before April 16, 1993.
DATED
at Charlottetown, Prince Edward Island, this 2nd day of April, 1993.BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Micheal Ryan, Commissioner
Myrtle Jenkins-Smith, Commissioner
