Order LR94-01 - A-010-93 - Rental Appeal - Wayne & Linda Farrell v. Ken Marshall (Feb 3, 1994)

Docket A-010-93
Order LR94-1

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 Wayne and Linda Farrell (the Lessees) against Order No. LD93-165 of the Director of Residential Rental Property dated October 19, 1993.

Thursday, February 3, 1994

Linda Webber, Chair
James Nicholson, Commissioner
Clayton Bulpitt, Commissioner

Order

Participants

1. Appellants

Lessees
Linda Farrell
Wayne Farrell

Witness
Michael MacNaught

2. Respondent

Lessor
Ken Marshall

Reasons for Order

1 Background

The Appellants were Lessees at 256 St. Peters Road in Sherwood, P.E.I. at the times relevant to this matter. The Lessor was Ken Marshall.

While there were disputes of varying sorts between the Lessor and Lessees during the term of the tenancy, this matter came to the Director of Residential Property as a result of a Notice of Intention to Retain Security Deposit dated September 3, 1993 served by the Lessor upon the Lessees. The reasons given by the Lessor on the notice are: mold and mildew on the ceilings and walls and in the closet, caused by a dryer not vented outside; and, kitchen cupboards, fridge and stove needing to be fixed and painted.

The Director's decision indicates that during his investigation the Director heard additional allegations of wrongdoing by the Lessor, and counter-allegations of wrongdoing by the Lessees. The Director concluded with a finding of problems with the ventilation of the apartment unit prior to the Lessees' occupation which were exacerbated by the use by the Lessees of a dryer not vented to the outside. For having to clean the fridge and stove the Lessor was awarded $20 compensation. The balance of the security deposit was split between the parties.

By Notice of Appeal dated November 5, 1993 the Lessees appealed the Director's decision stating, "We are not the cause of the damage (mold and mildew)."

2 Evidence & Arguments

The Lessees provided many written statements detailing problems with the unit and problems with the conduct of the hearing and witnesses relied upon by the Director. They also provided a videotape made by the Lessor to show the mold damage to the unit, and commented upon the video. While this video was not viewed at the hearing, the Commissioners all viewed it after the hearing.

The Lessor and the Lessees also appeared before the Commission to give evidence at an oral hearing.

Overall, the Lessees took the position that the apartment had a humidity problem when they moved in so they shouldn't be blamed for it. They argued that their dryer was vented indoors in accordance with the manufacturer's instructions and shouldn't be blamed for causing moisture problems in the apartment. The Lessor's comments that the dryer was adding to their moisture problem and, as a result, they shouldn't use it were dismissed by the Lessees because he didn't " prove it", put it into writing or order them to stop using it; he just " suggested" it. The Lessees pointed out that they couldn't open the windows in the winter—they were frozen shut—and complained to the Lessor about water on the walls and ceilings.

Regarding the cleaning of the apartment, the Lessees noted that the day they moved out there were plumbers and electricians working in the apartment and they had to move out around them.

The Lessor said he saw some moisture problems when he bought the property and admitted that there were no vents in the bathrooms. His belief was that this wouldn't have caused all the problems. He only purchased the building in August just before the Lessees gave notice they were leaving. The Lessor stated that he was asked by the Lessees about the need to have the carpet cleaned and agreed it was not necessary, but never said other cleaning did not need to be done. However, he admitted that there were workmen in the apartment at the same time the Lessees were moving out.

3 Decision

The evidence indicates there was a moisture problem in the unit rented by the Lessees. The Lessor knew of this problem, as did his predecessor; lack of a fan in the bathroom would not help this problem. However, the actions of the Lessees give rise to liability as well. While they may have vented the dryer in the manner suggested by the manufacturer, to do so in an apartment they knew had a moisture problem was to compound the problem. Even if they had not "thought of it" earlier, the comments by the Lessor at the time should have been sufficient—even though not in writing or as an order—to bring it to their attention.

As for the cleaning of the fridge and stove, while it is usually the Lessees' responsibility, the Lessor must accept that the presence of his workmen were an interference and most likely added to the confusion of the move and the end result.

While numerous other allegations and complaints were made by the Lessees—both orally and in writing—we find them not relevant to the issue we are to deal with. Unfortunately, there appears to be substantial animosity on the part of the Lessees to the Lessor even though the Lessor only owned the property 1-2 weeks before the Lessees gave him notice they were leaving. Unlike the Lessees, the Lessor is just dealing with the condition of the apartment at the time of their departure, not the history of their occupation.

Overall, the problem of mold and mildew in the apartment seems to be, to a great extent, a result of the design of the apartment. However, the actions of the Lessees added to the problem and their use must be considered a contributing factor.

Accordingly,

1. Order LD93-165 of the Director is varied; and

2. On the expiration of the required appeal period of 15 days:

a) Sixty percent, or $154.36, of the security deposit shall be paid to the Lessees; and

b) Forty percent, or $102.91, of the security deposit shall be paid to the Lessor.

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 Wayne and Linda Farrell (the Lessees) against Order No. LD93-165 of the Director of Residential Rental Property dated October 19, 1993.

Order

UPON the appeal of Linda and Wayne Farrell against a decision of the Director of Residential Rental Property dated October 19, 1993;

AND UPON hearing the appeal conducted in Charlottetown on November 30, 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. On the expiration of the required appeal period of 15 days:

a) Sixty percent, or $154.36, of the security deposit shall be paid to the Lessees; and

b) Forty percent, or $102.91, of the security deposit shall be paid to the Lessor.

DATED at Charlottetown, Prince Edward Island, this 3rd day of February, 1994.

BY THE COMMISSION:

Linda Webber, Chair
James Nicholson, Commissioner
Clayton Bulpitt, Commissioner