Order LR94-02 - A-001-94 - Rental Appeal - Deborah Phalen v. Barry MacDonald (Jun 29, 1994)

Docket A-001-94
Order LR94-2

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 Debra Phalen (the Lessee) against Order No. LD94-032 of the Director of Residential Property dated March 28, 1994.

Wednesday, June 29, 1994

John L. Blakney, Vice-Chair
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner

Order

Participants

1. Appellant

Paul Chandler (on behalf of Debra Phalen—the Lessee)

2. Respondent:

Barry MacDonald (the Lessor)

Reasons for Order

1 Background

The facts of the case are as follows:

On December 10, 1993, the Lessor received a security deposit from the Lessee in the amount of $250.00.

On December 15, 1993, the Lessee took up occupation of the residential premises located at 485 St. Peters Road, Charlottetown.

On January 7, 1994, the Lessor served a Notice of Termination on the Lessee for failure to pay rent in the amount of $525.00 which was due January 1, 1994.

On January 15, 1994, the Lessee vacated the same premises.

On January 21, 1994, the Lessor filed a Notice of Intention To Retain Security Deposit for the following reasons:

4 windows broke $120.00

Frozen pipe $125.00

Clean fridge and stove $ 35.00

Rent owing $525.00

NSF cheque $ 25.00

On February 18, 1994, the Lessee filed Form 2—Application For Enforcement of Statutory or Other Conditions of Rental Agreement asking that the Director of Residential Rental Property find that the security deposit be returned.

On Monday, March 28, 1994, the Director held a hearing on the matter and that same day issued an order stating:

The lessor has served the lessee a notice of Intention to Retain the Security Deposit in compliance with the provisions of the Act.

The security deposit plus interest shall be retained by the lessor.

In response to Order LD94-032 the Lessee filed a Notice of Appeal with The Island Regulatory and Appeals Commission on March 30, 1994 and the Commission heard the appeal April 28, 1994.

2 Decision

Based on the evidence heard during the hearing, the Commission confirms the decision and Order of the Director. The reasons for the decision are the following:

The Commission finds that despite the fact the unit may have been in disrepair, the Lessee moved into the premises on December 15,1993. As a result of an agreement with the Lessor, rent was owing beginning January 1, 1994.

The Commission is satisfied that the Lessee did not pay rent for the period during which she occupied the premises at 485 St. Peters Rd. The Commission cannot find any provision under the Act that would permit the Lessee to withhold the payment of rent. The state or condition of the premises is no reason for taking it upon herself to withhold payment of rent.

There is no question that the Act places an obligation on the Lessor to keep the premises in a good state of repair, however, there are formal procedures and remedies for dealing with such matters. The Act does not allow a Lessee on his/her own accord to take action by withholding rent.

According to Section 13(1) of the Act, after being served with a Notice of Termination by the Lessor, the Lessee has 20 days or more in cases so stipulated by the Lessor to vacate the premises. In this case, the Lessee chose to leave the premises on January 15 and not January 27 to which she was entitled. In the Commission's view, moving from the premises before the expiration of the 20-day period did not free her from an obligation for paying rent due. Consequently, the Commission finds that the Lessee is responsible for rent owing for 27 days or $457 ($525 divided by 31 days = $16.94/day x 27 days). However, the Commission does believe that the condition of the premises caused the Lessee to suffer certain inconveniences and financial costs and should be appropriately compensated.

In the result, the Commission finds that the decision of the Director adequately compensates both parties. The Lessor can retain the security deposit to compensate for the difference in rent owing and the amount owed to the Lessee compensates for the condition of the unit. There is no need to vary the Order of the Director.

Accordingly,

1. The appeal is denied; and

2. The Order of the Director is confirmed.

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 Debra Phalen (the Lessee) against Order No. LD94-032 of the Director of Residential Property dated March 28, 1994.

Order

UPON the appeal of Debra Phalen against a decision of the Director of Residential Rental Property dated March 28, 1994;

AND UPON hearing the appeal conducted in Charlottetown on April 28, 1994;

NOW THEREFORE, for the reasons given in the annexed Reasons for Order;

IT IS ORDERED THAT

1. The appeal is denied;

2. The Order of the Director is confirmed.

DATED at Charlottetown, Prince Edward Island, this 29th day of June, 1994.

BY THE COMMISSION:

John Blakney, Vice-Chairman
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner

NOTICE

Sections 13.(1) and 13.(2) of the Island Regulatory and Appeals Commission Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.