Docket A-004-95
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Alan Read (the Lessee) against Order No. LD95-068 of the Director of Residential Property dated March 17, 1995.
Order LR95-5Wednesday, April 12, 1995
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Emmett Kelly, Commissioner
Order
Participants
1. AppellantAlan Read (the Lessee)
Barbara Read (witness)
Leslie Huestis (witness)2. Respondent Bejamin Read (the Lessor)
Clifford McCabe (legal Counsel)
Doug Read (witness)
Reasons for Order
1 Background
The Appellant is the Lessee at 821 Water Street in Wilmot, Prince Edward Island. The Lessor is Benjamin Read.
In September, 1994 and at the request of Alan Read, AJL Contractors Ltd. installed a water line for municipal water supply at 821 Water Street.
On February 16, 1995, the Lessor served the Lessee a Notice of Termination for him to give up possession of the residential premises on or before March 16, 1995. The notice cited the following as reasons for termination of the rental agreement:
An act or Commission on your part or on the part of a person permitted in or on the residential premises/property by you had seriously impaired the safety or lawful right or interest of me or other lessees in the residential property (s. 14(1)(e) of Act);
Specifically:
"In September, 1994, you engaged a contractor to install a water supply from the municipal line to the premises at 821 Water Street, Wilmot. You also had the contractor install a water line across my property to your own property/thereby acquiring a water supply for commercial purposes through my residential premises. By having this work done in this fashion, you violated my rights as owner of the property, exposed the property to damage included in the work (excavation), exposed the property to potential Mechanics' Liens, used my property to evade the proper municipal charges which ought to be charged against your own property (i.e. a meter on your own water supply)."
On February 20, 1995, the Lessee filed with the Director of Residential Rental Properties an application to set aside the Notice of Termination for the following reasons:
1) On or about July, 1994, the Lessor gave oral permission for building of water line as necessary to make premises habitable.
2) Municipal charges for water apply to all properties whether hooked into the water supply or not.
(sic) not "seriously" impaired.3) There is no Mechanics Lien and Lessors legal interests was
On March 6, 1995, a Residential Rental Property Officer (the Rental Officer) held a hearing with respect to the application by Alan Read to set aside the Notice of Termination.
Subsequent to the hearing, the Rental Officer issued Order LD95-068 that effectively denied the application to set aside the Notice of Termination and terminated the agreement as of March 16, 1995.
After receiving Order LD95-068 Lisa Goulden, on behalf of Alan Read, filed a Notice of Appeal with the Island Regulatory and Appeals Commission on March 20, 1995. The reasons for the appeal as stated on the notice are:
The Hearing Officer erred in determining that Lessee did not have permission to install water line to residential premises. The Hearing Officer erred in determining that the farm building fell under the definition of residential premises.
A hearing of the Commission was held on March 30, 1995.
2 Decision
The instant matter appears to reduce down to one major question: did the actions taken by the Lessee to provide municipal water service to the subject premises constitute material grounds for termination of the rental agreement?
The Commission understands from the evidence given at the hearing that since the parties entered into the rental arrangement the relationship between the Lessor and the Lessee can be characterized as antagonistic and subject to confrontations from time to time. It is also clear to the Commission that due to the Lessor's serious health condition his attention and ability to deal with matters of property have been impaired during the period of this rental agreement. The situation that the Lessor has recently experienced must be considered in the Commission's deliberations on this matter.
The Commission heard conflicting evidence as to what was understood by the Lessee as permission to service the property with municipal water and the rejection of such a proposal by the Lessor. The Commission can not find in the evidence of the Lessee or his witnesses where the Lessor gave clear permission to install the water service. Even though the Appellant believed that he had permission to engage the services of a contractor to install the water system it is clear to the Commission that the Lessor did not want the system. The Commission accepts the evidence of Leslie Huestis in that her conversation with the Lessor indicated his concern over installation of the water system but that he did not want to be involved. However, it is the view of the Commission that this does not necessarily mean the Lessor supported the project or gave permission. Even his attendance at the site during installation of the water line does not necessarily mean he was conceding permission.
The Commission believes that the installation of an essential service to a property is a significant decision and one that the Lessor must make. It is not comparable to a Lessee deciding to paint and do minor repairs or renovations. Consequently, the Commission finds that it is reasonable to think that the decision to provide the municipal water service is one of such magnitude that only the owner of the property can make. In this case, no matter the good intentions of the Lessee and what he might have understood to be permission the Commission finds that the Lessor did not give clear authority to the Lessee to install a municipal water line. It is not reason enough to argue, as did the Lessee, that he intended to pay for the service, that it is an improvement to the property and that the municipality will eventually require hook-up to the municipal system. It is clear from the Lessor's testimony that he did not agree with providing municipal water to the property and from Leslie Huestis that he had concerns about the Lessee going ahead with the project. Considering the evidence of the Lessor and Barbara Read on his inability to confront or argue things because of his fragile health, the Commission believes it reasonable that assertive action by the Lessor to stop the project might have been too much to expect.
Based on the above reasons the Commission finds that the actions of the Lessee that resulted in the installation of a water line for municipal water supply at 821 Water Street is enough to warrant the termination of the rental agreement pursuant to Section 14.(1)(e).
14. (1) The lessor may also serve a notice of termination upon the lessee where
(e) the safety or other lawful right or interest of the lessor or other lessee in the residential property has been seriously impaired by an act or omission of the lessee or a person permitted in or on the residential property or residential premises by him."
In the result the Commission can find no substantive reason to quash the decision and order of the Residential Rental Property Officer.
Therefore, the Commission affirms the decision and order of the Rental Officer and the rental agreement is terminated. In the absence of any further rental agreement between the Lessor and the Lessee the termination is effective as of March 16,1995.
Accordingly,
1. The appeal is denied;
2. The Order of the Director is confirmed.
3. The rental agreement is terminated effective March 16, 1995.
An Order will therefore issue.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Alan Read (the Lessee) against Order No. LD95-068 of the Director of Residential Property dated March 17, 1995.
Order
UPON the appeal of Alan Read against a decision of the Director of Residential Rental Property dated March 17, 1995;AND UPON hearing the appeal conducted in Charlottetown on March 30, 1995;
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; and
3. The rental agreement is terminated effective March 16, 1995.
DATED at Charlottetown, Prince Edward Island, this 12th day of April, 1995.
BY THE COMMISSION:
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner