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Docket A-009-95
Order LR95-8
IN THE MATTER
of an appeal, under Section 25 of
the Rental of Residential Property Act, by Benjamin Graham (the Lessor)
against Order No. LD95-131 of the Director of Residential Property dated May 29, 1995.
Friday, July 14, 1995
Linda Webber, Chair
James Nicholson, Commissioner
Clayton Bulpitt, Commissioner
Order
Participants
1. Appellant
Benjamin Graham (the Lessor)
2. Respondents
Errol Green (the Lessee)
Heather MacDonald
Reasons for Order
1 Background
The Lessee Errol Green leased premises at 52 Sydney Street, Charlottetown, P.E.I. from
the Lessor Benjamin Graham on March 1, 1993. These premises were vacated some time in
February of 1995.
The Lessor served Notice of Intention to Retain Security Deposit (Form 8) dated March
8, 1995 on the Lessee. This notice stated that all light bulbs in the apartment had been
removed, light fixtures were left dismantled, garbage was left inside and outside the
apartment, the carpets in the living room and dining room had been ruined by ground in
dirt, and the bathroom had not been cleaned.
An Application Re Determination of Security Deposit (Form 9) dated March 24, 1995 was
completed by Heather MacDonald on behalf of the Lessee and filed with the Commission. This
application denied the allegations set out in Form 8.
A hearing into this matter was held on May 1, 1995, and an Order (LD95-131) was issued
on May 29, 1995. That Order stated that the Security Deposit of $215.50 should be returned
to the Lessee.
The Lessor appealed the Decision of the Director to the Island Regulatory and Appeals
Commission by Notice dated June 6, 1995. This appeal was heard by the Commission on June
22, 1995.
2 Decision
The Notice of Appeal in this matter stated that in the opinion of the Lessor his
testimony, that of his wife Joanne Graham, her mother Rose MacInnis, and a letter of Rita
Griffin had been ignored by the Director. The Lessor stated he maintained his original
position that the apartment had not been cleaned and the condition it was in went beyond
normal wear and tear.
While "normal wear and tear" or "reasonable wear and tear" are
phrases common to leases, the case law suggests that a judgment is going to be needed in
each case to determine what is appropriate:
"Reasonable wear and tear means the reasonable use of the house by the tenant and
the ordinary operation of natural forces. The exception of want of repair due to wear and
tear must be considered as limited to what is directly due to wear and tear, reasonable
conduct on the part of the tenant being assumed. Haskell v. Marlow, [1928] 2
K.B. 45 (H.L.), as cited in Williams and Rogers on Landlord and Tenant, 6th
edition, at p. 11-28.
The evidence at the appeal was given orally by the Lessor, the Lessee, and Ms. Heather
MacDonald, the Lessee's daughter. In addition the file included a letter dated April
10, 1995 from Rita Griffin, a photocopy of a bill for carpet, and a photocopy of a
Maritime Electric bill showing when Errol Green was disconnected.
The evidence indicates that the Lessee was in the hospital when his daughter and some
friends removed his belongings and cleaned the premises in February. There is a conflict
in that the original evidence of Ms. MacDonald was that they cleaned the premises on
February 28, 1995 yet the power was turned off on February 19, 1995. In the context of all
the evidence this discrepancy does not significantly undermine the position of the Lessee.
The Lessor's complaint about "garbage" is unsubstantiated. When asked to
be specific he stated there were catalogues and miscellaneous papers and a couple of
posters left on the walls in the apartment. The Commission does not accept that these few
items constitute "garbage left in the apartment". As for his allegations of
garbage left in the hallway, the Commission believes the Lessee who stated none of the
items identified were ever his and people often left things in the hallways. Towards the
end of the hearing the Lessor stated that, "I'm not saying it was their
furniture in the hallway", yet that was the clear impression he left with the
Commission.
As for the flooring, the Lessor admits that it "wasn't high-end carpet".
It was foam-backed flooring, in place when the Lessor bought the premises in 1991. After
more than four years of use it is likely to have some stains as normal wear and tear. The
fact that the Lessor replaced the carpet is not evidence that it had undergone any
significant damage. The letter from Rita Griffin saying the apartment was in "good
condition" "when rented to the occupant" doesn't tell us which
occupant she is referring to. Assuming it is Mr. Green, the comments are still too general
to be of assistance. She may well have considered it to be in good condition after Mr.
Green left. The condition of the bathroom was described as "filthy" with soap
stains on the shower and tub enclosure and stains on the toilet and side of the bathtub.
Once again Ms. MacDonald says it was cleaned, although she herself did not clean it.
Whether or not the bathroom was cleaned is difficult to determine. The Residential
Rental Property Officer contacted a Lois MacDonald who stated that she had cleaned the
bathroom. Clearly her work was not up to the standards expected by the Lessor.
The Lessor produced little evidence of the condition of the apartment when the Lessee
moved in, except the Rita Griffin letter saying it was in "good condition", even
assuming that the letter refers to the Lessee. The Lessee's evidence is that the
condition of the premises left something to be desired when he moved in.
As for the light bulbs, the Lessee states they were there when they left, the Lessor
states they were not. In any event in our view this is not related to wear and tear. Other
courts exist to deal with damage claims.
Overall there is insufficient evidence to indicate that the condition of the premises
showed damage beyond normal, reasonable wear and tear. The onus is on the Lessor to prove
this and he has not met that onus.
The security deposit will be returned to the Lessee.
Accordingly,
1. The appeal is dismissed;
2. The Order of the Director is confirmed; and
3. The security deposit in the amount of $215.50 is to be paid to the Lessee on, or
before, July 28, 1995.
IN THE MATTER of an
appeal, under Section 25 of the Rental of Residential Property Act, by
Benjamin Graham (the Lessor) against Order No. LD95-131 of the Director of Residential
Property dated May 29, 1995.
Order
WHEREAS
Benjamin Graham filed an appeal against
a decision of the Director of Residential Rental Property dated May 29, 1995;
AND WHEREAS
The Island Regulatory and Appeals Commission heard
the appeal in Charlottetown on June 22, 1995;
NOW THEREFORE, for the reasons given in the annexed Reasons for Order;
IT IS ORDERED THAT
1. The appeal is dismissed;
2. The Order of the Director is confirmed; and
3. The security deposit in the amount of $215.50 is to be paid to the Lessee on, or
before, July 28, 1995.
DATED at Charlottetown, Prince Edward Island, this 14th day of July, 1995.
BY THE COMMISSION:
Linda Webber, Chair
James Nicholson, Commissioner
Clayton Bulpitt, 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.