Order LR95-09 - A-012-95 - Rental Appeal - Trudi Barry v. Cardon Enterprises Inc., Agent

Docket A-012-95
Order LR95-9

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Trudi Barry (the Lessee) against Order No. LD95-039A of the Director of Residential Rental Property dated June 14, 1995.

Thursday, August 31, 1995

John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
Carl Riggs, Commissioner

Order

Participants

1. Appellant

Trudi Barry (the Lessee)

2. Respondent

Cardon Enterprises Inc.
Agent: Carman MacArthur (the Lessor)

Reasons for Order

1 Discussion and Findings

The Commission has considered the evidence submitted by the Lessee and the Lessor and has reviewed the relevant materials provided under a sworn affidavit by the Residential Rental Property Officer.

On October 3, 1994, the Lessee and the Lessor entered into a rental agreement to rent a new residential rental unit located at Apartment #3, 73 St. Peters Road, Parkdale. As agreed the Lessee paid the Lessor rent for the month of October and a security deposit in the amounts of $500.00 and $250.00 respectively.

According to the Lessee the unit was not ready to be occupied. Section 6.1 of the Act requires the Lessor to ensure the unit is in a good state of repair and fit for habitation.

6.1 Condition of Premises

The Lessor shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any enactment respecting standards of health, safety or housing notwithstanding any state of non-repair that may have existed at the time the agreement was entered into.

At the time of the agreement a number of things had to be done to the unit before the Lessee could occupy the unit. The Lessor agreed to have the unit ready by the time she was ready to occupy it. According to the Lessor the items to be taken care of prior to occupancy were: complete the flooring and carpeting and install the stove and refrigerator. These tasks were completed on October 8, 1995 when the Lessee received a key and visited the apartment for the first time since October 3.

In the opinion of the Lessor, the unit met the requirements of Section 6.1 and was ready for occupancy.

According to the evidence, the Lessee signed a service contract with Maritime Electric Company Limited (MECL) for it to supply electricity to the residential unit located at 73 St. Peters Road. Although a copy of the contract is dated October 1994, the Lessee confirmed under sworn testimony that the exact date was October 5, 1994. The Commission has no reason not to accept this date. According to the evidence of the Lessee, subsequent to signing the contract, MECL informed her that since the unit was newly constructed and never serviced before that a pass slip had not been issued to it by the Prince Edward Island Electrical Inspection Department to ensure the unit was ready to be serviced. Therefore, the Lessee was denied electrical service to the unit.

After viewing the rental unit on October 8, the Lessee met with the Lessor and informed him that the unit was not suitable and she would not be taking the unit after all. At that time she did not inform him that the unit could not be serviced with electricity.

On October 12, the Lessee made an inquiry to MECL as to whether or not power could be supplied to the unit and she was informed that it could not.

The Lessor returned the Lessee's security deposit but believed that the unit was ready for occupancy and met the requirements of Section 6.1 and that he had done everything for which he as the lessor was responsible. It was his position that the Lessee owed rent for the entire month of October. Therefore, no rent was returned to the Lessee.

The Lessor argued that the Lessee did not inform him that the unit could not be serviced with power until October 12 and despite that, the Lessee is responsible for obtaining electrical service and not the Lessor. This fact, he indicated is proven out by the new lessee, Brenda Mac Donald obtaining electrical service when she applied to MECL for service on October 28, 1994 when final inspection of the unit was received and meter authorized for the new lessee. The Lessor believed that Trudi Barry could have done the same thing and it was her responsibility to do so.

The Lessee argued that because the unit could not be serviced with electricity that the unit was not ready for occupancy. Therefore, she filed with the Director of Residential Rental Property an Application For Enforcement of Statutory Or Other Conditions Of Rental Agreement requesting: the termination of the rental agreement, rent owing and the amount owing be paid.

Mr. Chris Jones, Director of Residential Rental Property was forwarded a letter from E.J. Power, P.Eng., Chief Electrical & Elevator Inspector, Department of Provincial Affairs and Attorney General confirming that final inspection and the meter authorization for the rental unit was done on October 28,1994.

The Commission understands that the task of getting electrical power to a newly constructed unit is a two step process. Simply, and without complicating the description, the first step is for the electrical contractor to complete the electrical work and submit an application for inspection, and then the Electrical Inspection Division of the Department of Provincial Affairs inspects the unit and issues a certificate of inspection to MECL. The second step is for the lessee of the new unit to apply for service to MECL and if the certificate has been issued and there are no other reasons why service would be refused then electrical service would be provided.

In the Commission's opinion it is unreasonable to think that the lessee of a new apartment unit would be responsible for anything more than to apply for service to the unit just as one would apply if it were not a new unit. It is reasonable to think that the lessor of a newly constructed unit is responsible for ensuring that the rental unit is capable of being serviced by MECL and clearly the record shows that without the certificate MECL could not service the unit when the Lessee applied.

Even though Brenda MacDonald obtained electricity, it appears that MECL went to a greater extent to serve in her case than in the appellant's case. It is clear from the record that sometimes MECL goes out of its way and in others it does not, if it is too busy. A lessee should not be left to the good will of MECL to secure service. The Commission believes that, in part, this is reason why it is unreasonable to think that a lessee should be responsible for more than making a simple request for a service as any customer whether or not it is for a new rental unit or an old unit.

2 Decision

In the result, the Commission finds that in this case the Lessor failed to ensure that all the steps had been completed so that the Lessee could obtain electrical service from MECL. Electrical service is an essential service for any residential unit and because in this case it was not available to the Lessee, after making a proper application to MECL, then the residential unit failed to meet the requirements of Section 6.1. The Lessor failed to ensure the unit was inspected and the certificate issued to MECL thereby preventing the Lessee from obtaining electrical service making the unit unfit for habitation.

The Commission allows the appeal.

Accordingly,

1. The Order LD95-039A is reversed;

2. The rental agreement is terminated as of October 1,1994;

3. Rent in the amount of $500.00 is to be returned to the Lessee.

4. The Lessor shall pay to the Lessee the sum of $500.00 on or before September 14, 1995.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Trudi Barry (the Lessee) against Order No. LD95-039A of the Director of Residential Rental Property dated June 14, 1995.

Order

WHEREAS Trudi Barry filed an appeal against a decision of the Director of Residential Rental Property dated June 14, 1995;

AND WHEREAS The Island Regulatory and Appeals Commission heard the appeal in Charlottetown on August 3, 1995;

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

IT IS ORDERED THAT

1. The Order LD95-039A is reversed;

2. The rental agreement is terminated as of October 1, 1994;

3. Rent in the amount of $500.00 is to be returned to the Lessee.

4. The Lessor shall pay to the Lessee the sum of $500.00 on or before September 14, 1995.

DATED at Charlottetown, Prince Edward Island, this 31st day of August, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
Carl Riggs, 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.