Order LR96-10 - A-013-96 - Rental Appeal - Paulette & Joseph Halupa v. Grant Moase (Sep 4, 1996)

Docket A-013-96
Order LR96-10

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Paulette Halupa (the Lessee) against Order No. LD96-149 of the Director of Residential Rental Property dated August 8, 1996.

BEFORE THE COMMISSION

on Wednesday, the 4th day of September, 1996.

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

Order

Participants

1. Appellant:

Paulette Halupa (Lessee)
Joseph Halupa (Witness)

2. Respondent:

Grant Moase (Lessor)

Reasons for Order

1. Background

On April 1, 1995 Paulette Halupa (the Lessee) occupied the residential premises located at 52A Tupper Drive, Summerside, Prince Edward Island.

According to the evidence before the Commission, the Lessee received, on June 28, 1996, a Notice of Termination By Lessor of Rental Agreement to vacate the premises on or before July 31, 1996. On July 30, 1996 the Lessor filed with the Director of Residential Rental Property a copy of the notice. The reasons stated on the notice for terminating the rental agreement were as follows:

An act or omission on your part or on the part of a person permitted in or on the residential premises/property by you has seriously impaired the safety or lawful right or interest of me or other lessees in the residential property (s.14(1)(e) of the Act.

The Lessor's specific reasons were:

Breaking into and habitating (sic) an area of the property not rented to you (the Lessee), threats made June 7, 1996 on myself at 236 Water St. in front of an adult customer.

On that same day the Lessor filed with the Director an Application For Enforcement of Statutory Or Other Conditions Of Rental Agreement and seeking the following remedy:

an order that possession of the residential premises be surrendered to the lessor and directing the sheriff to put the lessor in possession.

On August 7, 1996, the Residential Rental Property Officer, authorized by the Director to deal with the case, held a hearing which was attended by both the Lessor and the Lessee.

On August 8, 1996, the Residential Rental Property Officer issued Order LD96-149 ordering that:

Possession of the residential premises be surrendered to the lessor and the sheriff is directed to put the lessor in possession on August 8, 1996.

On August 13, 1996 the Lessee filed with the Island Regulatory and Appeals Commission, pursuant to Section 25 of the Act and the Commission heard the appeal on August 22, 1996.

The reasons for the appeal as contained in the Notice of Appeal filed by the Lessee are as follows:

The residential rental property officer made an error of law in stating that he could not hear the evidence on the alleged reason for eviction because the R..O.R..P. Act (Rental of Residential Property Act) insist (sic) that a lessee must apply to set aside the notice within 10 days of being served. The Lessor did not have just cause to evict me.

2. Discussion and Findings

The Lessee submitted to the Commission that the real reason the Lessor is terminating the agreement is that she instructed the Department of Health and Social Services to not pay the rent for the premises directly to the Lessor. The reason she gave those instructions was that she wanted the property inspected by an Environmental Health Officer. The inspections were conducted and a number of safety/health issues required correction. She also submitted that the reason given by the Lessor that he was threatened by Mr. Joseph Halupa was untrue. Even after the alleged incident the Lessor continued to visit the property. She argued that he did not have enough reason to terminate the rental agreement.

The Lessee informed the Commission that she did not make application to the Director of Residential Rental Property to set aside the notice of termination in accordance with s.16 of the Act. The reason she did not file was that at the time she received the notice she intended to move and put the notice in a drawer and forgot about it. When she referred to it again, the 10 day period for filing a notice to set the notice of termination aside had expired.

The Lessor submitted that the Lessee permitted some of her children to inhabit space in the attic of the residence which was an area that was not included under the rental agreement. In addition, the space was not an appropriate living area, lacking in proper exits and was therefore an unsafe area for human habitation. The Lessor was concerned over continuing the lessor and lessee relationship after a verbal altercation with Joseph Halupa and decided it was necessary to terminate the rental agreement.

The Lessor requested that the Commission remedy the situation by ordering the following:

1. in accordance with Section 34 of the Act, Paulette Halupa pay a fine in the amount of $2000.00;

2. the Province of Prince Edward Island to pay to the Lessor $1000.00 per day for each and every day the Sheriff fails to not deliver up possession of the rental premises;

3. the Lessee pay for the cost of repairing any damages to the rental property that occur after the time in which the Lessors were to vacate, July 31, 1996.

4. the payment of rent owing for the time period in which the Lessee continued to occupy the premises beyond July 31,1996.

The Commission considered the remedies requested by the Lessor and finds the following:

Section 34 states:

Any person who violates or fails to comply with any order, direction or other requirement of a Commission or the Director or contravenes any provision of this Act, or any lessor who takes action against a lessee because of resort by the lessee to any governmental authority in respect of the residential premises or because the lessee attempts to enforce or secure his rights under this Act, is guilty of an offence punishable on summary conviction and is liable to a fine of not more than two thousand dollars.

It is the Commission's understanding that it does not have the jurisdiction to summarily convict any person who violates or fails to comply with the Act. The court must determine if the person is guilty of an offence punishable on summary conviction and is liable to a fine… Therefore, the Commission cannot fine the Lessee in accordance with Section 34 as requested by the Lessor.

In regards to the second request of the Lessor, to the Commission's knowledge there is no statutory authority that would enable it to assess a penalty for the failure of the Sheriff to carry out an order of the Court. The Lessor did not supply the Commission with such authorities and therefore cannot make such an order.

The matter under appeal does not relate to the issue of damages to the premises but the matter related to a notice of termination filed by the Lessor, to terminate the rental agreement between Mr. Moase and Mrs. Halupa. The Act does make provision, in a case of compensation for damages caused by a lessee to the rental premises, for the Lessor to make an application in writing to remedy such a violation. Although, the lessor did indicate there was damage caused by water there was some indication that this problem existed prior to August 1, 1996. If the Lessor finds damage caused by the Lessee to the premises, during the month of August, then he should make an application including a full accounting of those damages, with costs, to the Director of Residential Rental Property for a determination.

In consideration of the fourth request, the Commission finds that the Lessee continues, at least as of the hearing date, to occupy the subject rental premises, and therefore owes to the Lessor the rent for the time period in which she continues to occupy the premises. That is, she owes rent for the month of August. Since according to the Lessee and a document indicating that rent for the month of August would be paid to the Lessor by the Department of Health and Social Services, the issue of non-payment of rent for August will not require the Commission to order payment of rent. The Commission finds the Lessee does owe rent for the time period in which she continues to occupy the premises and must pay to the Lessor the rent whether or not she pays it directly or the Department of Health and Social Services pays.

In regard to the appeal matter, the Commission heard evidence on the reasons why the Lessor terminated the rental agreement and the Lessee's submissions as to why the rental agreement should not be terminated. The Commission finds that the legislation is clear; it carefully sets out a procedure for the lessor to terminate a rental agreement and gives an opportunity to the lessee, under s. 16 to have that termination set aside. The evidence before the Commission and confirmed during the hearing by the Lessee is that she did not avail herself of the provisions of that section and lost her right to seek a remedy. The legislation gives a lessee 10 days to request the Director to set the termination aside, according to the evidence before the Commission, no such action was taken by the Lessee in this case. The Lessee submitted that she did not have knowledge of such a provision and therefore did not know what action she had to take against the notice of termination. In the view of the Commission, putting the copy of the notice in a drawer because she was going to vacate the premises anyway is not reason enough for her not to file an application to set the notice aside and for the Commission to allow the appeal.

Clearly, the legislation required the Lessee to file an application with the Director to set the termination aside and the Commission does not have the authority to go back and correct the defect. As stated earlier, the Act is very clear on what the Lessor must do in order to terminate a rental agreement which, in this case, the facts show that the Lessor complied with the requirements of the Act. On the other hand, the Act is very clear on what the lessee must do to try to have the termination set aside and the facts show that the Lessee failed to follow the procedure. No matter the circumstances they find themselves in, the onus is on both the lessor and the lessee to avail themselves of their rights given to each under the Act. It is their responsibility to determine what those rights are and how they must exercise those rights. Therefore, as a result of the Lessee's failure to make application to set aside the Notice of Termination, the Commission must deny the appeal.

2. Decision

Therefore, the Commission agrees with the finding of the Rental Property Officer and affirms Order LD96-149.

Accordingly:

1) The appeal is dismissed.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Paulette Halupa (the Lessee) against Order No. LD96-149 of the Director of Residential Rental Property dated August 8, 1996.

Order

WHEREAS Paulette Halupa filed an appeal against a decision of the Director of Residential Rental Property dated August 13, 1996;

AND WHEREAS the Commission heard the appeal in Charlottetown on August 22, 1996;

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

IT IS ORDERED THAT

1. The appeal is dismissed.

DATED at Charlottetown, Prince Edward Island, this 4th day of September, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Debbie MacLellan, Commissioner

Carl Riggs, Commissioner

NOTICE

Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:

26.(2) A lessor or lessee may, within fifteen days of the decision of the Commission, appeal to the court on a question of law only.

(3) The rules of court governing appeals apply to an appeal under subsection (2).

(4) Where the Commission has confirmed, reversed or varied an order of the Director and no appeal has been taken within the time specified in subsection (2), the lessor or lessee may file the order in the court.

(5) Where an order is filed pursuant to subsection (4), it may be enforced as if it were an order of the court.