Docket A-016-96
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Hadel Al-Mousad (the Lessee) against Order No. LD96-191 of the Director of Residential Property dated October 9, 1996.
Order LR96-13BEFORE THE COMMISSION
on Monday, the 18th day of November, 1996.
John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
James Nicholson, Commissioner
Order
Participants
1. Appellant:Hadel Al-Mousad (the Lessee)
2. Respondent:
Property Care and Rental
Agent: Ron Switzer (the Lessor)
Reasons for Order
1. Background
On May 1, 1995 the Lessee occupied the residential rental premises located at 13 Brown Court, Apartment #102 and vacated that premises on June 30, 1996.
The agreed upon rent for the premises was $550.00 and a security deposit in the amount of $300.00 was paid by the Lessee.
On July 9, 1996, after inspection of the premises, Ron Switzer, Agent for the Lessor, forwarded by mail a Notice of Intention to Retain Security Deposit (Form 8). The reasons for retaining the security deposit as stated on the notice were:
"Steam clean carpets $50; clean appliances and overall unit - bathroom, etc. $75; replace kitchen countertop due to burn marks, est. $270.00; Rent owing for June, 1996 $250.00; Apt. infested with insects, fumigation estimate not available at this time."
On August 30, 1996 the Director of Residential Rental Property received an Application For Enforcement of Statutory or Other Conditions of Rental Agreement (Form 2) filed by Mr. Switzer pursuant to section 8 of the Rental of Residential Property Act and section 4 of the Regulations. The application stated that:
"Tenant owes 250.00 for June ‘96 rent"
And he was seeking the following remedy:
(e) a finding that rent is owed;
(g) an order that an amount found to be owed be paid;
On September 3, 1996 Boyde White, the Director of Residential Rental Property forwarded a letter to Hadel Al-Mousad concerning the application for outstanding rent asking her to respond to the claim.
Shayne Hogan, the Rental Property Officer, authorized by the Director, held a hearing in regard to the application on September 30, 1996. On October 9, 1996 he issued Order LD96-191 ordering that:
1. Rent in the amount of $250.00 is found owing by the lessee.
2. The payment or payment arrangements suitable to the lessor to be made on or before November 9, 1996.
On October 11, 1996 the Lessee filed with the Commission a Notice of Appeal, pursuant to section 25 of the Act and section 23 of the Regulations naming Property Care and Rental and Agent Ron Switzer as a party to the appeal. Her reasons for the appeal were stated in the notice as follows:
"I did clean the apartment very well and I did not damage any of the appliances or any other things at the Apt. #102 (at 13 Brown Court) I did leave because I have no ability to afford the rent. So I wrote the note for leaving befor 31 days. [sic]
The Commission heard the appeal on November 7, 1996 in the Commission hearing room.
2. Decision
The Appellant informed the Commission that she believed she had fulfilled her obligations to the Lessor and that there was no reason for the Lessor to retain her security deposit.
The Appellant submitted to the Commission that she had a good relationship with the Lessor, especially Calvin Mol who represented the Lessor during her tenancy at 13 Brown Court. She understood that once Mr. Mol collected $300.00 in rent from her she could retain $250.00 of the rent instead of having her security deposit refunded. She believed that Mr. Mol was satisfied with that arrangement and she did not have to concern herself about it again.
Problems seemed to arise when the personnel representing the Lessor changed and the new personnel inspected the residential premises after the Lessee vacated. Mr. Switzer determined that the unit was in such a condition that the Lessee should return to clean it. Although she did not like the manner in which he talked to her she agreed.
In addition to the unit needing to be cleaned, Mr. Switzer also determined that the unit was left in a poor condition. As a result the security deposit should be retained and not returned to the Lessee.
Consequently, on July 9, 1996 Mr. Switzer forwarded to the Lessee, by mail, a Form 8, Notice of Intention to Retain Security Deposit. The Lessee indicated to the Commission that she did not receive the notice until sometime in early August. She also admitted that she did not completely read the notice and did not take any action to determine what she could do about the notice.
The Commission believes that the note at the bottom of Form 8 provides clear instructions to the lessee as to what to do if the lessee does not agree with the reasons for retaining the security deposit.
"Note:
By operation of section 10 of the Act, if the lessee does not agree with the reasons given or the amount returned, he/she may apply to the Director of Residential Rental Property for a determination of the matter. The application must be made on a prescribed form available from the Director of Residential Property, P.O. Box 577, 134 Kent Street, Suite 501, Charlottetown, P.E.I., C1A 7L1, and be filed within 15 days of receiving this notice." (emphasis added)
The Lessee's arguments heard by the Commission clearly indicate that she did not agree with the reasons for the notice to retain her security deposit. However the evidence is clear that she chose to take no action against the notice.
There were a number of reasons given by the Lessee at the hearing for not taking action against the notice: that the notice was late in being received; she had been dealing with Calvin Mol during her rent period and had nothing to do with Mr. Switzer; also she believed that she and Mr. Mol had reached an agreement that she would pay $300.00 in rent and he would keep the security deposit in the amount of $300.00, which would cover the rent for the month, therefore she did not expect the security deposit to be returned because everything was settled. Also, the reasons for keeping the security deposit contained in the notice did not have any merit. Therefore, she took no action and did not apply to the Director of Residential Rental Property to have the notice set aside as explained in the Notice.
Although the Commission does sympathize with the situation the Lessee finds herself in, we cannot allow her appeal for the follow reasons:
Section 10 is clear as to the steps that a lessor must take to retain a security deposit and subsection 10(7) states that the lessee has the right to try and set the notice aside if they do not agree. In accordance with subsection 10(7) and the note on the bottom of Form 8 the Lessee had 15 days to apply to the Director for a determination of the matter. However the Lessee failed to do so. Although, the Lessee might have believed that she had settled the matter, she had the opportunity to file her objections with the Director including the reasons that she thought she reached an agreement with Mr. Mol. This would have given the Director the opportunity to make a determination of the matter and decide whether or not the Lessor should retain the security deposit or a part of it. By not filing the Lessee failed, in the view of the Commission, to exercise her right to question the security deposit. Therefore her argument, such as the carpet did not need to be steam cleaned and the marks on the countertop were not burn marks but rust marks which could be cleaned, cannot now be considered.
Subsection 10(8) gives the Lessor the right to retain the security deposit if no application is made pursuant to subsection 10(7).
Subsection 10(8) states:
"Where no application is made by the lessee pursuant to subsection (7), the lessor may retain the security deposit or such portion thereof as claimed in his notice."
The Act does not give the Commission the authority to overlook the fact that she did not file an application to set aside the notice to retain the security deposit and interfere with the Lessor's right to retain the security deposit. The law prevents the Commission from issuing such an order.
The Commission finds that the Lessee did not make application for the determination of the security deposit in the form prescribed by regulation, within the regulated time. Therefore she has lost her right to argue the validity of the reasons for retaining the security deposit as set out by the Lessor.
Therefore the Lessor's claim, filed on August 30, 1996 with the Director, that the Lessee owes $250.00 rent for the month of June, 1996 must be upheld by the Commission. The Commission confirms Order LD96-191 that rent is owed by the Lessee to the Lessor in the amount of $250.00 and the Commission varies the date when it must be paid.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Hadel Al-Mousad (the Lessee) against Order No. LD96-191 of the Director of Residential Property dated October 9, 1996.Order
WHEREAS
Hadel Al-Mousad filed an appeal against a decision of the Director of Residential Rental Property dated October 9,1996;AND WHEREAS
the Commission heard the appeal in Charlottetown on November 7, 1996;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 affirmed that rent is owed by the Lessee to the Lessor in the amount of $250.00; and
3. The schedule of payment as ordered by the Director is varied. The payment or payment arrangement suitable to the Lessor to be made on or before December 13, 1996.
DATED
at Charlottetown, Prince Edward Island, this 18th day of November, 1996.BY THE COMMISSION:
John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
James Nicholson, 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.