Order LR96-08 - A-010-96 - Rental Appeal - Tommy Ko v. L. Marie Hunter (Jul 19, 1996)

Docket A-010-96
Order LR08-96

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Tommy Ko (the Lessor) against Order No. LD96-086 of the Director of Residential Rental Property dated May 13, 1996.

BEFORE THE COMMISSION

on Friday, the 19th day of July, 1996.

John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Clayton Bulpitt, Commissioner

Order

Participants

1. Appellant:

Tommy Ko (the Lessor)

2. Respondent:

L. Marie Hunter (the Lessee)

Reasons for Order

1. Background

On December 1, 1994, Marie Hunter (the Lessee) occupied the residential premises located at 41 Stockdale Drive, Charlottetown, Prince Edward Island.

According to the evidence before the Commission, the Lessee paid a security deposit in the amount of $425.00 to the Lessor in two installments. One installment was paid in the amount of $100.00 on November 4, 1994 and the other in the amount of $325.00 on November 9, 1994.

On February 29, 1996, the Lessee delivered up possession of the residential premises.

On March 20, 1996, the Lessee made Application For Enforcement of Statutory Or Other Conditions Of Rental Agreement to the Director of Residential Rental Property for a finding that the Lessor owes her the security deposit and to order that the amount owing be paid to the Lessee.

On March 21, 1996, the Residential Rental Property Officer, authorized by the Director to deal with the case, forwarded a letter to the Lessor regarding the application made by the Lessee. The letter contained a request specifically asking him to give information as to why the security deposit was not delivered to the Lessee in accordance with Sections 10(4) and (5) of the Act.

10(4) Subject to subsection (5), the security deposit, together with the interest set out in subsection (3) shall be returned to the lessee within ten days of the date on which the lessee delivers up possession of the residential premises.

10(5) The lessor may retain all or part of a security deposit and interest thereon where he believes the lessee is liable to the lessor for damage to the residential premises caused by a breach of statutory condition 4, or for outstanding rent, provided that the lessor, within ten days of the date on which the lessee delivers up possession of the residential premises, serves the lessee with a notice of intention to retain security deposit in the form prescribed by regulation.

On March 11, 1996, the Lessor faxed a Notice of Intention To Retain Security Deposit (Form #8) to the Director of Residential Rental Property but did not serve notice on the Lessee until April 1, 1996 which was 31 clear days from the time the Lessee delivered up possession of the premises until the time she was served Form #8. The Commission finds that the time period is clearly in excess of the 10 day time period permitted under Section 10(5).

Although the Lessor demonstrated that he might have some legitimate claim against the security deposit, any lessor wanting to retain some or all of a security deposit must make such a claim within the time period and in the manner required by the Act. Proper notice must also be served by the lessor to ensure the lessee can exercise their rights under Section 10(7).

10(7) A lessee served with a notice under subsection (5) may, within fifteen days of the date of service, apply to the Director in the form prescribed by regulation for a determination on the disposition of the security deposit, in which case he shall serve a copy of the application on the lessor.

If the Lessee is not properly served then they would have no way of determining whether or not they should make an application to the Director for a decision on the disposition of the security deposit.

According to the evidence, the Lessor failed to meet the requirements for retaining the security deposit and therefore the Commission finds that he cannot make claims pursuant to the Act with respect to the condition the residential premises was left in by the Lessee.

In regard to two outstanding issues raised by the Lessor and the Lessee during the hearing, (a) the oil bill in the amount of $183.87 for oil received at the residential premises after the Lessee vacated the premises; and (b) the burn mark in the hardwood floor that the Lessee admitted to being responsible for, the Commission finds the following: Given the fact that at the hearing both parties wanted to bring closure to this matter and that the Lessee was willing to pay for the outstanding oil bill and contribute $50.00 to the damage to the hardwood floor caused by the burn, the Commission believes it appropriate to vary the amount owing to the Lessee by the Lessor.

2. Decision

Therefore, the Commission agrees with the finding of the Rental Property Officer and affirms Order LD96-086 with exception to a variation in the amount to be paid and the payment schedule.

Accordingly:

1. The appeal is dismissed;

2. The Order of the Rental Property Officer is affirmed;

3. In an effort to reconcile this matter and at the agreement of the Lessee and the Lessor during the hearing, the amount of $219.63 [$453.50 minus ($183.87 +$50.00)] shall be paid to the Lessee by the Lessor on or before July 31, 1996.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Tommy Ko (the Lessor) against Order No. LD96-086 of the Director of Residential Rental Property dated May 13, 1996.

Order

WHEREAS Tommy Ko filed an appeal against a decision of the Director of Residential Rental Property dated May 13, 1996;

AND WHEREAS the Commission heard the appeal in Charlottetown on June 20, 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 Rental Property Officer is affirmed;

3. In an effort to reconcile this matter and at the agreement of the Lessee and the Lessor during the hearing, the amount of $219.63 [$453.50 minus ($183.87+$50.00)] shall be paid to the Lessee by the Lessor on or before July 31, 1996.

DATED at Charlottetown, Prince Edward Island, this 19th day of July, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Anne McPhee, Commissioner

Clayton Bulpitt, 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.