Docket A-010-97
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gordon Gallant (the Lessee) against Order No. LD97-126 of the Director of Residential Rental Property dated July 18, 1997.
Order LR97-12BEFORE THE COMMISSION
on Tuesday, the 28th day of October, 1997.
Ginger Breedon, Vice-Chair
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner
Order
Participants1. Appellant:
Gordon Gallant (the Lessee)
2. Respondent:
Coles Construction Co. Ltd.
Agents: Allison and Barbara Coles (the Lessor)
Reasons for Order
1. Background
In Order LD97-126, (Exhibit A-14), dated July 18, 1997, the Director of Residential Rental Property ordered that:
1. The lessee pay to the lessor the sum of $450.00.2. The payment or payment arrangements suitable to the lessor's agents to be made on or before August 18, 1997.
By way of Notice of Appeal to this Order (Exhibit A-15) dated July 22, 1997, the Lessee, Mr. Gallant, indicated his reason for appealing as follows:
1. I disagree with the $450 for May 1996 rent which you determined in your order LD97-126. (I will explain at the hearing).2. Personal belongings which have not been returned to me because the locks were changed on the house before month's end. I want these items returned – 48" box spring & mattress, 42" ceiling fan, metal tool box, sheers and drapes from living room.
3. It is not my responsibility to provide the specific date the locks were changed on the door, that is the responsibility of landlord.
4. Mr. Coles did not cooperate & did not attend the hearing. He did call IRAC offices & say he would not be present at the hearing, however Mr. White did not advise me of this call.
5. At the first hearing with Mr. White, Mrs. Coles indicated she showed me the property at 189 Mason Road & was the one who made the rental agreement. This is false, it was Mr.Coles, however this was not mentioned in the Order.
6. While I was still legally in possession of the house, Mr. Coles without permission from me, allowed people in the premises; i.e., contractors & buyers.
The hearing for this appeal was reconvened on September 16, 1997 from earlier cancelled dates.
The Commission reviewed the documentary evidence in the file provided by the Director of Residential Rental Property and confirmed with the parties the nineteen documents which were entered as exhibits. The Lessee and Lessor subsequently provided additional materials which were reviewed with the parties and, in there being no objections, were entered as exhibits.
The Lessee provided a copy of a notice from a collection agency (Exhibit A-20), a copy of an invoice from Hansen Electric (Exhibit A-21) and a copy of a receipt from Hansen Electric (Exhibit A-22). The Lessor provided a package of a number of receipts for rent payments (Exhibit A-23).
After the presentation of the Exhibits and some opening comments from the Lessee and Allison Coles, Agent for the Lessor, Mr. Coles requested an adjournment. His request was based on his wish to have Barbara Coles attend the hearing, as she was more directly involved in the management of the rental property in question and could better speak to and provide any backup materials for the matters being considered. Mr. Coles indicated that he had understood the appeal hearing would only involve him answering a few questions and not a full review of the whole matter.
Mr. Gallant, the Lessee, also indicated that he would like to have an opportunity to review some of the exhibits tabled from the Director of Residential Rental Property.
The Commission agreed with the requests from the two parties and adjourned the hearing.
The hearing reconvened on October 14, 1997. Mr. Gallant appeared as the Appellant (the Lessee) and Allison and Barbara Coles, Agents, appeared for the Respondent, Coles Construction Co. Ltd. (the Lessor).
2. Decision
The Commission confirms the decision of the Director of Residential Rental Property.
The general background details of the matter relating to the purported situation between the Lessee and Lessor have been outlined in Order LD97-126 and will not be repeated here.
The Lessee opened his testimony by indicating that the Lessor had submitted his name to a collection agency for collection of the $1,100 that the Lessor claims the Lessee owes in rent. The Lessee tabled a copy of a collection notice (Exhibit A-20) as evidence of this action. The Lessee further stated that he felt this action was unfair since the process with the Island Regulatory and Appeals Commission had not yet been completed.
The Commissioners informed the Lessee that this matter was outside the Commission's jurisdiction and that he would have to pursue his own initiatives to address this concern.
The Lessee further testified he had viewed the house at 189 Mason Road with the Lessor's agent, Allison Coles, and he and Mr. Coles had discussed and agreed on an option to purchase the unit at a price of $68,000, as well as a rent for the unit. The Lessee indicated it was his understanding the Lessor was to provide a written agreement on the option to purchase the unit and that he had asked for this several times but never received any such agreement.
The Lessee also testified he and Mr. Coles agreed that the rent for the unit would be $50 less per month than the rent paid by the previous tenant. The $50 reduction was to be in lieu of the Lessor providing a fridge and stove for the unit. The Lessee pointed out that the previous tenant, Cheryl Robbins (Exhibit A-7), had paid $600 per month for the unit with a fridge and stove provided by the Lessor. As such, the Lessee believed his rent was $550 per month, with him providing his own fridge and stove.
The Lessor's agent, Mr. Coles, testified he had shown the Lessee around the outside of the unit at 189 Mason Road. He also said he may have spoken to the Lessee about the possibility of the Lessee purchasing the unit at some point but was clear that he had not formally agreed to any specific arrangement. Mr. Coles indicated he is in the real estate business and is always interested in possible sales.
Mr. Coles further testified the rent for the unit at 189 Mason Road was $600 per month, and he never agreed to rent the unit for anything less than this amount.
Ms. Barbara Coles, Lessor's agent, also testified the rent for the unit was $600 per month without fridge and stove. She stated Cheryl Robbins' rent of $600 per month was based on no fridge and stove being provided by the Lessor. She noted, however, that Ms. Robbins had asked if the Lessor might provide a fridge and stove until she had an opportunity to acquire her own. Ms. Coles said the Lessor had a number of old appliances and agreed to provide a fridge and stove as an interim arrangement. In the end, Ms. Robbins' tenancy was fairly brief and she left before placing her own fridge and stove in the unit at 189 Mason Road.
Ms. Coles also presented copies of some receipts for rent payments by the Lessee for the unit (Exhibit A-23). She pointed out these receipts confirm that while the Lessee was making payments of $550 per month, the Lessor's agent was recording on the receipts ongoing monthly arrears of $50. Ms. Coles testified she based her monthly rent collections on a rent of $600 per month and she had advised the Lessee on several occasions that the rent was $600 per month. She also pointed out the Lessee had made a payment of $200 (Exhibit A-7) in November 1995 against arrears.
The Lessee confirmed Ms. Coles had advised him the rent was $600 per month but that he continued to pay $550 because this was the agreement he had with Mr. Coles.
The Commission is faced with conflicting testimony regarding the rent being charged on the unit at 189 Mason Road. The Lessee claims the rent was $550 per month. The Lessor's agents claim the rent was $600 per month and that the Lessee owes the Lessor $600 in arrears because of this difference. In considering the testimony and the Exhibits, the Commission is able to confirm that the previous tenant, Cheryl Robbins, had been paying $600 per month and that, at least during her brief tenancy, she had use of a fridge and stove provided by the Lessor. The Commission believes it is reasonable to conclude that the Lessee would expect to pay less in rent if he was to provide his own fridge and stove.
The Commission therefore agrees with the reasoning and decision of the Director of Residential Rental Property not to allow the Lessor's claim for $600 in rental arrears arising from the difference between the disputed monthly rent charges.
In the initial application to the Director, the Lessor also claimed $500 in rent owing for the month of May 1996. This figure represented the Lessor's stated rent charge of $600 for the month of May less a $100 payment made by the Lessee for that month.
In testifying regarding this claim, the Lessee stated he decided to move out of the unit because the Lessor would not provide a written agreement on the purported verbal agreement for a purchase of the unit. The Lessee subsequently provided appropriate notification of termination of tenancy effective the end of May 1996. The Lessee also included on the notification that he would be paying the May rent at the end of May (Exhibit A-2). At the end of May, the Lessee only paid $100 on this rent owing.
The Lessee outlined two main reasons for paying less than the full rent for May. The first reason was that the Lessor's agents had allowed contractors and/or prospective lessees or purchasers into the unit during May without first obtaining the Lessee's consent, or providing the Lessee with written notice at least twenty-four hours before entry (statutory rental agreement condition 6). The second reason was the Lessor had changed the locks on the unit without the Lessee's consent (statutory rental agreement condition 7) and, thereby, had assumed possession of the unit at some point during May. The Lessee also indicated he had physically move out of the unit on May 15, 1996 and had contacted Maritime Electric about shutting off the power. The Lessee further noted he believed the Lessor owed him money for work he had done on the unit, and supported this position by reference to an invoice from Hansen Electric (Exhibit A-21) and a receipt from the same firm (Exhibit A-22).
The Lessor's agents testified that they had tried to contact the Lessee to obtain his consent for entry to the unit in May but they could not get hold of him as they did not have his new telephone number. The Lessee pointed out that had they called the old number they would have been referred to his new number. One of the Lessor's agents, Ms. Coles, acknowledged that she did eventually call the Lessee at his new number and his wife advised her the Lessee was not available and he would not speak to her. The Lessee indicated this response was based on advice he received from Rental of Residential Property staff that he might not want to speak with the Lessor or the Lessor's agents once activity commenced with the Rental of Residential Property Office.
The Lessor's agents also testified they had not changed the locks on the unit at 189 Mason Road. The Lessee disputed this and stated he had gone to the unit in late May, and found what he believed to be a new lock on an entry door into the garage. He then left the property.
In response to a question, the Lessee acknowledged there were two or three other entry doors to the unit and he had not tried these. He said he did not do so because he believed he could be seen to be guilty of breaking into the unit if he attempted to enter.
The Commission does not accept the Lessee's position that the Lessor took possession of the unit during May 1996. While the Lessor's entry to the unit without permission and proper notice was a contravention of the Act, the Commission does not believe this type of contravention constitutes the Lessor taking possession of the unit.
With respect to the locks, the Lessor's agents were adamant that they did not change any locks on the unit. The Lessee was equally adamant that the lock on a door he was going to use to gain entry in late May had been changed. He also indicated that he did not check any of the other doors.
The Commission is not able to reach a conclusion on which testimony to accept regarding the lock seen by the Lessee. The Commission does, however, in the absence of any contradictory evidence, accept that the locks on the other entry doors were not changed. Based on this conclusion, the Commission does not believe the fact of whether one lock was changed or not would constitute the Lessor taking possession of the unit prior to the end of May, 1996.
On the matter of the Lessee's contention that the Lessor owes him compensation for work he paid for on the unit, the Commission does not believe it has the jurisdiction to consider such a claim.
The Commission, therefore, concurs with the Director's decision on the rent owing for May 1996 and finds that the Lessee owes the Lessor $450 for the balance of the rent for that month. The $450 balance of rent is arrived at by deducting the $100 already paid against the May 1996 rent from the previously established monthly rent of $550.
The Commission dismisses the appeal.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gordon Gallant (the Lessee) against Order No. LD97-126 of the Director of Residential Rental Property dated July 18, 1997.
Order
WHEREAS Gordon Gallant filed an appeal against a decision of the Director of Residential Rental Property dated July 18, 1997;
AND WHEREAS the Commission commenced the appeal in Charlottetown on August 13, 1997 and with the consent of both parties reconvened the hearing on September 16, 1997 and October 14, 1997;
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 with the payment timing varied as ordered in "3" below;
3. The Lessee shall pay the Lessor an amount of $450, with payment or payment arrangements suitable to the Lessor's agents to be made on or before November 28, 1997.
DATED at Charlottetown, Prince Edward Island, this 28th day of October, 1997.
BY THE COMMISSION:
Ginger Breedon, Vice-ChairClayton Bulpitt, Commissioner
Anne McPhee, Commissioner
NOTICE
Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:
(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.