Docket A-005-97
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Erol Cohen (the Lessor) against Order No. LD97-060 of the Director of Residential Rental Property dated May 2, 1997.
Order LR97-3BEFORE THE COMMISSION
on Thursday, the 26th day of June, 1997.
Linda Webber, Chair
Anne McPhee, Commissioner
Carl Riggs, Commissioner
Order
Participants
1. Appellant:Erol Cohen (the Lessor)
2. Respondent:
Nancy Wood (the Lessee)
Reasons for Order
1. Background
The details of the circumstances surrounding the initial application by Lessee Nancy Wood for enforcement of terms of the rental agreement, specifically related to the condition of the premises located at 17B Kensington Road, Charlottetown, P.E.I., were set out in Order LD97-060 and will not be repeated herein. The Order required the Lessor Erol Cohen to effect a variety of repairs to the unit in question and to pay the Lessee $800.00 in return rent on or before June 2, 1997.
The Lessor filed an appeal of this decision on May 21, 1997. The Lessor's appeal document states as follows:
1. The desicion [sic] is very unfair, because there was nothing wrong whit [sic] the premises, I have a witness that I was never aware of any heat problem, those people are trying to take advantage from the system.
I have her "moving out notice letter" that explains everything very clearly. The tenant moved in May and wait it [sic] till Dec. to move out if there was so many problems that she claims why she didn't move out sooner? She has done alot [sic] of damages when she moved out. The officer from IRAC is aware of it and never consider those damages.
2. Why the desicion [sic] took six month? Why the officer agreed what everything that the tenant offered, she went down to 800.00 dollars from 1750.00 and she got 800 dollars.
3. There should be no award to the tenant because the tenant never paid the rent, social services did. We should let them know what the situation is.
At the hearing of this matter evidence on behalf of the Lessee was given by Nancy Wood and Larry Mitton. Evidence was given by the Lessor Erol Cohen on his own behalf. In addition to this new evidence, the Commission considered the documents available from the hearing before the Director. These documents were reviewed with the parties at the hearing and, since there were no objections, were made exhibits at the hearing.
2. Decision
Overall, the Commission confirms the decision of the Director.
The Lessor's attempts to argue that he was not aware of the condition of the premises is difficult to accept in the face of the detailed findings of the Director after an inspection and after hearing the history of the tenancy. The Lessor did not deal with any specific findings but did attempt to state that all these things could not have been wrong or else the Lessee would not have stayed in the premises. He further argued that it was unfair for a tenant to rent premises for almost eight months and then leave and try to get the money back because of deficiencies in the unit.
The Commission agrees that it would not be reasonable to refund all the rent for such a long period if no real efforts were made by the tenant to have the problems corrected. This could lead to manipulation of the circumstances by a tenant and this would not be within the intent of the Act.
However, in this case the refund is less than two months' rent. Given the extent of the problems with the unit the Commission does not feel this sum is unreasonable.
In addition, the Lessor's position that if he had known of the problems he would have fixed them is not supported by the facts of this case. For example, after the Lessee complained and the premises were inspected the Lessor became aware of the fact that Maritime Electric had cut off the electricity to the unit. The Lessor admitted he knew the electricity was cut off— arguing that this was a mistake resulting from his paying the electricity bill for another unit instead of for the Lessee's unit—but added that he did not bother to have it reconnected after he found out about the mistake because he "knew" that the Lessee wasn't living there anyway. The law requires that the premises for which a Lessee is paying rent be habitable at all times. The Lessee's arguments that she wasn't living there because of the condition of the premises are simply bolstered by this inaction by the Lessor. The Lessor was making no attempts to make the premises habitable so the Lessee could move back in.
The other major problem faced by the Lessee was the excessive heat in the apartment. Again, the Lessor claims not to have been aware of this problem. The evidence from the Lessee is somewhat vague on this point. While she claims to have complained about "everything" to either the Lessor or the woman who works in his store, the Lessee was evasive when asked whether or not she specifically complained to the Lessor about the heat.
However, there is no question that there was a problem with the heat. As a result of the Lessee's complaints to the Director and the Director's efforts in this area it was determined that the wires between two units had been crossed. The Lessor stated that this probably happened when he had a new furnace put in about two years ago. Another former tenant, Ralph Gauthier, told the Director that his apartment (the one with which the wires were crossed) was always cold. He was always turning the thermostat up but never getting heat. At the same time the Lessee was always turning hers down, eventually even having the thermostat disconnected—but the heat kept coming in. Certainly in these circumstances it is most likely that the tenants complained to their landlord. And if the Lessor checks the apartments after a tenant moves out—as he says he does to ensure the thermostats are not left too high—he should have noticed this problem with the two apartments.
The Lessor's complaint about how long it took to have the matter decided by the Director was not a valid ground of appeal. The Lessee did not cause the problem. It is clear from this decision that this particular case was very time-consuming and more complicated than most. At the same time, some delay was caused by the workload in the rentalsman office and recent changes should help eliminate such delays.
As for the Lessor's arguments that the Lessee should not be given back the rent because it was paid by "Social Services", the Lessee was Nancy Wood and therefore Nancy Wood is entitled to the refund. How this will be handled in terms of her financial assistance is between her and the Government. The Lessee brought to the hearing a letter from the Queens Region Health and Community Services, Child and Family Services stating that she had made her Financial Assistance worker aware of her appeal regarding her rent at 17B Kensington Road.
For her part the Lessee took the position at the hearing that she really should be refunded all the rent she paid. However, since the Lessee did not appeal the decision of the Director this claim cannot be considered. We accept the fact that her initial claim for $1,750.00 was amended orally during the hearing before the Director down to $800.00. The Lessee does not disagree that she did lessen her claim in this way. She states, however, that her social worker is now telling her she should claim the maximum possible amount. As stated above, the Lessee did not appeal the decision within the time allowed so this is not an issue before the Commission at this hearing.
For the reasons stated above, the appeal is dismissed.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Erol Cohen (the Lessor) against Order No. LD97-060 of the Director of Residential Rental Property dated May 2, 1997.Order
WHEREAS
Erol Cohen filed an appeal against a decision of the Director of Residential Rental Property dated May 21, 1997;AND WHEREAS
the Commission heard the appeal in Charlottetown on June 12, 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; and
3. The Lessor shall pay the Lessee an amount of $800.00 on or before July 10, 1997.
DATED
at Charlottetown, Prince Edward Island, this 26th day of June, 1997.BY THE COMMISSION:
Linda Webber, Chair
Anne McPhee, 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.