Docket A-011-97
Order LR97-8

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Charles Mills (the Lessor) against Order No. LD97-110 of the Director of Residential Rental Property dated July 4, 1997.

BEFORE THE COMMISSION

on Wednesday, the 27th day of August, 1997.

Linda Webber, Chair
Emmett Kelly, Commissioner

Order

Participants

1. Appellant:

Charles Mills (the Lessor)
John Ward (witness)

2. Respondent:

Janice Gallant Kelly

Reasons for Order

Charles Mills appeared on behalf of the Appellant Lessor and Janice Gallant Kelly appeared on behalf of the Respondent Lessee. John Ward gave evidence on behalf of the Appellant.

There were three issues raised by the Appellant:

1. Was there rent owing on a fixed term lease?

The Appellant continued to argue that there was an oral agreement between the parties for a one year fixed term lease. He stated that he never rents for anything less, told this to the Lessee, and would have had the Lessee sign a written agreement but happened to be out of forms at the time the Lessee and Lessor were agreeing to the lease, and the Lessor after that simply neglected to have one signed when new forms became available.

When asked in detail about this matter the Lessee admitted everything stated by the Lessor was right. There was not simply an intention to stay for a year, there was a commitment to stay in response to the Lessor's insistence that he would accept nothing less. When asked if she would have signed the written lease if it had been put in front of her that day, the Lessee said "yes."

The problems later encountered by the Lessee are not relevant to the issue of whether or not there was a fixed term lease.

The Commission finds that there was an oral fixed term lease and as a result insufficient notice of termination was given by the Lessee. The $275.00 claimed as rent owing by the Lessee is found to be rent owing.

2. Damage done by nail holes in the wall.

The Appellant is dissatisfied with the amount of damages allowed by the Director under this heading. The Appellant claims that the damage was beyond normal wear and tear.

John Ward, a partner of the Lessor and the person who usually inspects the premises and sees to their repair, testified that he found an extraordinary number of nails in the walls. Most of them were small but some were very large. When asked why he told Mr. Kelly that he didn't think there would be any reason not to return the security deposit, but that it was Mr. Mills' responsibility to deal with damage deposits, Mr. Ward stated that all he had done was take a quick walk-through the apartment and did not notice the nails then. He said you had to look closely to see most of them, sometimes only finding them, especially at night, if you ran your hand along the wall. At the same time, he left the final decision on the damage deposit to Mr. Mills.

The Commission accepts that there were a large number of nails in the walls. However, there is evidence that some of these were left by the previous tenant, and the Commission agrees with the Director that some of these would fall under the heading of normal wear and tear. As a result, the Commission confirms the award made by the Director on this matter, subject to a reduction off the August 21, 1996 invoice of the amounts of $13.29 and $14.11—as Mr. Mills indicated these were not correct claims in this matter. Therefore the amount owing to the Lessor under this heading is one-third of $206.91—a total of $68.97.

3. Advertising costs

The Appellant argues that these costs are valid claims in mitigation of his damages from the tenant's early termination and logically should therefore be able to be claimed by him.

The Commission upholds the decision of the Director on this matter. Whether or not the Appellant has a valid claim under breach of contract or any other heading does not determine the jurisdiction of the Commission. Our jurisdiction is set out in the legislation. This expense is beyond the matters the rentalsman, and subsequently the Commission, is empowered to deal with under the Rental of Residential Property Act. 

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Charles Mills (the Lessor) against Order No. LD97-110 of the Director of Residential Rental Property dated July 4, 1997.

Order

WHEREAS Charles Mills (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice dated July 24, 1997, against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on August 20 and 21, 1997;

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

IT IS ORDERED THAT

1. The Order of the Director is hereby varied in that the disbursement of the security deposit and interest in the amount of $561.36 is to be made as follows:

To the Lessor: $343.97

To the Lessee: $217.39

Total  $561.36

2. In all other respects the Order of the Director is confirmed.

DATED at Charlottetown, Prince Edward Island, this 27th day of August, 1997.

BY THE COMMISSION:

Linda Webber, Chair
 Emmett Kelly, 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.