Docket A-001-98
Order LR98-3

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Christopher Queen (the Lessor) against Order No. LD98-066 of the Director of Residential Rental Property dated April 21, 1998.

BEFORE THE COMMISSION

on Monday, the 15th day of June, 1998.

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, Commissioner

Order

Participants

1. Appellant:

Christopher Queen (the Lessor)

2. Respondent:

M. Deborah Kemp (the Lessee)
Harold Kemp (Witness/Representative of the Lessee)

Reasons for Order

1. Introduction

Christopher Queen is appealing Order LD98-066 of the Director of Residential Rental Property dated April 21, 1998. Order LD-98-066 directed that the rental agreement between Mr. Queen and Deborah Kemp for a rental unit at Apartment #1, 43 Pownal Street, Charlottetown, Prince Edward Island, be terminated as of April 1, 1998, that Mr. Queen return the security deposit to Ms. Kemp, and that the security deposit of $200.00 be repaid by Mr. Queen to Ms. Kemp on or before May 14, 1998.

Mr. Queen appealed the Director's Order on May 11, 1998. In so doing, Mr. Queen identified his reasons for appealing on Form 17, Notice of Appeal (Exhibit E-4) as: insufficient cause for termination of the lease which had been fairly entered into; Ms. Kemp had agreed to take the apartment in the condition it was at the time of her inspection with the proviso that it would be painted while she was away in early April; Ms. Kemp was given access to the apartment on March 26, 1998, six days prior to the commencement of the lease as an accommodation to her; and that the delegated Officer of the Director of Residential Rental Property had not taken any of these facts into account in making his decision.

Mr. Queen's appeal was heard by the Commission on June 1, 1998 at the Commission's offices in Charlottetown, P.E.I. The participants in the appeal were as identified above.

2. Preliminary Matters

The Commission considered two preliminary matters in hearing this appeal.

The first matter involved a date identified by the Lessor in completing the Notice of Appeal (Exhibit E-4). In the space provided for recording the date of the decision/order of the Director that is being appealed, the Lessor identified the 14th day of April, 1998. He subsequently dated his signing of the Notice of Appeal as the 11th day of May, 1998. This latter date is confirmed by the Commission's recording of the date the Notice was hand delivered to its offices on May 11, 1998.

The Commission notes that the actual date of the Director's Order (Exhibit E-3(c)) is April 21, 1998 not April 14, 1998 as identified by the Lessor in the Notice of Appeal. The Commission does not believe this minor error in completing the Notice of Appeal has any impact on the appeal process and has decided that the appeal hearing should proceed.

The second preliminary matter addressed by the Commission is more substantive in nature. In the very early stages of the appeal hearing, the Lessor indicated he had provided a video tape of the condition of the apartment in question to the delegated Officer of the Director, and asked the Commission to view this tape. The Lessee, in turn, indicated she had photographs of the condition of the apartment and asked the Commission to view these.

The Commission has decided not to accept either the Lessor's video tape or the Lessee's photographs of the apartment as evidence. In making this decision, the Commission believes it would be impossible for it to be sure the tape and pictures were of the apartment in question, the timing of when the tape and pictures were taken and the conditions, lighting, etc. present during the video taping and picture taking. The Commission also notes that while the video tape and pictures might provide some general sense of the condition of the apartment, they have serious limitations in providing a true and complete picture. This can only be fairly achieved by means of a personal on site inspection by an independent party. The Commission notes that the delegated Residential Rental Property Officer has fulfilled this function through his inspection of the apartment unit on April 7, 1998.

3. Background

Documents from the Office of the Director of Residential Rental Property pertaining to this appeal were filed at the hearing and identified as Exhibits E-1 through E-6. These documents had been previously circulated to the parties to the appeal.

The evidence presented to the Commission is that:

The Lessee and the Lessor viewed the apartment at 43 Pownal Street on March 5, 1998. The apartment was still occupied at this time. However, the Lessee's impression was the apartment was generally neat and appeared satisfactory for her needs. The Lessee and Lessor subsequently signed a Standard Form of Rental Agreement (Exhibit E-3(a)) on that date for the apartment, with an occupancy date of April 1, 1998. The Rental Agreement also provided for a fixed term lease of six months, to which the Lessee had expressed some hesitation before agreeing to its inclusion in the Rental Agreement. The Lessee subsequently provided the Lessor with the $200.00 security deposit agreed to in the Rental Agreement.

The Lessee later contacted the Lessor to inform him that she believed the then current lessee in the unit had moved out. She also asked permission to move some things into the apartment early since she was planning a trip out of Province on March 30, 1998.

The Lessor agreed to check the apartment on March 26, 1998 to confirm whether the previous lessee had moved out. The Lessor further agreed to provide the Lessee with keys so she could move some things in before her trip if the apartment was vacant. The Lessor also let the Lessee know that he would not have an opportunity to clean up the apartment before her early use of it. He further believed that he and the Lessee had agreed to his cleaning up and making any repairs to the apartment while she was away on her trip.

The Lessee again contacted the Lessor on March 29, 1998 to inform him she had been inside the apartment and that it was so dirty she would not move into it. The Lessor, in turn, pointed out to the Lessee that she had seen the apartment on March 5, 1998, had entered into a fixed term Rental Agreement on that date and, that if she wanted to break the Rental Agreement, she would have to pay him the required two months rent.

The Lessee subsequently filed a Notice of Termination by Lessee of Rental Agreement (Exhibit E-3(b)) dated March 30, 1998. The Notice provided the Lessor with the required two month notice period for fixed term rental agreements with an effective date of May 31, 1998.

The Lessee's father, Harold Kemp, acting on behalf of the Lessee (Exhibit E-1), filed an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-2) dated April 1, 1998. In this Notice, Mr. Kemp, on behalf of the Lessee, indicated that Statutory Condition number 6.1 of the Rental of Residential Property Act was not being complied with. This Section of the Act deals with the condition of the premises. Mr. Kemp also indicated in the Application that the Lessee was seeking an order to authorize the termination of the rental agreement, a finding that the security deposit should be returned and an order that the amount owed (i.e. the security deposit) be paid.

The delegated Residential Rental Property Officer followed up with the Lessee and Lessor on the Application of Enforcement (Exhibit E-2), carried out an inspection of the unit on April 7, 1998 and issued Order LD98-066 on April 21, 1998. That Order is the subject of this appeal.

The main thrust of the evidence and argument presented by the Lessor and Lessee at the hearing before the Commission can be summarized as follows:

Lessor: The Lessee saw the unit, agreed to rent it and signed a fixed term Rental Agreement. The Lessor subsequently let the Lessee have early access to the unit on the understanding that he would not be able to clean the unit up before the early access, and that this work would be carried out while the Lessee was away. The work would only have taken a day or so and, even without this work, the condition of the unit was such that it was fit for habitation. The Lessee is, therefore, responsible for meeting the conditions of the fixed term rental agreement, including two months notice and associated rent, if she wishes to terminate the agreement.

Lessee: She initially saw the apartment while it was occupied and thought that it was generally neat and satisfactory for her needs. She signed a fixed term Rental Agreement for the apartment as requested by the Lessor even though she was uncomfortable in doing so. She subsequently saw the unit vacant and would not move into it because she believed it was too dirty. Statutory Condition 6.1 of the Act requires the Lessor to keep the premises in a good state of repair and fit for habitation and he had not done so. As a result he was not in compliance with the Act. She should, therefore, be able to terminate the rental agreement effective April 1, 1998.

4. Decision

Based on the evidence filed, all the evidence presented by the parties at the June 1, 1998 hearing and the provisions of the Act and its Regulations, the Commission finds the following:

Based on her own testimony, the Lessee was totally inexperienced in renting an apartment, immediately regretted having signed a rental agreement for the unit in question and had been "very foolish" in dealing with this rental situation.

The Lessor acted in good faith throughout the rental process with the involved unit.

However, notwithstanding any explicit or implicit understandings the Lessor may have felt he had regarding the timing of the cleanup and repair of the apartment unit, the requirements of the Act are very clear and uncompromising with regard to the condition of the premises. Section 6.1 of the Act reads as follows:

The lessor shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any enactment respecting standards of health, safety or housing notwithstanding any state of non-repair that may have existed at the time the agreement was entered into.

An experienced and independent Residential Rental Property Officer found the apartment unit unfit for habitation when he inspected it on April 7, 1998. It is reasonable to conclude that it was also not fit for habitation on April 1, 1998, the effective date for the rental agreement, since the apartment had been vacant from the 1st to the 7th of April.

Notwithstanding the Lessor's belief that there was no time pressure to have the work carried out on the apartment once the Lessee informed him on March 29, 1998 that she would not move in, the Lessor did have the time and the opportunity prior to and after that date to carry out the work before the April 1, 1998 effective date of the Rental Agreement. Failure to do so placed the Lessor in noncompliance with a statutory condition of the Act, and in turn, the Rental Agreement.

While the inexperience of the Lessee precipitated a number of the problems associated with this rental arrangement, in the final analysis, the failure of the Lessor to have the unit fit for habitation by the effective date of the rental agreement provides statutory grounds for the termination of the rental agreement effective April 1, 1998. The appeal must, therefore, be denied.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Christopher Queen (the Lessor) against Order No. LD98-066 of the Director of Residential Rental Property dated April 21, 1998.

Order

WHEREAS Christopher Queen filed an appeal against a decision of the Director of Residential Rental Property dated April 21, 1998;

AND WHEREAS the Commission heard the appeal in Charlottetown on June 1, 1998;

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

IT IS ORDERED THAT

1.    The appeal is denied;

2.    Order LD98-066 of the Director of Residential Rental Property is confirmed with the following variation:

Payment by the Lessor to the Lessee of the $200.00 security deposit is to be made on or before June 29, 1998.

DATED at Charlottetown, Prince Edward Island, this 15th day of June, 1998.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, 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.