Docket A-007-98
Order LR98-4IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by John and Susan MacGillivray (the Lessees) against Order No. LD98-140 of the Director of Residential Rental Property dated August 4, 1998.
BEFORE THE COMMISSION
on Thursday, the 13th day of August, 1998.
Ginger Breedon, Vice-Chair
Debbie MacLellan, Commissioner
Elizabeth MacDonald, Commissioner
Order
Participants
1. Appellant:Susan and John MacGillivray
(the Lessees)2. Respondent:
Blair and Heather LaPierre
(the Lessors)
Reasons for Order
1. Introduction
Susan and John MacGillivray are appealing Order LD98-140 of the Director of Residential Rental Property (the Director) dated August 4, 1998. Order LD98-140 directed the Lessees to surrender the residential premises at 90 Sydney Street to the Lessors on or before midnight August 9, 1998, and, if this did not occur, that the sheriff is directed to put the Lessors in possession of the premises.
The Lessees appealed the Director's Order on August 10, 1998 (Exhibit E-5) on the basis that their plans to leave the Province had changed, problems continued with the residence and they were mis-informed as to course of action to take when a problem was to be rectified.
The Commission heard the appeal on August 12, 1998 at the Commission's offices in Charlottetown, Prince Edward Island. The participants in the appeal were Heather and Blair LaPierre and Susan and John MacGillivray.
2. Background
Documents from the office of the Director of Residential Rental Property pertaining to the appeal were filed at the hearing and identified as Exhibits E-1 through E-7. These documents had been previously circulated to the parties to the appeal.
In presenting their case to the Commission, the Lessees described problems they believed they encountered with some elements of the rented premises (e.g. stove, refrigerator, furnace). They indicated that they had brought their concerns to the attention of the Lessors but had not been satisfied with the action taken by the Lessors. The Lessees stated this was the reason they did not pay their July 1998 rent.
The Lessees also indicated the reason they had been late in making their rent payment in June was because of a number of factors including a holiday and Mr. MacGillivray just starting work. They stated that until June they had made their rent payments on time.
The Lessees confirmed that Susan MacGillivray had received the Notice of Termination by Lessor of Rental Agreement dated July 6, 1998 (Exhibit E-1). They also stated that John MacGillivray had not seen this notice before the ten- day period provided under Section 16 of the Rental of Residential Property Act, during which a Lessee can apply for an order by the Director to set aside the notice, had elapsed. The Lessees also acknowledged that they have not paid any rent for July or August and are not prepared to do so at this time.
The Lessors evidence was that they had responded in a timely and appropriate manner to the concerns that were brought to them by the Lessees. The Lessors noted that they had received numerous calls and had followed all directions given to them by the office of the Director of Residential Rental Property.
They also noted that there had been a late payment of rent in June and, when there was no payment of rent by July 6, 1998 for the month of July (rent due date was July 1), they had served a Notice of Termination by Lessor of Rental Agreement (Exhibit E-1). The identified grounds for termination was failure to pay rent for July and the fact that the rent payment had been late in June. The Notice established July 26, 1998 as the date the Lessees were to vacate the premises.
The Lessees did not move out by July 26, 1998, nor did they take action under Section 16 of the Act to have the notice set aside.
The Lessors then followed up on July 27, 1998 with an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-2) seeking an order from the Director to give possession of the rental premises to the Lessors. The Lessors pointed out that the Director subsequently so ordered but that the Lessees are still in the rental premises and, as a result, the Lessors are not receiving any rent and are not able to rent the unit to some one else. They indicated that they feel that this is very unfair.
3. Decision
Based on the evidence filed, all the evidence presented by the parties at the August 12, 1998 hearing and the provisions of the Rental of Residential Property Act and its Regulations, the Commission dismisses the appeal and confirms the Director's order with a variance to the date of possession of the residential premises.
The Commission notes that while the Lessees gave substantial testimony regarding their concerns about the condition of the residential premises, these concerns did not give them the right to refuse to pay the rent for the unit. The Commission is aware from the testimony of the Lessees that they had frequent contact with the office of the Director of Residential Rental Property. The Commission believes that, notwithstanding some concerns expressed by the Lessees regarding this contact, they should have continued to pursue their interests through this office rather than unilaterally stopping their rental payments.
The Commission also notes that the Lessors were very clear that they had responded properly to the concerns brought to their attention by the Lessees and felt they were being unfairly impacted by the failure of the Lessees to pay their rent or leave the rental unit.
On the substantive issue of the appeal, the Commission finds that once the Lessees failed to meet their July 1998 rent payment, the law very clearly sets out a process of action which the Lessors are entitled to follow. The Commission also finds, as did the Director, that the Lessors did properly follow the provisions in the Act to terminate the lease on the rental premises at 90 Sydney Street and, subsequently, in filing the application for an order to gain possession of the premises.
The Commission must, therefore, deny the appeal and make the following order.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by John and Susan MacGillivray (the Lessees) against Order No. LD98-140 of the Director of Residential Rental Property dated August 4, 1998.
Order
WHEREAS
Susan and John MacGillivray filed an appeal against a decision of the Director of Residential Rental Property dated August 10, 1998;AND WHEREAS
the Commission heard the appeal in Charlottetown on August 12, 1998;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The appeal is denied;
2. Order LD98-140 of the Director of Residential Rental Property is confirmed with a variation as follows:
- Possession of the residential premises at 90 Sydney Street, Charlottetown, Prince Edward Island is to be surrendered to the Lessors on or before midnight August 21, 1998; and,
- if this does not occur by that date, the sheriff is directed to put the Lessors in possession of the premises.
DATED at Charlottetown, Prince Edward Island, this 13th day of August, 1998.
BY THE COMMISSION:
Ginger Breedon, Vice-Chair
Debbie MacLellan, Commissioner
Elizabeth MacDonald, 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.