Docket A-008-98
Order LR98-7IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Maura Johnston (the Lessee) against Order No. LD98-153 of the Director of Residential Rental Property dated August 27, 1998.
BEFORE THE COMMISSION
on Thursday, the 10th day of September, 1998.
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Clayton Bulpitt, Commissioner
Order
Participants1. Appellant:Maura Johnston
(the Lessee)2. Respondent:
Rosemarie Bradley
(the Lessor)Joan Bradley
(the Witness)
Reasons for Order
1. Introduction
Maura Johnston is appealing Order LD98-153 (Exhibit E-5) of the Director of Residential Rental Property issued by Shayne Hogan, a Delegated Residential Rental Property Officer of the Director (the Residential Property Officer) on August 27, 1998. Order LD98-153 directed the Lessee to surrender possession of the residential premises to the Lessor, and the sheriff to put the Lessor in possession of the premises on August 27, 1998. The Order also noted that the Lessee and Lessor had been advised of this direction on August 19, 1998.
In her appeal of the Director's Order dated August 28, 1998, (Exhibit E-6), the Lessee noted her reasons for the appeal as being:
I feel the decision was made without proper consideration for legal matters outside the issue (i.e. separation agreement broken, unclear ownership of said premises)
The Commission heard the appeal on September 4, 1998 at the Commission's offices in Charlottetown, Prince Edward Island. Present at the hearing for the Appellant was Maura Johnston (the Lessee) and for the Respondent were Rosemarie Bradley (the Lessor) and Joan Bradley (Witness), the mother of Rosemarie Bradley.
The Lessee indicated that different spellings of her first name have been used during this rental arrangement and that the spelling she wishes to have used is "Maura". The Lessor also indicated that she wished to be addressed as Ms. Bradley, not Ms. Trainor.
2. Background
Documents from the office of the Director of Residential Rental Property pertaining to the appeal were tabled at the hearing and identified as Exhibits E-1 through E-8 including sub-numbers 1 through 4 and 1 through 3 for multiple documents included under E-3 and E-4 respectively. These documents had been previously circulated to the parties to the appeal.
The Commission heard substantial testimony by both parties during the hearing regarding past and ongoing conflicts and other situations relating to the involved tenancy. While the Commission recognizes the difficulties both parties have been experiencing in the rental arrangement, the Commission did not find this testimony to be particularly useful in deciding the appeal.
The Lessor's position on the substantive matters of the appeal is that she has served proper notices of termination on the Lessee on two occasions (Exhibits E-3.3 and E-3.4) and that the Lessee has not moved out of the rental premises. She also subsequently filed an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-1) seeking possession of the premises and the Director, by Order LD98-153, ordered the Lessee to surrender the residential premises. She further notes that she is the legal owner of the property in question and, thereby, is the Lessor, and that this is supported by the documentation in Exhibits E-3.1 and E-3.2. She wants the Lessee to move out of the residential premises.
The Lessee's position is that she has a lease agreement with Francis Trainor, (Exhibit E-4.3), the Lessor's legally separated husband. She also believes that the indenture between Mr.Trainor and the Lessor, releasing Mr. Trainor's interest in the residential premises and property to the Lessor (Exhibit E-3.1), has been or is being overturned by the Court as a result of action taken by Mr. Trainor and that, as a result, Mr. Trainor is still owner of the property. Following from this, the Lessee contends that since Ms. Bradley does not own the property, she can not terminate the lease agreement.
The Lessee also testified that she did not make application to the Director under Section 16(1) of the Rental of Residential Property Act for an order setting aside the notice of termination from the Lessor, because Mr. Trainor's lawyer had advised her to ignore it since Ms. Bradley did not own the residential premises.
3. Decision
Based on the evidence filed, all the evidence presented by the parties at the September 4, 1998 hearing and the provisions of the Rental of Residential Property Act and its regulations, the Commission denies the appeal.
In reaching this decision, the Commission accepts, based on the only hard evidence presented to it (Exhibits E-3.1 and E-3.2), that at least at this time Ms. Bradley owns the property in question and is, therefore, the Lessor of the property. The Commission also notes that the Lessor properly filed termination notices (Exhibits E-3.3 and E-3.4) to which, by her own acknowledgement, the Lessee did not seek to have set aside by the Director as provided in Section 16(1) of the Act. The Commission further notes that by not applying to have these notices set aside within the established time period, the Lessee is, under Section16(3) of the Act, deemed to have accepted the termination on the effective date of the notice.
The Commission understands the confusion the Lessee has encountered relating to the matter of ownership of the residential premises. The marriage separation process has, and apparently continues to be subjected to challenge. The Commission must, however, follow the law in dealing with appeals. In this case, the Act is very clear on the process for terminating rental agreements.
The Commission therefore denies the appeal, with a variance to the possession date, and makes the following order.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Maura Johnston (the Lessee) against Order No. LD98-153 of the Director of Residential Rental Property dated August 27, 1998.
Order
WHEREAS
Maura Johnston filed an appeal dated August 28, 1998, against a decision of the Director of Residential Rental Property;AND WHEREAS
the Commission heard the appeal in Charlottetown on September 4, 1998;NOW THEREFORE,
for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The appeal is denied;
2. The Lessee is to surrender possession of the residential premises to the Lessor on or before midnight, September 23, 1998;
3. If the Lessee does not surrender possession of the residential premises to the Lessor by midnight, September 23, 1998, the sheriff is directed to put the Lessor in possession immediately thereafter.
DATED
at Charlottetown, Prince Edward Island, this 10th day of September, 1998.BY THE COMMISSION:
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Clayton Bulpitt, 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.