Order LR98-10 - A-010-98 - Rental Appeal - Peter Schick v. Vanessa Flemming (Nov. 19/98)

Docket A-010-98
Order LR98-10

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Peter Schick (the Lessee) against Order No. LD98-173 of the Director of Residential Rental Property dated October 5, 1998.
BEFORE THE COMMISSION

on Thursday, the 19th day of November, 1998.

Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
Arthur Hudson, Commissioner

Order

Participants

1. Appellant:

Peter Schick (Lessee)

2. Respondent:

Vanessa Flemming (Lessor)

Reasons for Order

1. Introduction

Peter Schick (the Lessee) is appealing Order LD98-173 (Exhibit E-7) of the Director of Residential Rental Property issued by Shayne Hogan, Residential Rental Property Officer, on October 5, 1998. Order LD98-173 directed that the Lessor, Vanessa Flemming, is to receive the security deposit and interest of $251.88 because of cleaning and carpet replacement costs arising from damage to carpet at a rental unit at 92 Bunbury Road, Stratford, Prince Edward Island.

In making his appeal of Order LD98-173, the Lessee indicated that there was no stain on the carpet when he left the premises and that he had some more proof why the major and minor rust stains were not made by him (Exhibit E-8).

The Commission heard the appeal on November 9, 1998 at the Commission's offices in Charlottetown, Prince Edward Island. Peter Schick the Lessee and Vanessa Flemming the Lessor were present at the hearing.

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-10. These documents had been previously circulated to the parties to the appeal.

The Lessee's position on the substance of the appeal can be summarized as follows. The Lessee testified that when he moved into the rental unit there were no stains on the carpet. Subsequently, during his tenancy, he did find dirt on the carpet. He believes this dirt had been made by some one coming into his unit while he was out and tracking dirt onto the carpet. He did not inform the Lessor of this situation at the time.

The Lessee further testified that there was no rust colored stain on the carpet when he moved out of the unit on August 3, 1998. He also testified that there was a large rust colored stain on the carpet when he joined the Lessor and the Residential Rental Property Officer in an inspection of the unit on October 1, 1998. The Lessee contends that this stain must have happened after he moved out of the unit. In support of this contention the Lessee described the layout of the furnishing in the unit during his tenancy and the type of furnishing that were in the unit. In so doing, the Lessee pointed out that because of the positioning of the furniture, it would have been difficult for a spill to have created the rust colored stain on the carpet while he was occupying the unit. That is, a portion of the spill would have had to affect the carpet under one of his dressers.

The Lessee also circulated written statements from his separated wife and a friend which provided some qualified comments on the condition of the rental unit. In view of the fact that these people were not available at the hearing for questioning by the Commission and the Lessor, the Commission can not give any weight to these statements and did not accept them as exhibits.

The Lessor's position can be summarized as follows. She testified that the carpet in the rental unit had been replaced in February 1998 and was clean when the Lessee moved into the unit. She further testified that on the weekend following the Lessee leaving the unit, she inspected the unit and found the carpet to be very dirty. She subsequently had Service Master come in to clean the carpet but there were two rust colored stains (one very small and one large) that they could not remove.

She also testified that the unit had not been rented since the Lessee had left as she was no longer in the rental business. She concluded by indicating that she must replace the carpet in the unit (a one room bed/sitting unit), and that she should receive the security deposit and interest of $251.88 to put against the cleaning costs of $63.13 (Exhibit E-4.1) and the quoted carpet replacement costs of $304.41 (Exhibit E-4.3).

3. Decision

After reviewing all the evidence presented by way of documentation and testimony, and upon reviewing the Rental of Residential Property Act, (the Act) and its application to the facts, the Commission concludes that the appeal must be denied. In arriving at this conclusion, the Commission confirms the decision of the Director of Residential Rental Property in Order LD98-173.

The Commission wishes to acknowledge that we found the input from both the Lessee and Lessor to be very credible in this appeal.

In reaching its decision on this appeal, the Commission considered Section 6.4 of the Act which sets out the following obligation for lessees.

6.4    Obligation of the Lessee

The lessee shall be responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by any willful or negligent act of the lessee or of any person whom the lessee permits on the premises, but not for damage caused by normal wear and tear.

Very clearly from this provision of the Act, the lessee is responsible for any damage to a rental unit beyond that which would be expected through normal wear or tear.

From the testimony of both parties, the Commission accepts that the carpet in the rental unit was clean when the Lessee moved into the unit. The Commission also accepts that the carpet required cleaning when the Lessee moved out, and that the need for cleaning was above and beyond that which would represent normal wear and tear for the period the Lessee occupied the unit. The Lessor does, therefore, have a claim on the security deposit for the cost of cleaning the carpet.

Following from this, the remaining issue in dispute is the large rust colored stain which all parties, including the Residential Rental Property Officer, confirm is present on the carpet.

The two undisputed facts here are that there is a large rust colored stain on the carpet, and that this stain occurred sometime after the Lessee occupied the unit, as both parties agree the carpet was clean at the commencement of the tenancy. The Commission also accepts the Lessor's testimony that the unit has not been rented out between the time the Lessee left in August 1998 and the inspection on October 1, 1998.

The Commission understands from the documentation tabled by the office of the Director of Residential Rental Property that relatively shortly after the Lessee moved out of the unit, (Exhibit E-2 and E-3) the Director and his staff became involved in dealing with the security deposit on the unit. The Commission also notes that the carpet was cleaned before the end of August (Exhibit E-4.1).

All of these factors point to a high probability that the stain to the carpet must have occurred during the Lessee's tenancy and not after he moved out. In reconciling the Lessee's testimony on this matter with this conclusion, the Commission believes that it is possible the condition of the carpet at the time the Lessee left the unit was such that the stain in question did not stand out in the way it now does following the cleaning of the whole carpet by Service Master. The Commission confirms the Residential Rental Property Officer's conclusion that, under Section 6.4 of the Act, the Lessee is responsible for the rust colored stain on the carpet. The security deposit and interest is, therefore, to be paid to the Lessor to assist with the cost of cleaning and, in turn, replacing the damaged carpet.

In reaching this decision, the Commission is aware that the total cost of the cleaning (Exhibit E-4.1) and replacement (Exhibit E-4.3) of the carpet ($367.54), exceeds the $251.88 that is available through the security deposit and interest. The Commission is, however, limited in such cases to directing the payment of the security deposit plus interest only. If the Lessor wishes to seek the remaining costs, she will have to pursue such through other available means outside the Commission's jurisdiction.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Peter Schick (the Lessee) against Order No. LD98-173 of the Director of Residential Rental Property dated October 5, 1998.

Order

WHEREAS Peter Schick filed an appeal dated October 19, 1998 against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on November 9, 1998;

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

IT IS ORDERED THAT

1.    The appeal is denied;

2.    The Lessor shall receive a payment of $251.88, which constitutes the full security deposit and earned interest for the involved rental agreement;

3.    The payment of $251.88 will be made to the Lessor within fifteen (15) days of the issuance of this Order.

DATED at Charlottetown, Prince Edward Island, this 19th day of November, 1998.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Elizabeth MacDonald, 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.