Docket A-008-99
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Sean Gracey and Peter Knox (the Lessors) against Order LD99-134 of the Director of Residential Rental Property dated September 28, 1999.
Order LR99-10BEFORE THE COMMISSION
on Wednesday, the 10th day of November, 1999.
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Mary Burge, Commissioner
Order
Participants1. Appellant:Sean Gracey
Peter Knox2. Respondent:
Kevin Blacquiere & Lillian Blacquiere
Represented by Kathy Blacquiere (Daughter)
Reasons for Order
1. Introduction
The Appellants Sean Gracey and Peter Knox are appealing Order LD99-134 of the Director of Residential Rental Property issued by Residential Rental Property Officer Shayne Hogan on September 28, 1999. Their appeal is being made under the provisions of Section 25(1) of the Rental of Residential Property Act R.S.P.E.I. 1988, Cap. R-13 (the Act).
Order LD99-134 directs the Appellants to return cleaning equipment to Kevin Blacquiere with no recovery for storage and moving costs and denies the Appellants' Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-1).
In appealing Order LD99-134, the Appellants indicate in their Notice of Appeal (Exhibit E-4) that Kevin Blacquiere has not established ownership of the cleaning equipment to them or to the Island Regulatory and Appeals Commission and, as a result, how can the Commission (or the Director of Residential Rental Property) order that the equipment be turned over to Mr. Blacquiere. The Appellants further state that once ownership is established, they should be compensated for removal and safe storage of the equipment for nearly three years.
The Commission heard this appeal on November 5, 1999 at the Commission's offices in Charlottetown, P.E.I. Messrs. Gracey and Knox for the Appellants and Kathy Blacquiere on behalf of the Respondents were present for 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-6. These documents had previously been circulated to the Appellants and Respondents.
The Appellants tabled an additional document, a faxed letter from FabriOZone regarding cleaning equipment on which they have a lien. This document is identified as Exhibit E-7.
The Appellants' position on the appeal can be summarized as follows:
The cleaning equipment in question was left in Apartment #1 at 304 Richmond Street, Charlottetown, P.E.I. by a lessee, James Collicut, when Mr. Collicut moved out in December 1996. The Appellants, who were the lessors of this apartment, removed this equipment from the apartment along with some other items which they believed had been abandoned by Mr. Collicut. They have further confirmed their belief that the items left at 304 Richmond Street by Mr. Collicut were abandoned as they have not received any communications from him since his move out in December 1996.
The Appellants further testify they were subsequently indirectly informed that the cleaning equipment (Exhibit E-2) was not Mr. Collicut's, but had been loaned by Mr. Blacquiere to Mr. Collicut and that Mr. Blacquiere wanted the equipment back. The Appellants also indicate that in January 1999 they received a phone call from the Charlottetown Police who informed them that Mr. Blacquiere had made a charge of theft against them for the cleaning equipment. The Appellants indicate they informed the police of the situation relating to the cleaning equipment, and that they would return the equipment to Mr. Blacquiere when they receive reasonable costs for moving and storage. They have not heard from Mr. Blacquiere since then and have, therefore, continued to retain the cleaning equipment.
The Appellants state that originally they were interested in the cleaning equipment because of rent owing by Mr. Collicut and then, subsequently, the Blacquieres, but later found out they can not hold personal belongings of a lessee because of rent owing as this is not permitted under the Act (Section 27). They advise that Kevin Blacquiere and Lillian Blacquiere owe them rent on a unit they leased from the Appellants at 20 Grafton Street but that, in view of the Section 27 provisions of the Act, they are pursuing this independently of the issue regarding the disposal of the cleaning equipment.
The Appellants contend they do not believe they can release the cleaning equipment to Mr. Blacquiere until it is clearly established that he owns the equipment, as they could subsequently be held liable by the real owner. They further point out from Exhibit E-7 that the equipment, in fact, belongs to FabriOZone and not Mr. Blacquiere. They also believe they must be properly compensated for moving and storage before returning the cleaning equipment to the owner.
The Respondents' position on this appeal can be summarized as follows:
Mr. Blacquiere had a franchise with FabriOZone and, through this arrangement, leased the cleaning equipment from that company. The equipment is, therefore, his responsibility. He loaned this equipment to Mr. Collicut and has been seeking its return from the Appellants since he learned they had obtained it from Collicut's apartment after Collicut moved out.
The Respondents testify that they believe the Appellants have been holding the cleaning equipment in an attempt to force them to pay rent owing and that this is not permitted under the Act. They further contend the Appellants are fully aware that the cleaning equipment is Mr. Blacquiere's and that it should be returned. They also point out that since the Appellants have been holding the cleaning equipment in contravention of the Act, no moving and storage costs should be required.
The Respondents want the cleaning equipment returned to Mr. Blacquiere.
3. Decision
After considering the evidence presented by way of documentation and testimony, and reviewing the Act and its application to the facts, the Commission has concluded that the Act does not provide either the Director of Residential Rental Property or the Commission with the power to make an order in this case.
In dealing with matters relating to rental agreements, the Director of Residential Rental Property and the Commission only have those powers which are clearly provided to them in the Act. Where the circumstances of a case are such that they do not, in fact, fall within the provisions of the Act, the involved parties must consider other means of resolving their dispute if they can not resolve it between themselves. These other means could include civil or criminal actions depending on the circumstances involved.
For the Director or Commission to have the power to take action under the Act, the involved parties must have a lessor/lessee relationship through a rental agreement, whether written or oral, or expressed or implied. The rental agreement, in turn, must define the residential property which is the subject of the agreement. The Commission, therefore, believes the Act properly limits the Commission's and the Director's power to provide direction on rental matters to those situations where the matter in dispute is part of a rental agreement on a specific residential property.
The Act defines residential property as:
1(q) "residential property" means a building in which, and includes land on which, residential premises are situated;
Residential premises is defined as:
1(p) "residential premises" or "premises" includes
(i) any house, dwelling, apartment, flat, tenement or other place that is occupied or may be occupied by a natural person as a residence or that part of any such place that is or may be occupied by a natural person as a residence, whether such residential premises are furnished, partly furnished or unfurnished,
The facts in this case are that a rental agreement existed between the Appellants and Respondents for a residential premises at Apartment #2 in a residential property at 20 Grafton Street, Charlottetown. Another rental agreement existed between the Appellants and James Collicut for a residential premises at Apartment #1 in a residential property at 304 Richmond Street. When Mr. Collicut moved out of this unit, he left behind some personal items including cleaning equipment. The equipment had been loaned to Mr. Collicut by Mr. Blacquiere. The Appellants placed this equipment into storage and subsequently made application to the Director of Residential Rental Property for permission to dispose of it. In so doing, they identified Kevin and Lillian Blacquiere as the involved lessees rather than the actual lessee, Mr. Collicut.
As already outlined, the Commission does not believe the Act provides for it or the Director to become involved in disputes outside those arising from a rental agreement on a specific residential premises and property. In this case the Act does not provide either the Director or the Commission with the power to decide on a dispute between the Appellants and Respondents regarding the disposal of cleaning equipment left in Apartment #1, 304 Richmond Street, since the Appellants and Respondents were not the parties to the rental agreement for that unit. That is, however, what is being asked by the Appellants.
The Commission therefore concludes that neither it or the Director has the legal power or jurisdiction to decide on the application (Exhibit E-1) made by the Appellants. If the Appellants and/or the Respondents wish to pursue this matter further, they will have to consider other avenues outside the Rental of Residential Property Act.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Sean Gracey and Peter Knox (the Lessors) against Order LD99-134 of the Director of Residential Rental Property dated September 28, 1999.
Order
WHEREAS
Sean Gracey and Peter Knox filed an appeal dated October 12, 1999 against a decision of the Director of Residential Rental Property ;AND WHEREAS
the Commission heard the appeal in Charlottetown on November 5, 1999;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The Director of Residential Rental Property and the Commission do not have the power under the Act to decide on the Appellants' application, as submitted, for the disposal of personal property from Apartment #1 at 304 Richmond Street, Charlottetown;
2. Following from "1" above, Order LD99-134 of the Director of Residential Rental Property is set aside and, as a result, is null and void and has no force on the Appellants or Respondents.
DATED
at Charlottetown, Prince Edward Island, this 10th day of November, 1999.BY THE COMMISSION:
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Mary Burge, 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.