Order LR00-02 - Rental Appeal - A-001-00 - Gayle Cooke et al v. Christopher Queen (Feb 25./00)

Docket A-001-00
Order LR00-02

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gayle Cooke, Vicki Cooke and Angie Gamble (the Lessees) against Order LD00-004 of the Director of Residential Rental Property dated January 13, 2000.

BEFORE THE COMMISSION
on Friday, the 25th day of February, 2000.

Ginger Breedon, Vice-Chair
Mary Burge, Commissioner
James Carragher, Commissioner

Order

Participants

1.     Appellants:

Gayle Cooke (Lessee)
Viki Cooke (Lessee)
Allan Cooke (Witness)

2.    Respondent:

Christopher Queen (Lessor)

Reasons for Order

1. Introduction

The Appellants Vicki Cooke, Gayle Cooke and Angie Gamble are appealing Order LD00-004 (Exhibit E-8) of the Director of Residential Rental Property issued by Residential Property Officer Shayne Hogan on January 13, 2000. This appeal is being made under the provisions of Section 25 (1) of the Rental of Residential Property Act R.S.P.E.I. 1998, Cap. R-13.1 (the Act).

The Director of Residential Rental Property's delegated officer found in Order LD00-004 that the Lessees (the Appellants) had not provided proper Notice of Termination to the Lessor (the Respondent) in ending a fixed term lease on a rental unit at 238 King Street, Charlottetown, Prince Edward Island. As a result, the delegated officer found that the Appellants owed $480 in rent and that this rent was to be paid to the Respondent on or before February 10, 2000.

In appealing Order LD00-004, the Appellants indicate in their Notice of Appeal (Exhibit E-9) that they feel they gave enough notice considering the fact they gave verbal notice on the day they signed the lease.

The Commission heard this appeal on February 22, 2000 at the Commission's offices in Charlottetown, P.E.I. Ms. Gayle Cooke, Ms. Vicki Cooke, and Mr. Allan Cooke for the Appellants and Mr. Christopher Queen for the Respondent were present for the hearing.

2.    Background

Documents from the Office of the Director of Residential Rental Property pertaining to this appeal were tabled at the hearing and identified as Exhibits E-1 through E-11. These documents had previously been circulated to the Appellants and Respondent.

The Appellants' position on the appeal can be summarized as follows:

The Appellants' signed a fixed term rental agreement (Exhibit E-3) with the Respondent for a rental unit at 238 King Street, Charlottetown, P.E.I. The term of the rental agreement was from May 1, 1998 to January 31, 1999 and was for a rent of $480 per month. The term was based on the time the Appellants required the unit while completing their schooling.

The Appellants testify that the day they signed the lease, they verbally informed the Respondent that they would be moving out January 17, 1999 when they had completed school. They further testify that they attempted to contact the Respondent by phone during December 1998 to inform him that they would be moving out of the rental unit by the end of January, but were not able to make contact with him as he did not return their calls. The Appellants indicate they finally made contact with the Respondent when he visited the rental unit in late December 1998 or early January 1999, and informed him they would be moving out by the end of January 1999.

The Appellants submit that the Respondent showed the rental unit in question to perspective lessees a couple of times before they moved out. They indicate that these showings took place before they had been able to contact the Respondent to give notice of their moving out, and believe this shows that the Respondent was aware they were moving out at the end of the fixed term lease.

The Appellants acknowledge they did not understand that they were required to give a Notice of Termination not less than sixty days before the expiry of the term of the fixed term rental agreement, to be effective on the last day of the term. Notwithstanding this, they believe that by informing the Respondent verbally when they signed the lease that they would be moving out the end of January 1999, they have provided adequate notice of termination. They therefore do not believe they should be required to pay $480 in rent for the month of February 1999.

The Respondent's position on this appeal can be summarized as follows:

The Respondent believes this matter is very "cut and dried". He points out that the Act clearly establishes the requirements for a lessee giving Notice of Termination of a fixed term rental agreement. He further points out that the Appellants did not follow the requirements of the Act and, as a result, have not lived up to their responsibilities under the Act. The Respondent also notes that it is not his responsibility to ensure the Appellants were aware of those responsibilities.

The Respondent's testimony is that he was not given verbal notice by the Appellants until January 1, 1999, or there about. He further testifies that he did not show the rental unit to perspective lessees until after receiving this notice.

The Respondent contends that since the Appellants did not comply with the requirements of the Act, he is entitled to receive the rent payment of $480 for February 1999. He concludes by seeking confirmation of Order LD00-004 and dismissal of the appeal.

3. Decision

After considering the evidence and argument presented by way of documentation and testimony, and reviewing the Act and its Regulations and their application to the facts, the Commission has to conclude that the appeal must be dismissed.

The Act provides the opportunity for a lessor and lessee to enter into a fixed term rental agreement. The Act also provides under Section 12 that a lessor can not terminate a rental agreement except for cause.

12. A lessor shall not terminate a rental agreement, whether of fixed or indeterminate duration, other than for a cause set out in section 13, 14 or 15.

The intent of Section 12 is to provide a substantial level of security for lessees in their rental arrangements. This is achieved by requiring the lessor to continue a rental arrangement unless there is a specifically identified cause to permit termination.

This security for the lessee brings with it a concurrent obligation to ensure that when the lessee wishes to terminate a rental agreement, a proper termination process is followed which provides a reasonable opportunity for the lessor to mitigate the loss of a lessee from the rental unit. This process is set out in Section 11 of the Act and, in the case of a unit rented under a fixed term rental agreement, requires that a Notice of Termination by a lessee must be served not less than sixty days before the expiry of the term of the rental agreement, to be effective on the last day of the term. The termination notice must also comply with Section 18 of the Act in terms of form and content.

The evidence is clear in this case that the Appellants did enter into a fixed term rental agreement. The evidence is equally clear that the Appellants did not comply with the requirements of Sections 11 and 18 in terminating that rental agreement.

The Commission understands the Appellants testimony that they were not aware of the process they were required to follow to properly terminate their rental agreement. While the Commission can sympathize with the Appellants' situation in this case, the Commission is, as are the Appellants and Respondent, bound by the law as contained in the Act and Regulations. The Commission therefore has no choice but to apply the law as written, whether or not the involved parties are aware of the requirements of the Act and Regulations.

On a separate but related matter, the Commission notes from a document filed (Exhibit E-3) and answers to questions at the hearing, that the Respondent only forwarded the first two pages of the signed Standard Rental Agreement to the Appellants and did not include the remaining pages which contain Schedules A through E. The inclusion of these Schedules (particularly Schedule B) may have been helpful to the Appellants in understanding the required termination process. The Commission would, therefore, suggest the Respondent ensure that these schedules be included with any copies of Standard Rental Agreements that he circulates in the future.

In making this suggestion, the Commission recognizes that the failure to do so does not affect this appeal. Section 30(2) of the Act provides that where a rental agreement in writing is executed and is not later forwarded to the lessee, the provisions of the Act and the standard form rental agreement are still binding on both the lessee and lessor. This is the situation in this case.

For the reasons given above, the Commission finds that the Appellants did not comply with the requirements of the Act in providing their Notice of Termination. The Commission must, therefore, dismiss this appeal and confirm Order LD00-004 with a variance to the timing of payment.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gayle Cooke, Vicki Cooke and Angie Gamble (the Lessees) against Order LD00-004 of the Director of Residential Rental Property dated January 13, 2000.

Order

WHEREAS Gayle Cooke, Vicki Cooke and Angie Gamble filed an appeal dated January 20, 2000, which was received by the Commission on February 4, 2000, against a decision of the Director of Residential Rental Property ;

AND WHEREAS the Commission heard the appeal in Charlottetown on February 22, 2000;

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

IT IS ORDERED THAT

1. The appeal is dismissed;

2. The Appellants owe $480 in rent to the Respondent;

3. The Appellants shall pay the Respondent the amount owing of $480 on or before March 17, 2000.

DATED at Charlottetown, Prince Edward Island, this 25th day of February, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Mary Burge, Commissioner
James Carragher, 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.