Order LR00-03 - Rental Appeal - A-003-00 - Blair Kelly v. Richard A. Jenkins (May 19/00)

Docket A-003-00
Order LR00-03

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Blair Kelly (the Lessee) against Order LD00-084 of the Director of Residential Rental Property dated May 4, 2000.

BEFORE THE COMMISSION
on Friday, the 19th day of May, 2000.

Ginger Breedon, Vice-Chair
James Carragher, Commissioner
Arthur Hudson, Commissioner

Order

Participants

1.     Appellants:

Blair Kelly (Lessee)

2.    Respondent:

Richard A. Jenkins (Lessor)

Reasons for Order

1. Introduction

The Appellant, Blair Kelly, is appealing Order LD00-084 (Exhibit E-3) of the Director of Residential Rental Property issued by Rental Property Officer John Keizer on May 4, 2000. In Order LD00-084, the delegated Rental Officer ordered that the Lessee pay rent of $1,280 on or before May 15, 2000 as per a mutual agreement made between the Lessee and Lessor at the hearing and, failing that, that possession of the residential premises be surrendered to the Lessor and the sheriff directed to put the Lessor in possession on May 16, 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).

In appealing the Director's decision, the Appellant indicates in his Notice of Appeal (Exhibit E-4) that the Lessor failed to fix the furnace for the past three weeks, failed to fix a burner on the stove and failed to paint the ceiling from a leaky roof.

The Commission heard this appeal on May 17, 2000 at the Commission's offices in Charlottetown, P.E.I. Blair Kelly for the Appellant and Richard Jenkins for the Respondent 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 Appellant and Respondent.

The Respondent tabled an additional document, an undated letter from the Appellant to the Respondent, which was identified as Exhibit E-7.

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

The Appellant acknowledges that he has irregular income and, as a result, he has been late in his rent payments on a number of occasions during his four years in the rental premises in question. He further indicates that he understands the Respondent's right and need to have the rent paid on time and that $1,280 is owing in rent including rent for the month of May, 2000.

The Appellant further acknowledges that he should not have committed to paying the outstanding rent of $1,280 on or before May 15, 2000, as agreed to at the hearing with the Rental Officer, as he did not know when he would be paid for construction work he had completed. He confirms that he had not been able to make payment on the agreed to date but indicated that he will be commencing work for a contractor, which will provide him a regular income. He feels this will enable him to pay the outstanding rent and be more regular in his payments in the future.

In respect to the indicated reasons for his appeal (Exhibit E-4), the Appellant submits that the repair issues were not particularly significant. He indicates that he really wanted to buy some time before having to leave the rented unit as he waited for payment from his earlier construction work, which he expects to receive before the end of May. He also testified that it is his intention to pay the outstanding rent when he receives his funds and to then move out, if the Respondent still wants him to do so.

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

The Appellant has been the lessee in the unit for approximately four years, during which time he has only paid the rent on time once. As a result, the Respondent indicates that he has served three notices seeking to terminate the lease because of late and/or non-payment of rent. He further notes that in the earlier cases, he did not follow through on terminating the rental agreement and the Appellant continued to lease the unit. The Respondent now believes enough is enough and he is not prepared to continue with late and/or partial rent payments.

The Respondent confirms that the Appellant did not meet the mutually agreed to May 15, 2000 date for the payment of outstanding rent. The Respondent therefore wants possession of the rented premises as provided in Order LD00-084.

The Respondent also points out, as evidenced in the letter (Exhibit E-7) delivered to him by the Appellant at the time the Appellant hand-delivered his Notice of Appeal, that the appeal is simply a move to buy the Appellant some time before moving out of the unit. The Respondent wants the appeal dismissed and possession of the rental unit surrendered to him.

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 dismisses the appeal.

In reaching this decision, the Commission notes that there is no disagreement between the Appellant and Respondent on the facts of this case – the Appellant has been habitually late in making rent payments.

The Commission also found that the Respondent properly applied under section 13(3) of the Act to the Director of Residential Rental Property for an order to have the involved rental unit surrendered to him, and directing the sheriff to put him in possession of the unit. The Director properly so ordered in Order LD00-084, but with a mutually agreed to alternate process where possession would not be required to be turned over to the Respondent if the Appellant paid the outstanding rent of $1,280 by May 15, 2000. The Appellant did not, by his own testimony, pay the outstanding rent by May 15, 2000. The Appellant also did not convince the Commission that the repair work outlined in his Notice of Appeal was of a nature, or a time frame, which would justify an adjustment in the rent owing or a delay in turning over the rental unit to the Respondent.

The Commission therefore dismisses the appeal and confirms Order LD00-084 with appropriate variances.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Blair Kelly (the Lessee) against Order LD00-084 of the Director of Residential Rental Property dated May 4, 2000.

Order

WHEREAS Blair Kelly (the Appellant) filed an appeal dated May 8, 2000, against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on May 17, 2000;

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

IT IS ORDERED THAT

1. The appeal is dismissed;

2. The Appellant (Lessee) shall surrender possession of the residential premises to the Respondent (Lessor) and the sheriff is directed to put the Respondent (Lessor) in possession on May 29, 2000;

3.   The Appellant (Lessee) shall pay the Respondent (Lessor) $730 in outstanding rent for the months of March and April 2000 and $496.77 in outstanding rent for that portion of the month of May prior to the surrender date for the rental premises (28 of 31 days), for a total rent owing payment of $1,226.77;

4. The Appellant (Lessee) shall pay the Respondent (Lessor) the rent owing of $1,226.77 on or before May 29, 2000.

DATED at Charlottetown, Prince Edward Island, this 19th day of May, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
James Carragher, 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.