Docket A-006-00
Order LR00-06

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Tammy and Dalton McArthur (the Lessees) against Order No. LD00-159 of the Director of Residential Rental Property dated September 25, 2000.

BEFORE THE COMMISSION

on Monday, the 16th day of October, 2000.

Ginger Breedon, Vice-Chair
Maurice Rodgerson, Commissioner
Jim Carragher, Commissioner

Order

Participants

1.     Appellant:

Tammy McArthur (Representing the Lessees)

2.    Respondent:

Bill & Kathy McInnis (Lessors)

Reasons for Order

1. Introduction

The Appellants, Tammy and Dalton McArthur, are appealing Order LD00-159 (Exhibit E-8) of the Director of Residential Rental Property issued by Rental Property Officer Shayne Hogan on September 25, 2000.  In Order LD00-159, the delegated Rental Officer ordered that the Lessees' application to set aside a Notice of Termination be denied, that the Notice of Termination is valid and that the rental agreement between the Lessees and Lessors is to be terminated as of September 30, 2000, with the Lessees required to vacate the rental unit on or before that date.

The 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-13.1 (the Act).

The Commission heard this appeal on October 11, 2000 in the Access PEI office in Summerside, Prince Edward Island.  Tammy McArthur for the Appellants and Bill and Kathy McInnis for 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-11.  These documents had been previously circulated to the Appellants and Respondents.

The Appellants and the Respondents tabled two additional letters each from third parties regarding some of the Appellants' previous rental history.  These letters were identified as Exhibits E-12 through E-15.

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

The Appellants reside in apartment #2 at 405 Chelsie Court, Summerside, P.E.I. with their young child.  They acknowledge that their child makes some noise when playing but feel this is only normal and that other tenants should understand this and, if disturbed by it, not move into a building where young children are present.

The Appellants also acknowledge that they do have arguments from time to time but they do not believe these would disturb neighbouring tenants.  They feel they are good tenants and try to get along with their neighbours.  They point to the two letters tabled at the hearing (Exhibits E-12 and E-13) as evidence of this, in that a previous landlord and a previous superintendent indicate they are responsible and quiet.

The Appellants state that they have had some conflict with the two neighbouring tenants in 405 Chelsie Court but apologies have been made and things are now quiet.  They also point out that they cannot afford to move to another apartment unit at this time.  The Appellants therefore believe they should be permitted to remain in their current unit. 

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

The Appellants' have caused substantial disturbances to the other tenants in 405 Chelsie Court.  That while some of the disturbance relates to their young child playing, the main disturbances are created by the Appellants themselves during their arguments with each other,  the late night noises from their unit and the problem with garbage in the yard of the building.  The Respondents point to the letters from current and previous neighbours of the Appellants' (Exhibits E-5.1, E-5.2, E-6, E-14 and E-15), their own personal experience over the years with the Appellants in this and other of the Respondents' apartment units and the complaints from current and previous neighbouring tenants of the Appellants.

The Respondents note that they have moved the Appellants in the past to other units in apartments they own because of problems between the Appellants and tenants in those buildings.  The Respondents further indicate that they have even offered this option again to the Appellants but the Appellants would not accept the offered units because they felt they were unsuitable, or they had previous conflict situations with some of the neighbouring tenants of the offered units.

The Respondents believe they have done everything they can with the Appellants in an attempt to resolve the problems involving their disturbance of neighbouring tenants.  The Respondents therefore ask that the Commission deny the appeal and have the Appellants vacate the apartment at 405 Chelsie Court.

3. Decision

The question the Commission must address in this appeal is whether the actions of the Appellants and/or persons admitted to their rental unit have interfered with the possession,  occupancy or quiet enjoyment of other lessees in the rental building.  This question arises from one of the Statutory Conditions to all rental agreements.  More specifically, under Section 6 of the Act, Statutory Condition 3 provides:3.

Good Behaviour

The lessee and any person admitted to the premises by the lessee shall conduct themselves in such a manner as not to interfere with the possession, occupancy, or quiet enjoyment of other lessees.

Where a lessee's actions breach Statutory Condition 3, a lessor may terminate the rental agreement and seek to have the lessee vacate the rental unit.  The legislative basis for this action is contained in Section 14(1) of the Act. 

14(1) The lessor may also serve a notice of termination upon the lessee where
(a)     statutory condition 3 or 4, or any other term of rental agreement has been breached, other than failure to pay rent. 

The Commission believes that while the Appellants may feel their actions have not breached Statutory Condition 3, the evidence clearly establishes that such breaches have taken place and have happened on a number of occasions.  The letters from the current neighbouring tenants (Exhibits E-5.1 and E-6), the letter from the maintenance worker (Exhibit E-5.2), the supporting information obtained by the Rental Officer in speaking with the neighbouring tenants (Exhibit E-8, pages 4 and 5) and the testimony of the Respondents all establish an ongoing situation of breaches of Statutory Condition 3.

The Commission notes that the Respondents have shown commendable patience with the Appellants.  They have also taken extraordinary efforts to attempt to accommodate the Appellants and to mitigate the Appellants' breaches of the Statutory Condition prior to and following the filing of the Notice of Termination (Exhibit E-1).

After considering all the evidence and argument presented by way of documentation and testimony and the Act and its Regulations, the Commission finds that the Appellants have breached Statutory Condition 3 and that the Respondents have properly filed the Notice of Termination (Exhibit E-1).  The Commission therefore dismisses the Appellants' appeal and confirms Order LD00-159 with appropriate variances. 

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Tammy and Dalton McArthur  (the Lessees) against Order LD00-159 of the Director of Residential Rental Property dated September 25, 2000.

Order

WHEREAS Tammy McArthur filed an appeal dated September 28, 2000, against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Summerside on October 11, 2000;

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

IT IS ORDERED THAT

1.  The appeal is dismissed;

2.  The Notice of Termination is valid;

3.  The rental agreement between the Appellants (Lessees) and the Respondents (Lessors) is terminated as of November 5, 2000;

4.  The Appellants (Lessees) are to vacate apartment #2 at 405 Chelsie Court, Summerside, P.E.I. on or before November 5, 2000.

DATED at Charlottetown, Prince Edward Island, this 16th day of October, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
 Maurice Rodgerson, Commissioner
Jim 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.