Docket A-008-00 & A-001-01
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by the Lessee, Debbie Cullen and the Lessor, David Dodds against Order No. LD00-206 of the Director of Residential Rental Property dated December 11, 2000.
Order LR01-02BEFORE THE COMMISSION
on Thursday, the 1st day of February, 2001.
Maurice Rodgerson, Panel Chair
Jim Carragher, Commissioner
Norman Gallant, Commissioner
Order
Participants1. Lessor: David Dodds
Witness: Charles Clarkson2. Lessee: Debbie Cullen
Witness: Mary MacLean
Reasons for Order
1. Introduction
Debbie Cullen and David Dodds are both appealing Order LD00-206 (Exhibit E-16) regarding rental property at 38 Hillsborough Street, Charlottetown, PEI and the finding of $473.52 in rent owing by the Lessee.
In her Notice of Appeal the Lessee states she is not able to pay the amount ordered in the time frame indicated. She also states she was never provided a mailing address for Mr. Dodds, and had to phone him frequently to advise him to pick up the rent which included his notice, and previous to this she told Mr. Dodds that if he did not do repairs to the unit she would be leaving.
In his Notice of Appeal the Lessor states he disagrees with the decision - rest to come and refers to unequal testimony before the law. In a subsequent letter dated January 1, 2001, to the Commission (Exhibit E-22) he states he does not agree with the amount of rent owing, the name decision, and the damage deposit decision.
As both the Lessor and Lessee appealed the decision, the Commission decided to hear both appeals at the same time and scheduled a hearing date for January 17, 2001. Mr. Dodds subsequently contacted the Commission requesting a postponement of the hearing due to medical reasons. The hearing was rescheduled for January 23, 2001 at the Commission's offices.
2. Background
Documents from the office of the Director of Residential Rental Property were tabled at the hearing and identified as Exhibits E-1 through E-21. The Lessor's letter to the Commission, dated January 1, 2001, was tabled as Exhibit E-22. This letter indicated he could not attend the first proposed hearing and also outlined further reasons for his appeal.
The Lessor tabled four additional exhibits at the hearing:
1. Exhibit E-23, signed statements regarding cleaning of the apartment;
2. Exhibit E-25, copy of a letter dated May 31, 1997 indicating a proposed rent increase;
3. Exhibit E-26, cancelled cheque showing a payment for rent and payment towards damage deposit; and
4. Exhibit E-27, a listing of claimed damage.
The Lessee tabled one additional exhibit:
Exhibit E-24, photocopies of cancelled cheques for rent paid to Mr. Dodds.
The Lessor requested that his witness, Charles Clarkson, be heard first as he had an appointment at the hospital. This was agreed.
Mr. Clarkson explained that he helped look after the financial accounts for Mr. Dodds. He indicated that no transfer had been made from the damage deposit account to the rent account of Ms. Cullen. Mr. Dodds stated it was held in the damage deposit account rather than applied towards rent.
Mr. Clarkson also stated he drove Mr. Dodds on some occasions from Cornwall to Charlottetown, and recalls Mr. Dodds talking in general terms about the contents of Exhibits E-4 and E-5. On another occasion he drove Mr. Dodds to the apartment and together they inspected the apartment and he observed much of the damage claimed by Mr. Dodds.
Mr. Clarkson stated on many occasions he was responsible for picking up the rent payment, and on some occasions he could not pick up the rent at 38 Hillsborough Street as Ms. Cullen was not at home.
On questioning from Ms. Cullen, Mr. Clarkson stated that she did raise some issues with him, such as painting, and he made notations and passed those on to Mr. Dodds. Having completed his testimony Mr. Clarkson was excused from the hearing.
It was decided that Ms. Cullen would present her arguments first as her appeal was filed first with the Commission.
Ms. Cullen says she disagrees with the retention of the damage deposit. She outlined her disagreement in her letter of August 24, 1999 (Exhibit E-11), and says many items were out of her control, or were normal wear and tear. She claims all the floors were scrubbed and the apartment was in better condition because she purchased paint and wallpaper herself to make improvements.
She states Mr. Dodds was difficult to contact and she did not have an emergency number to contact him, nor a proper mailing address. Rent payments were left in the porch, and sometimes were not picked up for several months.
She also claims the previous tenant paid rent of $450.00, but she was charged $485.00 per month. Parking was poor, the furnace broke down on several occasions, and demands for repairs to the apartment were not addressed.
She states she vacated the apartment prior to July 15, so any memos Mr. Dodds left after that date were left in an empty apartment. Rather than pay the rent and seek return of her damage deposit she subtracted the damage deposit from what she considered the final rent payment.
Ms. Cullen further stated she spent six hours of work time on the appeal process, and expressed concern the damage claim had changed and increased from $245.00 to $1,345.00.
Mr. Dodds stated that he was withdrawing the January 1, 2001 claim and was only seeking the damage deposit.
Ms. MacLean, a witness for Ms. Cullen states, in her opinion, the apartment needed significant repairs. She helped Ms. Cullen clean the apartment prior to vacating it and states it was in as good a condition as possible given the lack of repairs over the years.
In continuing to present his information, Mr. Dodds stated he disagreed with the repeat of the damage deposit case because he contends that issue was dealt with.
He presented a series of receipts that indicated the tenant previous to Ms. Cullen paid rent in the amount of $485.00 per month. He contends the rental was actually a sublet by Sue Woodworth to Ms. Cullen and he accepted Ms. Cullen as a tenant on the word of Ms. Woodworth.
There was no complaint about the condition of the premises when Ms. Cullen moved in, and he stated that the parking arrangement related to the previous tenant and he did not make an agreement for parking with Ms. Cullen although she continued to use the front lawn area.
He further stated no special emergency number was given to any tenant because he did not have a special number. He says there was a number for the furnace repairperson and Ms. Cullen would have access to that number. He pointed out that Ms. Cullen had contacted him by phone on several occasions, and letters filed with the Commission indicate she had sent letters to Mr. Dodds so she obviously had an address.
He stated the tenant did not give the notice required by law that she was vacating the apartment. He pointed out that she had previously indicated she would move out if certain things were not done by a specific date, yet she did not follow through with the promised written notice, and did not move out in the timeframe stated.
Mr. Dodds says on some occasions he did pick up the rent and it was not always left in the porch as stated by Ms. Cullen. He also stated he was home in the evenings in early July 1999 and could have been contacted if Ms. Cullen had called.
Mr. Dodds says the evidence of Mr. Clarkson indicates there was damage to the apartment that was beyond normal wear and tear. He tabled statements from others as to the amount of work required to clean the apartment, and he tabled a list of damage he claimed was caused by Ms. Cullen during her tenancy. He stated the damage is well over the amount of the damage deposit.
He stated that rather than seeking the full amount he is only seeking the original damage claim of the damage deposit of $243.00, plus interest. He is also seeking the rent owed for the month of August 1999, due to failure to provide proper notice.3. Decision
Disputes can be tainted by a variety of factors that reflect animosity between the two parties, but the Commission must deal with the requirements of the legislation and only matters relating to the specific issues of damage, rent, and notice were addressed by the Commission.
On the matter of the rate of rent, the receipts provided by Mr. Dodds clearly indicate that over a period of a number of months the former tenant, Ms. Woodworth, paid rent in the amount of $485.00 per month for the apartment at 38 Hillsborough Street. This is the same rental rate charged Ms. Cullen. No evidence was presented to indicate rent in the amount of $450.00 was charged the previous tenant as claimed by Ms. Cullen. The tenant also agreed to pay the rental rate of $485.00 and did not take any action at that time to claim it was increased by $35.00. The Commission finds the rent charged Ms. Cullen was the same rate as charged the previous tenant.
In regard to the proposed June 1998 increase in rent. Mr. Dodds presented a copy of a letter addressed to Ms. Cullen which he says was delivered to her in 1998. Ms. Cullen says Mr. Dodds did slip memos under the door from time to time, but she did not get any written notice of a rent increase. Ms. Cullen's letter of June 4, 1998 (Exhibit E-7) could be viewed as the tenant disputing the proposed rent increase, and she says there may have been some verbal notice, but she never would have accepted a rent increase because she was not satisfied with the condition of the apartment. No evidence was presented that the matter of a rent increase was pursued by the landlord in the twelve month period from June 1998, the date on Exhibit E–25, until the tenant vacated the apartment in July of 1999. It would be reasonable to assume that if the rent were set to increase and the tenant refused to pay, the landlord would have taken more immediate action.
The Commission notes that Section IV of the Rental of Residential Property Act outlines the requirements for rent increases. Section 22 states:
“Every notice of increase in rent for residential premises shall a) be in writing in the form prescribed by regulation; and b) be served on the lessee …(ii) in the case of a monthly agreement, at least three months before the date on which it is to take effect.”
The Commission finds Mr. Dodds did not meet the requirements of the Act and the claim for payment of this rent increase is denied.
The Commission also does not find this rental arrangement between the Lessee and Lessor to be a sublet. Section 6.5(1) of the Act states:
5. Subletting Premises
“Where a fixed term rental agreement is for a period greater than six months, the lessee may assign or sublet the premises subject to the consent of the Lessor….”
Section 1(g) defines lessee:
“Lessee means the person to whom permission is given, pursuant to a rental agreement, to occupy residential premises and includes his assigns and legal representatives”.
Mr. Dodds indicated Ms. Woodworth moved to another of his apartments and helped him find a tenant for 38 Hillsborough Street, and he spoke with Ms. Cullen and agreed to rent her the apartment. The claim filed by Mr. Dodds for damage and rent owing is against Ms. Cullen not Ms. Woodworth. Ms. Cullen paid a damage deposit to Mr. Dodds and made all rent payments directly to him, and dealt with him regarding any problems at the apartment. The relationship was clearly that of landlord and tenant.
Notice of Termination was another matter of dispute. Section 11. 2.1(a) of the Act requires:
“Where premises are let by rental agreement from month to month…(a) a notice of termination shall be served by the lessee on or before the due date for the payment of rent.”
While there is conflicting testimony as to what occurred, it appears that the Lessor did not receive formal notice until at least six days after the end of the month of June. Ms. Cullen claims the Lessor was often late picking up the rent payment, and knowing this she could have taken the steps necessary to ensure notice was received.
It is clear from other items filed that Ms. Cullen did have a mailing address for Mr. Dodds and could have ensured the proper notice was given by mail. Her own letter of June 4, 1998 stated “Should these repairs be carried out I will be satisfied. If not, I will be forwarding by mail my notice to vacate the premises by July 31. I remain, unsatisfied.” No notice was sent by mail, and in fact the tenant continued to occupy the apartment for another year. Ms. Cullen cannot rely on this statement, made a year previous, as proper notice.
The Commission reaffirms the finding of the Rental Officer that proper notice of termination was not served and the Lessor is entitled to rent for the month of August 1999.
In regard to the retention of the damage deposit, the Commission notes this matter was closed with the filing of a handwritten note from Mr. Dodds (Exhibit E-13) which states “deposit was put to pay rent as tenant requested” and a note from Ms. Cullen (Exhibit E-14) requesting “cancel any further action with reference to David Dodds and the security deposit”.
The Commission concurs with the decision of the Rental Officer.
Several other minor matters, such as $10.00 in outstanding rent were not addressed at the appeal, but were considered in the original decision of the Rental Officer. As they were not contested in the appeal the Commission sees no need to further consider the matters.
For the above reasons, the Commission denies the appeals by the Lessor and the Lessee and confirms the decision of the Director.Order
WHEREAS Debbie Cullen and David Dodds each filed an appeal against a decision of the Director of Residential Rental Property;
AND WHEREAS the Commission heard the appeal in Charlottetown on January 23, 2001;
NOW THEREFORE, for the reasons given in the annexed Reasons for Order;
IT IS ORDERED THAT
1. The appeal is denied;
2. Order LD00-206 of the Director of Residential Rental Property is confirmed.
3. Payment in due to the Lessor in the amount of $473.52.
4. Payment to the Lessor is to be made on or before March 15, 2001.
DATED at Charlottetown, Prince Edward Island, this 1st day of February, 2001.
BY THE COMMISSION:
Maurice Rodgerson, Panel ChairJim Carragher, Commissioner
Norman Gallant, 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.