Docket A-004-01 
Order LR01-04

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Donald Burns, agent for Burns Properties Inc. (the Lessor) against Order LD01-047 of the Director of Residential Rental Property dated March 22, 2001.

BEFORE THE COMMISSION

on Monday, the 14th day of May, 2001.

Maurice Rodgerson, Panel Chair
Arthur Hudson, Commissioner
Kathy Kennedy, Commissioner

Order

Participants

1.     Appellant:        Burns Properties Inc.
                             Agent: Donald Burns (Lessor)

2.   Respondent:      Tegan Benoit (not present) (Lessee)

Reasons for Order

1.  Introduction

Donald Burns is the Lessor appealing Order LD01-047 (Exhibit E-9) of the Director of Residential Rental Property (the Director) issued on March 22, 2001. 

The matter relates to a rental unit at 1 Hillside Avenue in Summerside for which the Lessor deducted $85.00 from the security deposit for damage to a bathroom door.

Donald Burns was present at the hearing.  The Lessee, Tegan Benoit was not, although the Commission provided written notice of the hearing, by mail, to the last available address for Ms. Benoit.  The notice was not returned, and Ms. Benoit has not contacted the Commission.

The Commission determined that Mr. Burns should be permitted to present his information. The Commission also determined the information provided by the Office of the Director of Residential Rental Property pertaining to the appeal and given by Ms. Benoit at the previous rental hearing would stand as her evidence to the Commission.

2.  Background

The Lessee occupied an apartment at 1 Hillside Avenue in Summerside.   Sometime during that occupancy the door to the bathroom was damaged.  When Ms. Benoit indicated she was moving out the matter of the damaged door was discussed and the Lessor indicated the door had to be repaired and either he could arrange the repairs or Ms. Benoit could arrange the repairs.

Ms. Benoit purchased a door and two individuals attempted to install it.  Both individuals signed statements (Exhibits E-7 and E-8) stating they could not install the door properly because the floor was warped.  

The letter of Josh Matheson states, "after several attempts to adjust the door and the frame, the door would still not shut properly. I asked Tegan how the floor could be warped so severely.  She said there was a shower leak that had caused an extreme amount of water damage to the walls and floors."  

Mike Noonan states, "upon installation, it was noticed that the bathroom floor and the doorframe were undeniably warped.  After investigation, the problem was linked to the extensive water damage from a prior shower leak."

At the hearing Mr. Burns testified that the Lessee did not make him aware of her plans to replace the door herself, she purchased a secondhand door with hinges already attached, and attempted to make it fit the existing doorframe.  He states the doorframe was altered in an effort to have the hinges on the new door fit the doorframe and this resulted in damage to the doorframe. 

The Lessor presented a written estimate for repairs to the door in the amount of $216.12 (Exhibit E-14). He states he retained $85.00 of the security deposit because that is what it cost to have the door repaired sufficiently to permit the new lessee to move in.  Repairs beyond the $85.00 have not been carried out.  Mr. Burns says he felt the Commission might wish to view the door as it exists. 

A second matter of contention is the timing of the Notice of Intention to Retain Security Deposit. 

Ms. Benoit stated at the original hearing that she did not receive the partial security deposit refund and the notice to retain a portion of the deposit until December 13, 2000, three days after the ten days required by law.  She did say it could have been a day earlier, and she presented the envelope with the post office stamp of December 11, 2000.

Mr. Burns stated the Lessee was still in the apartment December 1, 2000. The security deposit refund cheque was dated December 7, 2000 and was cashed December 12, 2000 (Exhibit E-15) so the Lessee had to have received it by December 12, 2000 at the latest which would be one day over the ten days.

3.  Decision

The Commission views two issues as being in contention: the damage to the door and the timing of the notice to retain a portion of the security deposit.

Mr. Burns presented three new pieces of evidence at the hearing, which were not available at the original rental hearing.  

1)    A copy of the Rules and Regulations signed by Tegan Benoit (Exhibit E-13) and dated January 14, 2000.  There are sixteen statements on the list including ones that relate to consent for changes to the apartment and return of the security deposit. 

2)    Exhibit E-15 is a copy of the cheque for security deposit returned to Ms. Benoit in the amount of $325.00 dated December 7, 2000 and a bank stamp on the back indicating it cleared the Halifax Data Centre on December 12, 2000, after being cashed by Ms. Benoit and signed by her.

3)    A quote on the cost of the full repair to the door (Exhibit E-14). 

It is clear from the evidence that the Lessee's attempt to repair the door failed.  Both individuals who installed the door stated so.  Mr. Matheson writes "after several attempts to adjust the door and the frame, the door would still not shut properly.....to install the door properly, the door and the frame would have to have been adjusted beyond its limits".  Mr. Noonan says, "the door and frame would have to have been modified beyond their limit in order for the door to shut properly."

The door operation was not in dispute when Ms. Benoit first occupied the apartment. No evidence was presented to the Commission to support the statements of water damage to the floor causing problems with Ms. Benoit's replacement door and the Lessor denies such damage.  He stated the problem with the door reflected the fact it was secondhand and inexperienced individuals attempted the installation. 

The fact remains, the door did not work properly. New lessees would expect a door to the bathroom to work properly, and the Lessor would be expected to take steps to ensure that it did.  Based on the evidence of both parties it was necessary for additional work to be undertaken after the Lessee vacated the premises in order to have the door work as it should.  The Commission finds the cost of $85.00 to be reasonable and awards same to the Lessor.

The matter of the timing of the notice to retain part of the security deposit is more troublesome.  The legislation is quite specific on this point and the Commission must exercise caution in varying the time requirements. 

The Rental of Residential Property Act sets out in Section 10 the requirements regarding Security Deposits and the return and retention of same.  Specifically, Section 10(4) states:

 "Subject to subsection (5), the security deposit, together with the interest set out in subsection (3) shall be returned to the lessee within ten days of the date on which the lessee delivers up possession of the residential premises." 

Section 10 (5) states:

 "The lessor may retain all or part of a security deposit and interest thereon where he believes the lessee is liable to the lessor for damage to the residential premises caused by a breach of statutory condition 4, or for outstanding rent, provided that the lessor, within ten days of the date on which the lessee delivers up possession of the residential premises or such longer period as the Director may permit, serves the lessee with a notice of intention to retain security deposit in the form prescribed by regulation." 

Conflicting evidence and statements have been made.  The stamp cancellation on the envelope mailed by Lessor, containing Form 8, indicates December 11, 2000 (Monday), which would normally indicate the letter was placed in the mail that day or a day earlier.  The date on the cheque is December 7, 2000, a Thursday.  The Lessee believes she received the cheque and notice on the 13th (Wednesday) or maybe the 12th  (Tuesday). The cheque cleared the bank data center on December 12, 2000 (Tuesday) meaning the very latest it could have been cashed was that same day.  

The Notice of Intention to retain part of the security deposit (Exhibit E-5) was dated December 7, 2000. Both the Lessor and Lessee state that during a telephone conversation on December 9, 2000 the Lessor's representative stated the security deposit was in the mail.

The Commission notes that from the evidence presented at the hearing the cheque cleared the bank on December 12, 2000. This would be either one day (if the Lessor's contention the Lessee was still in the apartment December 1) or two days (if Ms. Benoit vacated on November 30th as she stated) past the ten-day requirement. In either situation the timeframe is close to the ten days.

The Commission also notes that the Lessee applied to the Director for a determination on December 22, 2000, well within the 15-day timeframe provided, and about one week after the notice was received.  Therefore the Commission is satisfied the delay in receipt of the notice did not negatively impact on the Lessee's right to appeal.

Further, the fact that there was a telephone conversation between the Lessee and the Lessor's representative about the security deposit on December 9, 2000 during which it was stated the letter was in the mail, the Commission is prepared, in this instance and as provided for in Section 10(5) of the Act, to permit the longer period for the serving of the notice of intention to retain a portion of the security deposit.   

Order

WHEREAS Donald Burns, agent for Burns Properties Inc., filed an appeal against a decision of the Director of Residential Rental Property dated April 11, 2001;

AND WHEREAS the Commission heard the appeal in Charlottetown on May 8, 2001;

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

IT IS ORDERED THAT

  1.  The Lessor is entitled to withhold $85.00 from the security deposit as compensation for damage to the bathroom door.

DATED at Charlottetown, Prince Edward Island, this 14th day of May, 2001.

BY THE COMMISSION:

Maurice Rodgerson, Panel Chair

Arthur Hudson, Commissioner

Kathy Kennedy, 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.