Docket A-001-99
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Ronald and Sylvia Walsh (the Lessees) against Order LD99-005 of the Director of Residential Rental Property dated January 20, 1999.
Order LR99-03BEFORE THE COMMISSION
on Thursday, the 11th day of February, 1999.Ginger Breedon, Vice-Chair
Weston Rose, Commissioner
Mary Burge, Commissioner
Order
Participants
1. Appellant:Ronald and Sylvia Walsh (Lessees)
2. Respondent:
Burns Properties Inc.
Agent: Donald Burns (Lessor)
Reasons for Order
1. Introduction
This case involves an appeal under Section 25(1) of the Rental of Residential Property Act R.S.P.E.I. 1988, Cap. R-13.1 (the Act).
Ronald and Sylvia Walsh (the Lessees) are appealing Order LD99-005 (Exhibit E-6) of the Director of Residential Rental Property issued by John L. Keizer, Rental Property Officer, on January 20, 1999.
Order LD99-005 directs that the security deposit and interest of $254.15 for the involved rental arrangement between the two parties for Apartment C, 1 Hillside Avenue, Summerside, P.E.I. is to be paid to the Lessor.
The Lessees appealed this Order on January 26, 1999 (Exhibit E-7) on the basis that the Rental Property Officer failed to obtain a copy of the recorded message involving their notice to leave, failed to allow the Lessees to discuss the agreement between the Lessor and Lessees, failed to let the Lessees show that the Lessor was not advertising the vacant apartment enough and failed to let the Lessees show that it was unnecessary to file multiple charges.
The Commission heard the appeal on February 8, 1999 at the Commission's offices in Charlottetown, Prince Edward Island. Ronald and Sylvia Walsh, the Lessees, and Donald Burns, Agent for the Lessor, were present at 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-9. The Lessor's Agent also provided two additional documents pertaining to cleaning costs on the apartment unit and these were numbered E-10 and E-11.
The Lessees' position on the appeal can be summarized as follows:
The Lessees state that they phoned the Lessor's Agent on November 6, 1998, and gave notice that they would be moving out of the apartment unit during the month of November. They subsequently moved out of the unit on November 16, 1998.
The Lessees contend that during their phone conversation with the Lessor's Agent, they understood that he had agreed to their moving out of the unit and the termination of the rental agreement without the required notice period. The Lessees believe that the Lessor's Agent taped their phone conversation and that this tape would confirm that the Lessor's Agent agreed to the early termination of the rental agreement.
The Lessees also question whether the Lessor has made adequate effort to rent out the apartment after they vacated the unit. The Lessees point out that the Lessor ran advertisements in the Journal Pioneer from November 12, 1998 through November 28, 1998 but discontinued the advertisements at that time until December 12, 1998. The Lessees ask how someone can rent the apartment when it is not being advertised.
With respect to the condition of the apartment when they moved out, the Lessees contend that the apartment was clean and that nothing beyond normal wear and tear was present.
The Lessees conclude that the security deposit and interest should be returned to them.
The Lessor's position on the appeal can be summarized as follows:
The Lessor's Agent states his records show that he received a telephone call from the Lessees on November 9, 1998 informing him that they would be moving out of the apartment unit on November 23, 1998 to take up Senior Citizens Housing. The Lessor's Agent indicates that while he could not recall all the details of this conversation, he believes he simply acknowledged the Lessees' information as there was nothing he could do to prevent them leaving the apartment unit. The Lessor's Agent further states, however, that he did not agree to waive or reduce the required termination notice period for the Lessees. He points out that the Lessees signed the Lessor's "Landlord's Rules and Regulation" agreement (Exhibit E-5) which provides that:
15. The Tenant shall notify the Landlord 1 calendar month in advance of the date of vacating the premises.
He also notes the Act requires a Lessee to provide notice at least one month before the due date for payment of rent.
The Lessor's Agent further indicates that he uses a message machine to simply record messages from callers when he is not available to answer the phone. He does not tape conversations with his lessees and, therefore, does not have any tape of his conversation with the Lessees in this case.
The Lessor's Agent contends that he made more than reasonable efforts to rent the vacant apartment as quickly as possible in an attempt to mitigate any damages from the early termination of the rental agreement. The Agent points out that he has run advertisements in the local paper as indicated by the Lessees and has posted a sign in front of the apartment building. He further indicates that he did not advertise in the newspaper during the December 30, 1998 and January 12, 1999 period as he took some time during this period to do work on the apartment building.
The Lessor's Agent argues that he has also incurred costs in cleaning the involved apartment and that these, combined with the failure of the Lessees to pay the rent owing on the apartment as required through the termination of rental agreement process, minus the security deposit and interest still leave him substantially out of pocket. He questions what he can do about this situation.
The Lessor's Agent's final position is that the Director's Order should be upheld.
3. Decision
After considering all the evidence presented by way of documentation and testimony, and upon reviewing the Act and its application to the facts, the Commission confirms the decision of the Director of Residential Rental Property in Order LD99-005.
In reaching its decision, the Commission gave particular consideration to Section 11(2)(b) of the Act which sets out the following obligations for a lessee at the time this termination of rental agreement took place.
11(2) A notice of termination is to be served by the lessee
(b) if the premises are let from month to month, at least one month before the date for payment of rent, to be effective on the day preceding the due date.
The evidence in this case is that both parties were aware of this requirement. Furthermore, both parties agree that the Lessees gave notice of termination in November 1998 after the rent due date of November 1, 1998. The Lessees believe, however, that the Lessor's Agent accepted this termination notice as being effective the end of November and not the end of December as required by Section 11(2)(b) of the Act. The Lessor's Agent is very clear that he did not agree to waive the required notice period.
While the Commission could, depending on the specific circumstances, accept an early termination where both parties have so agreed, that is not the situation in this case. The Lessor's Agent does not agree. In these circumstance, the Commission must apply the requirements of the Act which, in this case, mean the Lessees are responsible for rent ($445) for the month of December 1998.
The Commission also does not agree with the Lessees' contention that the Lessor has not taken adequate effort to mitigate damages against them by attempting to rent out the vacant unit. The evidence is that the Lessor's Agent actively advertised the vacant unit for rent very shortly after being informed by the Lessees that they were leaving. The Commission believes these efforts more than met any obligations on the Lessor.
With respect to the Lessor's Agent's contention that the Lessor is owed more money than is available through the security deposit and interest, the Commission is limited to dealing with the matters before it; that being the application by the Lessor to retain the security deposit and the subsequent application by the Lessees for a determination of the security deposit. If the Lessor has interest in other issues related to this rental arrangement, the Lessor's Agent may wish to bring them to the attention of the office of the Director of Residential Rental Property.
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Ronald and Sylvia Walsh (the Lessees) against Order LD99-005 of the Director of Residential Rental Property dated January 20, 1999.
Order
WHEREAS
Ronald and Sylvia Walsh filed an appeal dated January 26, 1999 against a decision of the Director of Residential Rental Property ;AND WHEREAS
the Commission heard the appeal in Charlottetown on February 8, 1999;NOW THEREFORE
, for the reasons given in the annexed Reasons for Order;IT IS ORDERED THAT
1. The appeal is denied;
2. The $254.15 in security deposit and interest shall be paid to the Lessor after fifteen days have passed from the date of this Order.
DATED
at Charlottetown, Prince Edward Island, this 11th day of February, 1999.BY THE COMMISSION:
Ginger Breedon, Vice-Chair
Weston Rose, Commissioner
Mary Burge, 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.