Docket A-002-99
Order LR99-04

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Melvin Noseworthy (the Lessee) against Order LD99-014 of the Director of Residential Rental Property dated February 9, 1999.

BEFORE THE COMMISSION

on Monday, the 22nd day of March, 1999.

Ginger Breedon, Vice-Chair
Weston Rose, Commissioner
James Carragher, Commissioner

Order

Participants

1. Appellant:

Melvin Noseworthy (Lessee)
Kimberly Morris (Witness/Spouse)

2. Respondent:

Paul Dewar and Sybil Kemp (Lessors)
Represented by Paul Dewar

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. 1998, Cap. R-13.1 (the Act).

Melvin Noseworthy (the Lessee) is appealing Order LD99-014 of the Director of Residential Rental Property (Exhibit E-6) issued by Shayne Hogan, Residential Rental Property Officer, on February 9, 1999. Order LD99-014 directs that the rental agreement between the Lessee and Lessors for a mobile home site in Dewar's Trailer Park, Montague R.R. 2, is terminated as of February 28, 1999, and that the Lessee must vacate the mobile home site on or before that date. The Order was based on a finding that the Lessee had been persistently or habitually late in the payment of rent.

The Lessee appealed the Order on February 22, 1999 (Exhibit E-7). In appealing the Order, the Lessee indicated his reasons for appealing were that he could not move his family out in the winter time and that he needed six months because the trailer is to be sold.

The hearing for this appeal was scheduled for March 16, 1999 but was rescheduled to March 17, 1999 as requested by the Lessee. The Commission therefore heard the appeal on March 17, 1999 at the Commission's offices in Charlottetown, Prince Edward Island. Melvin Noseworthy and Kimberly Morris on behalf of the Lessee and Paul Dewar on behalf of the Lessors 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-9. These documents had been circulated to the Lessee and Lessors prior to the hearing.

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

The Lessee and Ms. Morris state that they have lived in their mobile home in the Lessors' Trailer Park for seven to eight years and have never caused any trouble. They further indicate that their mobile home was located in Dewar's Trailer Park when they purchased it.

They acknowledge that they have frequently been late in paying the rent for the mobile home site but also point out they have always paid the rent. They referred to the receipt records contained in Exhibit E-4, which show numerous late payments but also the fact that all payments were made.

The Lessee and Ms. Morris further state that they do not believe the real issue with the Lessors is the late rent payments, but rather more recent problems with the water system in the park and a related disagreement between the Lessee and Sybil Kemp, one of the Lessors. They contend other residents in the Dewar's Trailer Park pay their rent late and are not being treated in the same way as them.

The Lessee and Ms. Morris also state that the mobile home has two extensions built on it and that it would be very difficult to move from the Park. They also express concern over the possible disruption to their three school aged children if they have to move out at this time.

The Lessee and Ms. Morris indicate they are attempting to sell their mobile home and have, in the last two weeks, listed it with a real estate agent. They also note that they have a direct offer from another individual who is interested in buying the mobile home but is waiting for some type of settlement to obtain the money for the purchase. They state that they will accept the first opportunity to sell their mobile home whether received through the real estate listing or the previously identified potential purchaser.

The Lessee and Ms. Morris conclude that they have always paid the rent for their mobile home lot; that they are going to move out of the Park and, in an effort to do this, they are actively trying to sell their mobile home; and that they need some time (up to six months) to sell their mobile home before they can reasonably move.

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

The Lessors' representative states that the Lessee has been persistently late in paying the rent for the mobile home site. He also acknowledges that the rent has always been paid over the years.

The Lessors' representative denies that there is any other motive for seeking the termination of the rental agreement beyond the persistent late rent payments. He also refutes the Lessee's claim there are a number of other lessees in the trailer park who are persistently late in paying their rent.

The Lessors' representative states that he has had problems over the twenty-six years his Park has been operating with late and non payment of rent. He further states that he has taken a more active approach to dealing with these situations over the past five years and has had other lessees moved out because of rent payment problems.

The Lessors' final position is that the Lessee appears to be unhappy in the Trailer Park, that he has been persistently late making rent payments and that the rental agreement should be terminated and the Lessee moved out of the Trailer Park.

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 Director's Order terminating the rental agreement but varies, with conditions, the timing for the vacating of the mobile home site by the Lessee.

In reaching its decision, the Commission notes that the facts of this case are not in dispute. Both the Lessee and Lessors agree that the Lessee has been persistently or habitually late in paying the rent, but that the rent has always been paid. The Commission also noted the Lessee's contention that the Lessors' motive for wanting to terminate the rental agreement is not because of late payment of rent, but because of some other issues between he and the Lessors.

The Commission cannot speculate on what the Lessor's motives are beyond the information and evidence presented at the hearing. The Commission's final decision must be based on the facts presented and the relevant law.

Section 13(3) of the Act provides that:

13.(3) Where a lessee is persistently or habitually late in the payment of rent the lessor may apply to the Director for such order, including termination of the rental agreement as the Director considers just.

The Commission recognizes that a lessor is operating a business and, as such, requires timely and proper payment of rent. This is necessary to ensure that the lessor can meet his financial commitments, that the lessor does not have to spend additional time and money in chasing down rent payments and that the lessor has a fair opportunity to run a viable business.

The facts in this case are that there has been persistent and habitual late payment of rent by the Lessee. This practice is unfair to the Lessors and directly affects their ability to operate their business. The Commission therefore agrees with the Director's decision to terminate the rental agreement on the mobile home site in question in Dewar's Trailer Park.

In reaching this decision, the Commission has also considered the matter of the timing of the termination and the associated vacating of the lot by the Lessee. The Commission accepts the Lessee's statement that the actual removal of the long time mobile home and its later constructed extensions would be difficult. The Commission also understands that the Lessee is not creating a situation with his neighbours or the Lessors (the rent is being paid) which demands an immediate vacating of the mobile home site.

The Commission therefore believes a reasonable amount of time should be extended to the Lessee to either sell the mobile home in its current location or to physically remove it from the site. The Commission is not prepared, however, to provide the six months requested by the Lessee. The Commission believes a rental agreement termination date of June 30, 1999 is reasonable in this case. This date should provide adequate time for the Lessee to either sell the mobile home or to move it from the site.

In establishing the June 30, 1999 termination date, the Commission is also establishing a condition which must be met by the Lessee. This condition requires the Lessee to make the rental payments on the mobile home site on time and in the proper amount. If this condition is not met, the rental agreement will be terminated and the Lessee will have to vacate the mobile home site within 30 days.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Melvin Noseworthy (the Lessee) against Order LD99-014 of the Director of Residential Rental Property dated February 9, 1999.

Order

WHEREAS Melvin Noseworthy filed an appeal dated February 22, 1999 against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on March 17, 1999;

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

IT IS ORDERED THAT

1.    Subject to the conditions established in "2" below, the rental agreement between the Lessee and Lessors for the mobile home site in Dewar's Trailer Park is terminated as of June 30, 1999, and the Lessee must vacate the mobile home site on or before this date.

2.    The Lessee shall make the rent payments for the mobile home site in the proper amount and on the rent due date. If the Lessee fails to do this, the rental agreement shall terminate effective thirty (30) days following the involved rent due date, during which time the Lessee shall vacate the mobile home site.

DATED at Charlottetown, Prince Edward Island, this 22nd day of March, 1999.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Weston Rose, 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.