Order LR99-08 - A-006-99 - Rental Appeal - Gary Ripley v. Arlene McCarron (Oct. 7/99)

Docket A-006-99
Order LR99-8

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gary Ripley (the Lessor) against Order LD99-110 of the Director of Residential Rental Property dated August 25, 1999.

BEFORE THE COMMISSION

on Thursday, the 7th day of October, 1999.

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, Commissioner

Order

Participants

1.    Appellant:

Gary Ripley (Lessor)

2.    Respondent:

Arlene McCarron (Lessee)
Peter McCarron (Witness)

Reasons for Order

1. Introduction

The Appellant, Gary Ripley, is appealing under Section 25(1) of the Rental of Residential Property Act R.S.P.E.I. 1988, Cap. R-13.1 (the Act), Order LD99-110 (Exhibit E-5) of the Director of Residential Rental Property (the Director) issued by Twila M. Whalen, Director, on August 25, 1999. Order LD99-110 finds that rent in the amount of $368.42 on an apartment at 442 Queen Street, Charlottetown, P.E.I., is owed by the Appellant to the Respondent and that the Appellant is to pay this amount to the Respondent on or before September 17, 1999.

The Appellant appealed this Order on September 13, 1999. (Exhibit E-6). In so doing, he indicates that his reasons for appealing are as follows:

1.    As stated in Order dated Aug. 25/99 – Mrs. McCarron had full use of apartment until June 10/99 at which time locks were changed.

2.    Mrs. McCarron stated verbally and on paper that on June 3 she "had moved out" and "was not coming back". She asked for nothing.

3.    All food left in refrigerator appeared to be "time expired".

The Commission heard this appeal on September 30, 1999 at the Commission's offices in Charlottetown, P.E.I. Gary Ripley (Lessor), Arlene McCarron (Lessee) and Peter McCarron (Witness for the Lessee) 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-8. These documents had previously been circulated to the Appellant and Respondent.

The Respondent introduced a further exhibit at the hearing which was identified as E-9. This exhibit consists of two handwritten pages prepared by the Respondent and dated September 29, 1999. The content of this exhibit addresses the Respondent's request for reimbursement by the Appellant of direct costs and labour she incurred in cleaning the unit prior to her moving in.

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

The Respondent called him on the evening of June 3, 1999 and informed him she was moving out of the unit immediately, she would not be coming back and she was moving in with her daughter as this would be less expensive. The Appellant subsequently checked the apartment on June 4, 1999 and found that the Respondent had moved all her belongings out except some food items. He understood from this that the Respondent definitely had moved out and the apartment was vacant. He therefore moved to immediately advertise for another lessee.

The Appellant further indicates that he received a call from an interested party on June 10, 1999 seeking to move into the apartment starting immediately, with an effective occupancy date of June 15, 1999. The Appellant testified that at this time (i.e. June 10 or 11), he changed the locks to the unit to secure the unit for the new lessee.

The Appellant believes the Respondent had full access and use of the apartment until the locks were changed and that he should not have to return rent for this period. He also questions whether proper notice was given by the Respondent thereby affecting the distribution of the rent paid and possibly further rent owed.

On the matter of the Respondent's claim for costs related to the cleaning of the apartment, the Appellant's position is that the Respondent was well aware of the condition of the unit before renting it and moving in and had not requested him to have any work done on it. He also did not make any arrangement with the Respondent to clean the unit and, therefore, does not believe he should be responsible for any related costs.

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

The Respondent's testimony is that she rented the unit at 442 Queen Street and paid the $425 monthly rent on June 1, 1999. She subsequently found the unit to be too dirty to move into and she and her daughter thoroughly cleaned the unit. She then moved into the unit and spent the night of June 2, 1999 there. Peter McCarron also spent that night in the unit. They both found the unit cool and damp and when they attempted to obtain heat, they found their thermostat did not turn the heat on. They subsequently concluded the heat was controlled through a neighbouring unit in the building.

The Respondent further testifies she called the Appellant on June 3, 1999 and informed him she was leaving immediately, she would not be coming back and she could move in with her daughter and save money. She acknowledges she did not mention the apparent heating problem during the June 3, 1999 telephone conversation but that she did discuss this problem with the Appellant at some other time.

The Respondent also indicates that she did move most of her belongings out of the unit immediately but left some clothes and food in the apartment. She testifies that she went into the unit a few times after moving out but could not remember the specific dates. During this time, she spoke with the Appellant and informed him that while she was not in the apartment, it would continue to be her apartment until the end of June since she had paid her rent for the month and he could not rent it to someone else during this time.

With respect to her tenancy in the unit, the Respondent points out that when she went to the apartment on June 10, 1999 to pick up her food, she found that the locks had been changed and she could not gain entry. She also met the new lessee who was moving into the unit at 442 Queen Street. The Respondent therefore believes the Appellant should return the full $425 in rent for the month of June as she was refused access to the apartment.

She also believes she should receive $60 for cleaning supplies and her labour for the cleaning she carried out before she moved into the unit.

3.    Decision

After considering the evidence presented by way of documentation and testimony, and reviewing the Act and its application to the facts, the Commission confirms the Director's Order that the Appellant owes rent to the Respondent but varies the amount owing and the timing of the payment.

In making this decision, the Commission has concluded that, notwithstanding a number of other issues associated with this case (for example: whether heat could or could not be controlled from within the unit, whether the Appellant moved too quickly to re-rent, whether the Respondent really wanted to move out because she could save money by living with her daughter, whether appropriate notice was given, and so on), the only relevant matter to the disposition of the rent paid by the Respondent is the date on which the Respondent no longer had physical access to the apartment. From that point onwards, it would be clearly unreasonable to expect the Respondent to be responsible for rent on a unit to which she could not gain entry.

From the testimony provided in answers to direct questions from the Commission, the following information is available on the matter of the availability of the unit to the Respondent.

The Respondent had access to the unit through June 3, 1999.

The Respondent entered the unit a couple of times after June 3 but could not recall the dates.

The Respondent was not able to gain entry to the unit on June 10, 1999 as the locks had been changed and her keys no longer fit.

The Appellant's direct testimony is that he changed the locks on June 10 or 11 to secure the unit for the new lessee.

Drawing from this information, and facing the need to establish a specific date at which time the Respondent no longer had physical access to the unit, the Commission is left with the date of June 10, 1999. The Respondent's testimony is that she could not gain entry to the unit on this date. This, in turn, is supported by the Appellant's direct testimony that he changed the locks on the unit on June 10 or 11.

Section 6.7 of the Act establishes the conditions that must be met by a lessor or lessee in changing the locks to a residential premises.

6.7    Entry Doors

Except by mutual consent, the lessor or the lessee shall not during occupancy under the rental agreement alter or cause to be altered the lock or locking system on any door that gives entry to the premises.

When the Appellant changed the locks on the unit on June 10, 1999 without the consent of the Respondent, he took possession of the unit by eliminating the Respondent's ability to gain access to the unit. Clearly from this date forward, the Respondent can not and should not be held responsible for any rent.

The Commission therefore concludes that the Appellant, Gary Ripley, owes the Respondent, Arlene McCarron, a return of rent for the period of June 10, 1999 to June 30, 1999 inclusive (a period of 21 days) in the amount of $297.50 (that is, 21 days x $425).
30 days

On the matter of the Respondent's claim for cleaning costs from the Appellant, the Commission accepts that the Respondent did incur time and costs in cleaning the apartment. However, the Commission does not believe it can direct the Appellant to compensate the Respondent for these costs, as no evidence was given that there had been any agreement prior to the carrying out of the work for such compensation. It would be unfair to the Appellant to expect him to cover costs incurred by the Respondent without prior agreement.

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Gary Ripley (the Lessor) against Order LD99-110 of the Director of Residential Rental Property dated August 25, 1999.

Order

WHEREAS Gary Ripley filed an appeal dated September 13, 1999 against a decision of the Director of Residential Rental Property;

AND WHEREAS the Commission heard the appeal in Charlottetown on September 30, 1999;

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

IT IS ORDERED THAT

1.    The Appellant (Gary Ripley) owes a rent refund to the Respondent (Arlene McCarron);
2.    The Appellant shall pay a rent refund to the Respondent of $297.50;
3.    The payment of $297.50 by the Appellant to the Respondent shall be made on or before October 26, 1999.

DATED at Charlottetown, Prince Edward Island, this 7th day of October, 1999.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, 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.