LD24-162

Tenant application · eviction, compensation. Outcome: partial. A. The Landlord shall pay the Tenant $595.00 by July 7, 2024. B. The tenancy agreement shall end at 5:00 p.m. on July 7, 2024.

Order text

Orders of the Director of Residential Tenancy Dockets 24-194 and 24-245 May 21, 2024
Introduction
[1] The applicable legislation is the Residential Tenancy Act (the “Act”).
[2] On March 21, 2024 the Tenant filed the first Tenant Application to Determine Dispute (Form 2(A)) (the “First Application”) with the Residential Tenancy Office (the “Rental Office”). The First Application seeks a monetary order for compensation in the amount of $2,500.00. The First Application also sought an order that the Landlord repair and secure the Rental Unit. However, the parties agreed that the Rental Unit was repaired and secured prior to the hearing.
[3] The sole issue to be determined in the First Application is Tenant’s request for compensation.
[4] On March 21, 2024 the Tenant e-mailed the Landlord the First Application.
[5] On April 10, 2024 the Rental Office e-mailed the parties a notice of teleconference hearing (the “Notice of Hearing”), along with a copy of the First Application.
[6] On April 23, 2024 the Tenant filed a second Tenant Application to Determine Dispute (Form 2(A) (the “Second Application”) with the Rental Office. The Second Application requests the termination of the tenancy agreement; or in the alternative, a monetary order for compensation for moving expenses and loss of wages.
[7] On April 23, 2024 the Tenant e-mailed the Landlord the Second Application.
[8] On April 23, 2024 the Rental Office e-mailed the parties the updated Notice of Hearing, along with a copy of the First and the Second Applications.
[9] On April 29, 2024 the evidence package (“EP”) was e-mailed to the parties. The Landlord acknowledged receipt of the EP, however, the Tenant could not open the EP by e-mail. On April 30, 2024 the Tenant provided another e-mail address and the EP was sent to the new e-mail address. The Tenant acknowledged receipt of the EP, which contains 70 pages of documents.
[10] On May 2, 2024 at 11:00 a.m. a teleconference hearing was held before the Residential Tenancy Officer (the “Officer”). The Tenant and the Landlord’s representative (the “Representative”) participated at the hearing.
Issues to be Decided
i. Is the Tenant entitled to compensation for the Rental Unit being unsecured?
ii. Is the Tenant entitled to terminate the tenancy agreement or compensation?
Summary of the Evidence
[11] In August 2022 the parties entered into a written, fixed-term tenancy agreement for the period of August 1, 2022 to July 30, 2023. The parties renewed the fixed-term for the period of September 1, 2023 to September 1, 2024. Rent is $3,200.00 due on the first of the month, however, the rent was later reduced to $3,090.00. A security deposit of $3,000.00 was paid in August 2022.
Tenant’s Evidence and Submissions
[12] The Tenant submitted 14-pages of documents into evidence including: text messages, and a copy of an E-Ticket for an Air Canada flight.

Orders of the Director of Residential Tenancy Dockets 24-194 and 24-245 May 21, 2024 The First Application
[13] The Tenant stated that on March 8, 2024 he noticed the digital lock for the Rental Unit’s front entrance was not working. The Tenant stated that the digital lock would lock him out of the Rental Unit for extended periods of time and was intermittent. The Tenant stated that he informed the Representative via text message on March 8, 2024. The Tenant stated that he attempted to change the batteries, however, that did not resolve the issue.
[14] The Tenant stated that on March 11, 2024 the Representative’s son arrived at the Rental Unit, but he only changed the batteries. The Tenant stated that on March 14, 2024 he arrived to the Rental Unit and noticed the front door was open. The Tenant stated that nothing was taken, however, he felt that his enjoyment of the Rental Unit was negatively affected due to the Rental Unit not being secured.
[15] The Tenant stated that on March 16, 2024 he texted the Representative again to inform him of the
issue with the digital lock. The Tenant stated that the Representative informed him on March 22, 2024 that a locksmith would be arriving at the Rental Unit. The Tenant stated that the locksmith never came to the Rental Unit.
[16] The Tenant stated that on April 2, 2024 the Representative’s son arrived back to the Rental Unit and replaced the digital lock. The Tenant admitted that the Rental Unit has been secure since April 2, 2024. However, the Tenant stated that it is not reasonable to wait 25-days to have the Rental Unit secured. The Tenant questioned that if the son was going to replace the lock, why not do it on March 16, 2024. The Tenant is seeking $100.00 a day in compensation for the 25 days that the Rental Unit was unsecure.
The Second Application
[17] The Tenant stated that on March 12, 2024 he informed the Representative that he wanted to end the tenancy early. The Tenant stated that he asked the Representative if the tenancy could end on June 30, 2024, and the Representative requested June 7, 2024. The Tenant stated the parties discussed different end dates, and the parties agreed on the end date of June 22, 2024. The Tenant stated that the Representative changed his mind and did not permit the early termination. The Tenant stated that he relied on the Representative’s approval and made travel arrangements.
[18] The Tenant stated that he is seeking to end the tenancy on July 7, 2024. The Tenant stated that if he cannot end the tenancy, then he is seeking compensation in the amount of $1,096.24. The Tenant stated that this is for the plane ticket he will need to reimburse his employer for and for two days of lost wages.
Landlord’s Evidence and Submissions
[19] The Representative submitted 44-pages of documents into evidence including: text messages, a copy of the tenancy agreement, and a written note by a contractor.
The First Application
[20] The Representative did not dispute the Tenant’s timeline of events. The Representative stated that he responded to the Tenant’s concerns in a reasonable time. The Representative stated that within a few days of becoming aware of the lock issue, he sent his son to the Rental Unit to fix it.
[21] The Representative stated that the lock was working properly when his son left the Rental Unit on March 11, 2024. The Representative stated that on March 16, 2024, the Tenant informed him that the lock was still not working, and he contacted the locksmith. The Representative stated that the locksmith was on vacation, and did not contact him again.

Orders of the Director of Residential Tenancy Dockets 24-194 and 24-245 May 21, 2024
[22] The Representative stated that once he realized the locksmith was not going to be able to fix the lock quickly, his son returned to the Rental Unit and replaced the digital lock.
The Second Application
[23] The Representative stated that he was negotiating with the Tenant about ending the tenancy early.
The Representative stated that the text messages submitted into evidence show the nature of those discussions. The Representative denied the Tenant’s claim that he agreed to end the tenancy early.
The Representative stated that he has been advertising the Rental Unit.
Analysis
The First Application
[24] The First Application is made in accordance with clause 75 of the Act. The First Application seek a monetary order for compensation claiming that the Landlord breached the Act. The relevant provisions of the Act are as follows:
22. Tenant’s right to quiet enjoyment
A tenant is entitled to quiet enjoyment of the rental unit including, but not limited to, the right to (a) reasonable privacy;
(b) freedom from unreasonable disturbance;
(c) exclusive possession of the rental unit, subject only to the landlord’s right to enter the rental unit in accordance with section 23; and (d) use of common areas for reasonable and lawful purposes, free from significant interference.
27. Security devices
A landlord shall ensure that devices necessary to make the residential property reasonably secure from unauthorized entry are installed in the rental unit, including on any door giving access to the exterior of the residential property.
28. Obligation to repair and maintain
(1) A landlord shall provide and maintain the residential property in a state of repair that (a) complies with the health, safety and housing standards required by law;
and (b) having regard to the age, character and location of the rental unit, makes it suitable for occupation by a tenant.
[25] The Tenant initiated the First Application under the Act. The Tenant bears the onus of proving his claim on a balance of probabilities. This means that a decision-maker must be satisfied there is sufficiently clear, convincing and cogent evidence to support the claim(s) and the value of the alleged damage(s).
[26] The Officer finds that the evidence establishes that the Rental Unit was intermittently unsecured from March 8, 2024 to April 2, 2024. The Tenant is seeking $2,500.00 in compensation ($100.00 x 25 days) due to the Landlord’s failure to secure the Rental Unit.

Orders of the Director of Residential Tenancy Dockets 24-194 and 24-245 May 21, 2024
[27] The Officer finds that from March 8, 2024 to March 11, 2024 the Representative reasonably responded to the Tenant’s concern. The Representative’s son arrived to the Rental Unit and attempted to fix the digital lock. The testimony of the Representative suggests the lock was working at that point. The Tenant’s testimony was that the lock continued to not properly work, and on March 16, 2024 the Tenant again informed the Representative of the issue.
[28] Based on the evidence submitted by the parties, the Officer finds that from March 8, 2024 to March 11, 2024 the Landlord did not breach the Act, and took reasonable steps to repair the issue. Further, the Tenant did not inform the Representative until March 16, 2024 that the locks were not fixed.
The Representative cannot be held responsible for fixing something that he is not informed about.
[29] The Representative did contact a locksmith, but the evidence and the testimony submitted does not suggest that the Representative took any further steps until his son replaced the lock on April 2, 2024. The Officer finds that the Representative could have contacted another locksmith to see their availability, and/or had his son return to the Rental Unit much sooner.
[30] The Officer notes that the Act permits the Tenant the ability to have the repairs completed as an emergency repairs pursuant to clause 29(1)(c)(v) of the Act. The Act permits the Tenant this remedy of completing emergency repairs and then seeking compensation from the Landlord.
[31] Based on the set of facts in this case, the Officer finds that the Tenant is entitled to compensation for the Landlord’s delay in repairing and securing the Rental Unit. The Officer notes that the Tenant is requesting $100.00 per day. However, the Officer finds based on the set of facts in this case, and the alternate remedy available to the Tenant, the Officer finds $100.00 a day to be excessive as the Tenant continued to reside in and use the included services of the Rental Unit.
[32] The Officer finds that the Tenant is entitled to $35.00 per day from March 17, 2024 to April 2, 2024 in compensation for a total amount of $595.00 ($35.00 per day x 17 days). The First Application is allowed.
The Second Application
[33] The Second Application filed by the Tenant seeks to terminate the fixed-term tenancy agreement early. Clause 51(3) of the Act states:
51. Termination by agreement
(3) A landlord and a tenant may make a written agreement, other than a tenancy agreement, to end a tenancy.
[34] The Tenant stated that he believed the Representative agreed to end the tenancy, relying on the Representative’s words in the text messages submitted into evidence. The Representative stated that these were merely negotiations and after some thought, he changed his mind.
[35] The Officer finds that the text messages submitted into evidence establish that the parties were actively discussing ending the tenancy early. On March 12, 2024, in a text message conversation the Representative stated:
“June 30, yes.
June would be free In that case maybe you can leave June 7.
Actually June 21 would be better. I would still deduct a week.” (pages 17/18 of EP)

Orders of the Director of Residential Tenancy Dockets 24-194 and 24-245 May 21, 2024
[36] On March 13, 2024 the Representative informed the Tenant that he changed his mind about ending the tenancy earlier. The Officer finds that based on the March 12, 2024 text message conversation, the Tenant reasonably believed and relied upon the Representative allowing the Tenant to leave earlier than the fixed-term end date. The Officer finds that prior to March 13, 2024, the Representative did not provide any indication that he would refuse the Tenant’s request. The Representative’s only concern seemed to be the end date, which the Representative last indicated was June 21, 2024.
[37] The Officer finds that the Tenant has established valid grounds to end the tenancy early based on the parties’ agreement to terminate the tenancy early pursuant to clause 51(3). The Officer finds that the Tenant is entitled to terminate the tenancy earlier than the fixed-term end date. The Tenant is requesting July 7, 2024 as the end of the tenancy. The Officer finds this end date to be reasonable given the parties initial discussions. The Second Application is allowed.
[38] The tenancy agreement shall end at 5:00 p.m. on July 7, 2024. The Tenant is responsible for rent up to this date.
[39] The Officer dismisses the Tenant’s request for compensation for moving and lost wages.
Conclusion
[40] The First Application is allowed, in part. The Landlord shall pay the Tenant $595.00 by July 7, 2024.
[41] The Second Application is allowed. The tenancy agreement shall end at 5:00 p.m. on July 7, 2024.
[42] The Tenant is responsible for rent up to the date the tenancy ends.
IT IS THEREFORE ORDERED THAT
A. The Landlord shall pay the Tenant $595.00 by July 7, 2024.
B. The tenancy agreement shall end at 5:00 p.m. on July 7, 2024.
DATED at Charlottetown, Prince Edward Island, this 21st day of May, 2024.
(sgd.) Cody Burke Cody Burke Residential Tenancy Officer
NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals Commission by serving a Notice of Appeal with the Commission and every party to this Order within 20 days of this Order. If a document is sent electronically after 5:00 p.m., it is considered received the next day that is not a holiday. If a document is sent by mail, it is considered served on the third day after mailing.
Filing with the Court
If no appeal has been made within the noted timelines, this Order can be filed with the Supreme Court of Prince Edward Island and enforced as if it were an order of the Court.