LD24-286

Landlord application · security deposit. Outcome: partial. I. The Landlords shall retain $675.00 from the security deposit. II. The Landlords shall return $729.50 to the Tenants by September 26, 2024.

Order text

Orders of the Director of Residential Tenancy Dockets 24-234 September 6, 2024
INTRODUCTION
[1] The applicable legislation is the Residential Tenancy Act (the “Act”).
[2] On April 15, 2024, the Landlords filed a Landlord Application to Determine Dispute (Form 2(B)) with the Residential Tenancy Office (the “Rental Office”) seeking to retain the security deposit. A copy was served to a Tenant (“T1”) on April 12, 2024.
[3] On August 1, 2024, a teleconference hearing was held before the Residential Tenancy Officer (the “Officer”). The Landlords, a Tenant (T1), and two Tenant witnesses participated in the hearing.
PRELIMINARY MATTER
[4] Both Tenants (T1 and T2) were named on the tenancy agreement but only T1 was named on the Application. On June 27, 2024, T2 was contacted by the Rental Office and T2 stated that he changed his mind about moving into the Rental Unit and moved out early. T2 stated he did pay a portion of the security deposit, which he would like returned, but he would not be participating in the hearing. The Rental Office provided T2 with a copy of the Application, the Evidence Package, and Hearing Notice, and T2 was included in all relevant correspondence after June 27, 2024. The Officer finds that both T1 and T2 should be parties to this matter.
ISSUE
Are the Landlords entitled to retain the security deposit?
SUMMARY OF EVIDENCE
[5] On November 22, 2022, the Tenants entered into a written fixed-term tenancy agreement for the period of December 1, 2022, to November 30, 2023, which then converted to a month-to-month agreement. Rent was $1,450.00 due on the first day of the month. A security deposit of $1,350.00 was paid. T1 vacated on March 22, 2024, but the Landlords allowed a friend of T1 to remain in the Rental Unit until April 1, 2024.
Landlords’ evidence and submissions
[6] The Landlords’ evidence is as follows.
[7] The Tenants took over possession of the Rental Unit from a previous tenant on December 1, 2022.
The Tenants and the previous tenant were friends, so the previous tenant left several items behind such as furniture, food, and cooking utensils. Before the Tenants moved in, the Landlords offered to clean and paint the Rental Unit but the Tenants had nowhere else to live so they declined the cleaning and painting. There are no photographs or inspection reports from before the Tenants moved in.
[8] On March 22, 2024, the Landlords met with T1 to complete a move-out inspection, as T1 was vacating that day. At that time the Rental Unit had not been cleaned and there were still personal items in the Rental Unit. The Landlords agreed there was no damage but told T1 that the Rental Unit still had to be cleaned before he vacated. The Landlords gave T1 permission to allow a friend to reside in the Rental Unit until April 1, 2024, as rent was paid for the month.
[9] On April 1, 2024, the Landlords inspected the Rental Unit after T1’s friend had vacated. The Rental Unit was found to be in an unclean condition, there was food left in the fridge, and there were still personal items in the Rental Unit. There was grease on the walls and mold on the ceiling and the Landlords stated the condition of the Rental Unit was in worse shape than when the Tenants moved in. The Landlords were not aware T1 had subtenants move into the Rental Unit or that T2 had vacated early until they were notified at the hearing.

Orders of the Director of Residential Tenancy Dockets 24-234 September 6, 2024
[10] The Landlords secured a new tenant for April 5, 2024, and they did not want to turn over the Rental Unit in an unclean condition. The Landlords could not find an available cleaning company so the Landlords and another individual cleaned the Rental Unit themselves. It took 75 collective hours to clean, which the Landlords stated works out to $18.00 per hour with the $1,350.00 security deposit. Photographs of the Rental Unit after T1 vacated were submitted into evidence.
Tenant’s evidence and submissions
[11] T1’s evidence is summarized as follows.
[12] T1 and T2 both signed the tenancy agreement but T2 moved out after fifteen days due to a conflict between the Tenants. T2 was never removed from the tenancy agreement. T1 had two subtenants move into the Rental Unit and he notified the Landlords about T2 leaving and the subtenants moving in.
[13] The Tenants took possession of the Rental Unit from a previous tenant who was friends with the Tenants. The previous tenant left several items in the Rental Unit such as furniture, food, and cooking utensils. Before the Tenants moved in, the Landlords offered to clean and paint but the Tenants declined the cleaning and painting.
[14] T1 agreed that he left food items and furniture for the next tenant as the next tenant was his friend.
T1 agreed the Landlords could retain half of the security deposit for cleaning.
[15] A Tenant witness testified that he was the person who was living Rental Unit prior to the Tenants.
The witness stated there were some scuff marks on the walls of the Rental Unit when he lived there.
ANALYSIS
[16] The Landlords testified that the Rental Unit appeared to be less clean when T1 vacated than when the Tenants moved in and they provided move-out photographs of the Rental Unit. However, the Landlords did not submit any “before” photographs into evidence to demonstrate the state and/or the condition of the Rental Unit prior to the start of the tenancy. The best evidence a landlord can provide for these types of applications is “before” and “after” photographs of a rental unit, accompanied with the inspection reports completed at the beginning and the end of the tenancy.
[17] As the Officer does not have sufficient documentary evidence to establish a baseline of the condition of the Rental Unit from when the Tenants moved in, the Officer finds that the Landlords have not provided sufficient evidence to establish that they are entitled to retain the entire security deposit for cleaning. The Officer finds that the Landlords may retain $675.00 of the security deposit, based upon the agreement by T1. The remainder of the security deposit and interest shall be returned to the Tenants.
CONCLUSION
[18] The Application is allowed in part.
[19] The Landlords shall retain $675.00 from the security deposit.
[20] The Landlords shall return the remainder of the security deposit plus interest to the Tenants by the timeline below.
[21] This Order will be served to the parties by email.

Orders of the Director of Residential Tenancy Dockets 24-234 September 6, 2024
IT IS THEREFORE ORDERED THAT
I. The Landlords shall retain $675.00 from the security deposit.
II. The Landlords shall return $729.50 to the Tenants by September 26, 2024.
DATED at Charlottetown, Prince Edward Island, this 6th day of September, 2024.
(sgd.) Mitchell King Mitchell King Residential Tenancy Officer
NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals Commission (the “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.