LR95-8

Landlord appeal · eviction, security deposit. Outcome: dismissed.

Linked prior order: LD95-131

Order text

Order LR95-08 - A-009-95 - Rental Appeal - Benjamin Graham v. Errol Green & Heather MacDonald (Jul 14, 1995) Docket A-009-95 Order LR95-8 IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act , by Benjamin Graham (the Lessor) against Order No. LD95-131 of the Director of Residential Property dated May 29, 1995. Friday, July 14, 1995 Linda Webber, Chair James Nicholson, Commissioner Clayton Bulpitt, Commissioner Order Participants 1. Appellant Benjamin Graham (the Lessor) 2. Respondents Errol Green (the Lessee) Heather MacDonald Reasons for Order 1 Background The Lessee Errol Green leased premises at 52 Sydney Street, Charlottetown, P.E.I. from the Lessor Benjamin Graham on March 1, 1993. These premises were vacated some time in February of 1995. The Lessor served Notice of Intention to Retain Security Deposit (Form 8) dated March 8, 1995 on the Lessee. This notice stated that all light bulbs in the apartment had been removed, light fixtures were left dismantled, garbage was left inside and outside the apartment, the carpets in the living room and dining room had been ruined by ground in dirt, and the bathroom had not been cleaned. An Application Re Determination of Security Deposit (Form 9) dated March 24, 1995 was completed by Heather MacDonald on behalf of the Lessee and filed with the Commission. This application denied the allegations set out in Form 8. A hearing into this matter was held on May 1, 1995, and an Order (LD95-131) was issued on May 29, 1995. That Order stated that the Security Deposit of $215.50 should be returned to the Lessee. The Lessor appealed the Decision of the Director to the Island Regulatory and Appeals Commission by Notice dated June 6, 1995. This appeal was heard by the Commission on June 22, 1995. 2 Decision The Notice of Appeal in this matter stated that in the opinion of the Lessor his testimony, that of his wife Joanne Graham, her mother Rose MacInnis, and a letter of Rita Griffin had been ignored by the Director. The Lessor stated he maintained his original position that the apartment had not been cleaned and the condition it was in went beyond normal wear and tear. While "normal wear and tear" or "reasonable wear and tear" are phrases common to leases, the case law suggests that a judgment is going to be needed in each case to determine what is appropriate: "Reasonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces. The exception of want of repair due to wear and tear must be considered as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant being assumed. Haskell v. Marlow , [1928] 2 K.B. 45 (H.L.), as cited in Williams and Rogers on Landlord and Tenant , 6th edition, at p. 11-28. The evidence at the appeal was given orally by the Lessor, the Lessee, and Ms. Heather MacDonald, the Lessee's daughter. In addition the file included a letter dated April 10, 1995 from Rita Griffin, a photocopy of a bill for carpet, and a photocopy of a Maritime Electric bill showing when Errol Green was disconnected. The evidence indicates that the Lessee was in the hospital when his daughter and some friends removed his belongings and cleaned the premises in February. There is a conflict in that the original evidence of Ms. MacDonald was that they cleaned the premises on February 28, 1995 yet the power was turned off on February 19, 1995. In the context of all the evidence this discrepancy does not significantly undermine the position of the Lessee. The Lessor's complaint about "garbage" is unsubstantiated. When asked to be specific he stated there were catalogues and miscellaneous papers and a couple of posters left on the walls in the apartment. The Commission does not accept that these few items constitute "garbage left in the apartment". As for his allegations of garbage left in the hallway, the Commission believes the Lessee who stated none of the items identified were ever his and people often left things in the hallways. Towards the end of the hearing the Lessor stated that, "I'm not saying it was their furniture in the hallway", yet that was the clear impression he left with the Commission. As for the flooring, the Lessor admits that it "wasn't high-end carpet". It was foam-backed flooring, in place when the Lessor bought the premises in 1991. After more than four years of use it is likely to have some stains as normal wear and tear. The fact that the Lessor replaced the carpet is not evidence that it had undergone any significant damage. The letter from Rita Griffin saying the apartment was in "good condition" "when rented to the occupant" doesn't tell us which occupant she is referring to. Assuming it is Mr. Green, the comments are still too general to be of assistance. She may well have considered it to be in good condition after Mr. Green left. The condition of the bathroom was described as "filthy" with soap stains on the shower and tub enclosure and stains on the toilet and side of the bathtub. Once again Ms. MacDonald says it was cleaned, although she herself did not clean it. Whether or not the bathroom was cleaned is difficult to determine. The Residential Rental Property Officer contacted a Lois MacDonald who stated that she had cleaned the bathroom. Clearly her work was not up to the standards expected by the Lessor. The Lessor produced little evidence of the condition of the apartment when the Lessee moved in, except the Rita Griffin letter saying it was in "good condition", even assuming that the letter refers to the Lessee. The Lessee's evidence is that the condition of the premises left something to be desired when he moved in. As for the light bulbs, the Lessee states they were there when they left, the Lessor states they were not. In any event in our view this is not related to wear and tear. Other courts exist to deal with damage claims. Overall there is insufficient evidence to indicate that the condition of the premises showed damage beyond normal, reasonable wear and tear. The onus is on the Lessor to prove this and he has not met that onus. The security deposit will be returned to the Lessee. Accordingly, 1. The appeal is dismissed; 2. The Order of the Director is confirmed; and 3. The security deposit in the amount of $215.50 is to be paid to the Lessee on, or before, July 28, 1995. IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act , by Benjamin Graham (the Lessor) against Order No. LD95-131 of the Director of Residential Property dated May 29, 1995. Order WHEREAS Benjamin Graham filed an appeal against a decision of the Director of Residential Rental Property dated May 29, 1995; AND WHEREAS The Island Regulatory and Appeals Commission heard the appeal in Charlottetown on June 22, 1995; NOW THEREFORE , for the reasons given in the annexed Reasons for Order; IT IS ORDERED THAT 1. The appeal is dismissed; 2. The Order of the Director is confirmed; and 3. The security deposit in the amount of $215.50 is to be paid to the Lessee on, or before, July 28, 1995. DATED at Charlottetown, Prince Edward Island, this 14th day of July, 1995. BY THE COMMISSION: Linda Webber, Chair James Nicholson, Commissioner Clayton Bulpitt, Commissioner NOTICE Sections 13.(1) and 13.(2) of the Island Regulatory and Appeals Commission Act provide as follows: 13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction. (2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.