LD23-224

Tenant application · eviction. Outcome: granted. A. The tenancy agreement between the parties shall terminate effective 11:59 p.m. on May 31, 2023. The Tenants shall vacate the Residential Property by this time and date. B. A certified copy of this Order may be filed in the Supreme Court and enforced by Sheriff Services as perm

Order text

Orders of the Director of Residential Tenancy
Docket 23-332 May 23, 2023
Introduction
[1] On May 1, 2023 the Tenants filed a Tenant Application to Determine Dispute (Form 2A) (the “Application”) with the Residential Tenancy Office (the “Rental Office”). The Application is disputing a Notice of Termination pursuant to subsection 61.(5) of the Act.
[2] Attached to the Application was a Notice of Termination by Landlord (Form 4A) dated April 23, 2023 effective May 31, 2023 (the “Notice”). The Notice was served on the Tenants for the following reasons:
1. You have permitted an unreasonable number of occupants in the rental unit;
2. You or someone you have allowed on the property has caused damage to the rental unit;
and
3. You have failed to comply with a material term of the tenancy agreement.
[3] On May 1, 2023 the Tenants served the Application on the Landlord by hand-delivery. On April 27, 2023 the Landlord served the Notice on the Tenants by posting it to the main entrance of the Residential Property.
[4] On May 16, 2023 a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Tenants appeared, representing themselves. The Landlord appeared, representing himself.
Issue to be Decided
i. Do the Tenants have to vacate the Residential Property due to the Notice?
Summary of the Evidence
[5] In September 2022 the Landlord and the Tenants entered into a verbal month-to-month tenancy agreement for the Residential Property. Rent is $1,200.00 due on the first day of the month, however, the Landlord reduced the rent to $1,100.00 due on the first day of the month. A security deposit of $1,200.00 was required and paid.
Landlord’s Evidence and Submissions
[6] The Landlord testified that he received numerous complaints from neighbouring tenants about having no parking spots. The Landlord stated that the Residential Property has four parking spots, but the Tenant’s take up all four parking spots. The Landlord stated that the Tenants are permitted three parking spots. Further, the Landlord stated that he has received complaints from the snow removal company regarding the Tenants’ parking, and not being able to remove the snow.
[7] The Landlord stated that he provided numerous warnings to the Tenants over the past months.
The Landlord stated that the Tenants have left the windows open during the winter months, which freeze the pipes and increase costs to heating.
[8] The Landlord stated that the Tenants failed their responsibility to properly sort the garbage for the Residential Property. Further, the Landlord stated that the common areas of the Residential Property were not kept clean. The Tenants have caused damage in the Residential Property, specifically, a damaged cupboard, and cracked pipes as a result of the open windows. The Landlord submitted into evidence numerous photographs of text message conversations with the Tenants, and photographs of the Residential Property.

Orders of the Director of Residential Tenancy

Tenant’s Evidence and Submissions
[9] The Tenants testified that only three people live in the Residential Property and that sometimes a friend may visit. The Tenants may use the parking spot, however, they only use the allowed parking spots. The Tenants admitted to sometimes opening the window due to a heating issue in the Residential Property, which makes it very uncomfortable. The Tenants use electrical heat to remedy the heating issue in the Residential Property. The Tenants denied the damage allegations and stated that the damage was there since they moved in. The Tenants stated that in December 2022 they apologized to the Landlord about some of the parking issues and have since corrected the issue. The Tenants stated that they are from a different province so the sorting rules for garbage are different. They apologized and have since learned the rules for sorting garbage. The Tenants denied the allegations that the common areas of the Residential Property are unclean.
Analysis
[10] The Landlord’s reasons for terminating the tenancy agreement are pursuant to sub-subsections
61.(1)(c), (f) and (h) of the Act, which state:
Landlord’s notice for cause A landlord may end a tenancy by giving a notice of termination where one or more of the following applies:
(c) there is an unreasonable number of occupants in the tenant’s rental unit;
(f) the tenant or a person permitted on the residential property by the tenant has caused unreasonable damage to a rental unit or the residential property; and (h) the tenant (i) has failed to comply with a material term of the tenancy agreement, and (ii) has not corrected the situation within a reasonable time after the landlord has given written notice to do so.
[11] The Officer notes that in such matters where there is a dispute over a Notice of Termination by Landlord, it is the Landlord’s burden or onus to prove, on a balance of probabilities, any and all reasons alleged in the Notice.
Reason 1: An unreasonable number of occupants in rental unit
[12] The Officer finds that the Landlord has not provided sufficient evidence to establish his claim that the Tenants have permitted an unreasonable number of occupants in the Residential Property. The Officer notes that the testimony of the parties suggests a fourth occupant resided in the Premises from October to December 2022, however, the Landlord was aware of this situation. Since January 2023 there is no evidence to suggest anyone else resides in the Residential Property other than the Tenants.
Reason 2: The Tenants have unreasonably damaged the Residential Property
[13] The Officer finds that the Landlord has not provided sufficient evidence to establish his claim that the Tenants have caused unreasonable damage to the Residential Property which would warrant a termination of the tenancy agreement.

Orders of the Director of Residential Tenancy

Reason 3: The Tenants have failed to comply with a material term of the tenancy agreement
[14] The Officer finds that the Landlord has provided sufficient evidence to establish that the Tenants have failed to comply with a material term of the tenancy agreement. First, the Officer notes that the parties are in a verbal month-to-month agreement, and based on the testimony at the hearing, the Officer finds that bother parties were aware of the parking arrangement for the Residential Property. The Officer finds that the Landlord has provided sufficient evidence to substantiate the on-going issues with the Tenants and their parking. Further, the Officer finds that the Landlord has provided numerous warnings to the Tenants through text message regarding the parking complaints. These warnings span from December 2022 to as early as May 1, 2023. As a result, the Officer finds that the Landlord as substantiate his claim and that the termination of the tenancy agreement is warranted. Therefore, the Notice is valid and the Application is denied.
Conclusion
[15] The Notice is valid and the Application is denied.
[16] The tenancy agreement shall terminate effective 11:59 p.m. on May 31, 2023. The Tenants shall vacate the Residential Property by this time and date.
IT IS THEREFORE ORDERED THAT
A. The tenancy agreement between the parties shall terminate effective 11:59 p.m. on May 31,
2023. The Tenants shall vacate the Residential Property by this time and date.
B. A certified copy of this Order may be filed in the Supreme Court and enforced by Sheriff Services as permitted by the Act.
DATED at Charlottetown, Prince Edward Island, this 23rd day of May, 2023.
(sgd.) Cody Burke Cody Burke Residential Tenancy Officer

Orders of the Director of Residential Tenancy

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 7 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.